Hui Chen, the contracted compliance counsel at the Department of Justice, often talks about how the tone at the top is important to compliance officers.
The most recent was on May 19 when she tweeted: “An engaging read to kick off your weekend,” which linked to a March 13 New Yorker article titled, “Donald Trump’s Worst Deal,” which tells how Trump helped “to build a hotel in Azerbaijan that appears to be a corrupt operation engineered by oligarchs tied to Iran’s Revolutionary Guard.”
There’s also the May 16 tweet of a Washingtonian photo showing the entrance to the Trump International Hotel with illuminated arrow and wording imposed over the door saying, “Pay Trump Bribes Here.”
And then there’s the banner photo of her protesting outside the White House in orange coveralls and a cap that says “RESIST.”
Her posts come at a time when lawyers are facing increased public and ethical scrutiny for expressing their opinions online or in social media, according to a March 28 story by Corporate Counsel, an ALM publication. The story indicates that lawyers using social media often lack a framework for what is allowed.
Chen is an independent contractor with the DOJ fraud section. But even if Chen were a full-time federal employee, it appears that what she is doing is permitted under guidance issued by the U.S. Office of Special Counsel. The guidelines say that employees may not post on company time or in their official capacity, nor solicit political contributions. Chen, however, is careful to include a disclaimer on her Twitter page, “Not speaking on behalf of anyone but myself.”
She opened the Twitter account on May 2, explaining her goal is “to communicate-both-ways with the compliance community.”
But on May 10, one day after Trump fired FBI Director James Comey, she posted what seems to be her first anti-Trump message, posed as a compliance question. It asked, “What do you do if you are troubled by your organization’s ‘tone from the top,’ and feel you no longer believe in its mission?”
More anti-Trump posts have followed. Can she go that far and still keep her contract with the DOJ?
“It’s a close call and a gray area,” said Michael Gallion, a partner in Kelley Drye & Warren’s labor and employment group in Los Angeles. The fact that she is an independent contractor, Gallion said, gives the government even more latitude than if she were an employee, “but there is still a risk that she could file a wrongful termination or retaliation suit if she is let go.”
He said there have been a lot of developments in this area of employment law “and it is continuing to evolve.”
Gallion said most of the developments, such as recent pronouncements by the National Labor Relations Board protecting an employee’s right to criticize his employer in social media, lean toward freedom of expression. Of course, Chen is not a DOJ employee.
“But these [Chen's tweets] are really super-derogatory comments,” Gallion said.
“This calls into question her judgment,” Gallion continued. “It’s inappropriate for someone in her position.”
Chen may be wondering about her position as well. When asked for an interview about her tweeting, Chen replied, “Unfortunately, I am obligated to decline while I am still in this role.”
But on Monday, she tweeted the following: “I am not willing nor able to compartmentalize my values as an E&C professional, a citizen, and a human being.”
Copyright Corporate Counsel. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.