MSPB Finds Violation of the Hatch Act

In Special Counsel v. Wilkinson, MSPB Docket No. CB-1216-06-0006-T-1 (December 14, 2006), the Board reversed an administrative law judge's recommended decision finding that the respondent did not violate the Hatch Act and denying the Office of Special Counsel's request for disciplinary action. The Board found that the respondent violated the Hatch Act and remanded the appeal to the ALJ to determine the appropriate penalty.

The Hatch Act, found at 5 USC §§ 7321 - 7326, places restrictions on how, when, or in what manner a federal government employee may engage in political activity. Violations of the Hatch Act are enforced by the Office of Special Counsel (OSC) and charges are adjudicated by the Merit Systems Protection Board (MSPB).

In September 2004, a career federal employee from the Environmental Protection Agency (EPA), while on duty and while in a government office, used his government computer to forward a letter from the Chairman of the Democratic National Committee (DNC) by email to three EPA electronic mailbox groups, which resulted in 31 EPA employees receiving the email. The letter encouraged readers to take actions immediately after a 2004 Presidential election debate in order to support Democratic presidential candidate John Kerry.

The OSC filed a complaint with the MSPB alleging that the EPA employee had violated 5 USC § 7324(a)(1) and 5 CFR § 734.306(a)(1) by engaging in political activity while on duty, and had violated 5 USC § 7324(a)(2) and 5 CFR § 734.306(a)(3) by engaging in the political activity while in a government office. The administrative law judge (ALJ) issued a recommended decision granting the employee's motion for summary judgment. The ALJ's decision rested in large part on the finding that the definition of "political activity" under 5 CFR § 734.101 was too broad and thus did not warrant much consideration.

In Wilkinson, because the parties did not disagree on the facts of the case, the main issue was whether the employee's act of sending the DNC letter to 31 EPA employees constituted "political activity." The Board determined that the Act and its accompanying regulations defined "political activity" as "an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group," including taking an active part in political management or in a political campaign. The Board held that the DNC letter constituted campaign literature because it was intended to encourage readers to act toward electing a candidate to a partisan political office, and deemed the employee's dissemination of the DNC letter to be a distribution of campaign literature, which in turn constituted "political activity" under the Hatch Act.

The Board further concluded that although Section 7323(c) may be interpreted to allow a government employee on duty or in a government building or office to express his opinions on political subjects and candidates, the employee's email was merely an implicit expression of his opinion because, among other things, he forwarded the DNC letter without any comment of his own attached. Moreover, the Board remanded the case back to the ALJ to determine the penalty for the employee's violations. The Board advised the ALJ not to consider for the purposes of mitigation the employee's assertion that he was confused about information in a Hatch Act Advisory Memorandum because any confusion could have been resolved by asking OSC's opinion regarding the permissibility of forwarding the DNC letter by email.

The consequences that may flow from a violation of the Hatch Act are quite serious. The Hatch Act provides a presumptive penalty of removal for a violation of the Act, unless the Board finds by unanimous vote that the violation does not warrant removal, in which case the Board may impose a penalty of not less than a 30-day suspension without pay. Additionally, an employee may be debarred from federal employment for a period of time.

If you are uncertain about whether a particular activity is "political", then you should make an inquiry about your own specific circumstances to the Office of Special Counsel, online at: http://www.osc.gov/hatchact.htm.

This article also appears in FEDweek ( www.fedweek.com), a weekly newsletter for federal employees.