Hatch Act Complaint Dismissed

The MSPB recently upheld the decision of its administrative law judge (ALJ) dismissing a Hatch Act complaint filed by the U.S. Office of Special Counsel (OSC) for lack of specificity in the charging document. Special Counsel v. Smith, 2011 MSPB 69 (July 12, 2011). The ALJ upheld Smith's motion to dismiss the OSC complaint which "described the time of the alleged offenses as '[t]hroughout 2008 and stated that the alleged offenses involved emails and the drafting of documents directed toward the success of Barack Obama's candidacy for President.'"

Noting that "[t]he core of due process is the right to notice and a meaningful opportunity to be heard," the Board held that in the context of this case "due process mandates that notice be sufficiently detailed to make the reply opportunity meaningful."

"In keeping with this principle, the Board's regulations mandate that when OSC files a written complaint alleging a violation, the complaint must state 'with particularity any alleged violations of law or regulation, along with the supporting facts.' 5 C.F.R. § 1201.123; see also 5 U.S.C. §§ 1215(a)(1), 1216," the decision said. The Board found that the OSC complaint lacked the necessary particularity and supporting facts as the OSC failed to identify the dates the emails were sent, the recipients or the specific content other than they were allegedly sent to aid the Obama campaign.

On appeal OSC contended that it had met the Board's requirements for particularity, but the Board disagreed, noting that a respondent cannot adequately respond to a vague charge that he has drafted and/or edited documents or sent emails in the year 2008: "He must be put on notice regarding which documents and which emails OSC believes violated the law." The Board also agreed with its ALJ that attaching the documents supporting the charged misconduct to the complaint "can prevent confusion as to the conduct being charged and provide the requisite 'supporting facts.'" Furthermore, the Board disagreed with the OSC that its investigative interviews were sufficient notice to Smith as there were a large volume of documents presented and not all emails considered problematic were provided.

Because double jeopardy does not apply to administrative proceedings and the ALJ dismissed OSC's complaint without reviewing its merits, OSC can prepare a properly detailed new complaint in this matter. The Board agreed to accept OSC's request to amend the complaint as a request to refile and instructed the Clerk of the Board to docket the amended complaint as a new complaint.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to https://www.passmanandkaplan.com.