Suspension for Hatch Act Violation

On the heels of its recent decision in Special Counsel v. Pattie Ware, 114 MSPR 128 (June 9, 2010), in which the MSPB ordered Ware's removal from her position with the Department of the Treasury's Bureau of Engraving and Printing for violations of the Hatch Act, the Board issued its decision in Special Counsel v. Phillip Mark, 210 MSPB 159 (August 2, 2010), overruling the administrative judge's (AJ) penalty of removal, and instead imposing a penalty of a 120-day suspension for the respondent, Mark. In what were seemingly less egregious violations of the Hatch Act than the violations warranting removal in Ware, Mark's suspension serves as a harsh reminder of the zero tolerance policies that both the Office of Special Counsel (OSC) and MSPB have toward violations of the Hatch Act by federal employees.


The respondent, an Internal Revenue Service (IRS) Revenue Agent, violated the Hatch Act when he forwarded one campaign e-mail, from then-presidential candidate Barack Obama soliciting online contributions, to a number of individuals, including some co-workers, MSPB found. In the forwarded e-mail, Mark added the following editorial: "FYI…if you want to help out the campaign! PS…If you are tired of getting e-mails from me, just let a brotha know!" The respondent forwarded the e-mail while on duty, from his government office, and it contained his name, title, group, duty location, and telephone number.

In his petition for review, Mark admitted that he violated the Hatch Act. His primary contention on appeal to the Board was that his offense warranted a 30-day suspension instead of the removal handed down by the AJ. The AJ had determined that because the respondent had admitted to three of the four counts with which he was charged, that this was sufficient to support removal.

In its decision, the Board only considered the issue of penalty as Mark had not contested the violation. In considering whether removal is warranted for a Hatch Act violation, the Board considers a set of factors, including the following: (1) the nature of the offense and extent of the employee's participation; (2) the employee's motive and intent; (3) whether the employee had received advice of counsel regarding the activity at issue; (4) whether the employee ceased the activities; (5) the employee's past employment record; and (6) the political coloring of the employee's activities.

The Board held that the AJ properly found that Mark's violation was a serious matter, particularly because some of the e-mail recipients were federal employees, he sent the e-mail from his work computer, and he sent it while he was on duty. However, the Board noted that not all Hatch Act violations merit removal, and it distinguished the respondent's conduct from the conduct in Ware. Specifically, the Board pointed out that in Ware, the employee sent two e-mails seeking political contributions, one of which also invited a number of people to a fundraiser for Barack Obama. Making the conduct in Ware more serious was the fact that the employee solicited money from three government employees over whom she had authority. In contrasting the conduct in Ware with the conduct of Mark under the "nature of the offense" factor, the Board noted that the respondent only sent one e-mail, and he did not solicit from anybody over whom he had authority. The Board also found as mitigating under the "political coloring" factor, the fact that Mark was not a political operative or otherwise engaged in political fundraising. As such, the Board mitigated the penalty from removal to a 120-day suspension.

Of note for many federal employees is the fact that the Board was not sympathetic to Mark's argument that he was ignorant of the Hatch Act. Pointing out that the IRS had given him literature on the Hatch Act and that he had completed ethics training, the Board found that knowledge of Hatch Act was imputed to Mark and that his claims of ignorance did not support mitigation. As we enter the final stretch of hotly contested elections, it is important for federal employees to understand the gravity of the Hatch Act.

* 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.