IEC Journal

Office of Special Counsel Developments

The Office of Special Counsel has completely revamped its web site. Of special interest: the expanded list of Frequently Asked Questions about the Hatch Act.

More news: The OSC settled what is believed to be a particularly significant Hatch Act case (reported here earlier when OSC filed the complaint). The case involved a DIA supervisor's attempt to influence subordinates' votes in the 2008 Presidential election.

Finally, OSC has also filed complaints for disciplinary action against three more federal employees.  Here are links to those press releases:

http://osc.gov/documents/press/2009/pr09_13.pdf

http://osc.gov/documents/press/2009/pr09_22.pdf

http://osc.gov/documents/press/2009/pr09_24.pdf

OSC Moves Against VA Med Center Admin Officer

The Office of Special Counsel announced that it is seeking the removal of a Department of Veteran Affairs Medical Center administrative officer for engaging in prohibited political activity in the workplace. The officer is alleged to have sent over 30 e-mails directed toward the success of parties or candidates in the 2008 Presidential election. OSC Press Release 8 11 09 is available.

OSC Activity

The Office of Special Counsel has posted several new press releases at its website, on topics including but not limited to the following:

 

PR09_11-- A Hatch Act complaint about a supervisor at DIA attempting to influence his employees in the 2008 Presidential election.

 

PR09_10-- An OSC finding that the Department of Transportation was derelict in failing to respond to aviation safety allegations.

 

PR09_09-- A Hatch Act complaint against a USPS employee for running in a partisan political election last fall.

 

PR09_06-- A Hatch Act complaint against a VA doctor for using his position to influence the 2008 Presidential election.

OCS: Call for Global Warming Protests Not Hatch Act Violation

FOXNews quotes OSC's response to calls to discipline a NASA scientist who called for public protests over global warming:

Officials at the U.S. Office of Special Counsel, which investigates possible Hatch Act violations, disagreed, saying Hansen is in the clear since it's an "issue-oriented activity," according to Hatch Unit attorney Erica Stern Hamrick. The majority of federal government employees are allowed to take an active part in political activities, while workers at other departments like the FBI, Secret Service and National Security Council are subject to more restrictions on their political activities.

More On Political Influence at DOJ

An Associated Press story discusses a new Department of Justice report that criticizes one particular official for politicizing that agency:

The investigation, conducted [by the Inspector General] with the agency's Office of Professional Responsibility, found that Schlozman did not tell the truth to Congress when he told Sen. Charles Schumer, D-N.Y., in a June 2007 hearing that he did not consider political affiliations in hiring.

Citing the "troubling conduct" described in the report, Justice Department spokesman Peter Carr said the agency has since reformed its hiring practices. "We are confident that the institutional problems identified in today's report no longer exist and will not recur," Carr said.

Qualifying the Latest Hatch Act Interpretation

Via Mark Stone, here are a couple of useful observations from Paul Davison about the OSC's recent Hatch Act interpretation previously reported here:

1.  This does not affect the Agency’s authority to prevent situations which may be disruptive in the workplace, even if wearing or displaying a particular item doesn’t violate the Hatch Act.
 
2.  If an item which displays a picture of Senators Obama or McCain (or otherwise indicates support of them) also references a political party, such as the Democrats or Republicans,  wear of that item still violates the Hatch Act.  It is always a violation to wear or display an item supporting or opposing a political party.

OSC Clarifies Post-Election Display Opinion

An IEC member alerted us to an OSC clarification of their post-election display opinion reported here on November 16. The key new ideas are that it will again be inappropriate to wear Obama items if and when he becomes a candidate for re-election, and that it is inappropriate to wear political party items at any time.

Thanks for the tip. We depend on our members to suggest topics, and we appreciate your support.

OSC Approves Post-Election Displays of Partisan Material

An Office of Special Counsel advisory opinion approves the post-election display of partisan material:

Even though Senators McCain and Obama will still be Presidential candidates until January 6, 2009, we do not believe that wearing their campaign t-shirts or displaying their pictures after Election Day is activity directed at the success of their candidacies.  Accordingly, the Hatch Act does not prohibit a federal employee from doing so, even while on duty or in the federal workplace.

In his Washington Post Federal Diary column, Joe Davidson noted the apparent incongruity of the OSC''s opinion emphasis on the fact that the election is not over until January 6.

Some Political Activity Compatible With Hatch Act

Joe Davidson's Federal Diary column looks at federal workers who are active in politics, within the scope of activities allowed by the Hatch Act.

Hatch Act Complaints Rise

The Washington Post's Federal Diary discusses the increase in complaints about Hatch Act violations.

Timely Hatch Act Reminder

Mark Stone, Chief, Government Ethics Law, HQ AFMC/JAA, Wright-Patterson Air Force Base, recently arranged to have a Hatch Act reminder appear on the screen of every computer at Wright-Patterson AFB each time the computer starts up. With Mark's permission, here is the slide show and a plain text version of the message. You may need to update your PowerPoint software to view the latter:

Download political_activity_for_wpafb_popups.pptx

Download slide_on_political_activity_for_wpafb_screensavers_30_sep_08.ppt (Plain text).

Time For Hatch Act Reminder?

With a very close race expected in this fall's Presidential election, numerous observers are predicting record high turnouts. A pamphlet from the Office of Special Counsel web site entitled Political Activity and the Federal Employee is a good resource for educating employees about the dangers of inappropriate political activity.

We do have one suggestion: While the desire to keep everyone out of trouble is understandable, try to avoid inadvertently giving the impression that any political activity by a federal employee is risky and should be avoided. This is inaccurate, and does a disservice to our employees and our democracy. The OSC pamphlet referenced above does an excellent job of putting allowed and prohibited activities in perspective.

Gov Exec Reviews Hatch Act, OSC

Government Executive magazine has an interesting overview (here & here) of the Hatch Act and the Office of Special Counsel, including many links to related articles.

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Hosting Political Events

The Fedmanager newsletter examines the issue of when a federal employee can host a political event at their home without violating the Hatch Act.

Hatch Act A Mystery To Some

Fedblog's Tom Shoop reports on three Michigan mail carriers discovered to hold simultaneous local elected government offices:

One of the officials, Tresha Graham-Mikek, a rural letter carrier, has been in office as Bethany Township clerk for 12 years. "I don't know what putting letters in mailboxes has to do with being a township clerk," she told the paper. "I've been a carrier for 23 years and the clerk for 12, and it's never been an issue. But the law is the law, and I understand that."

Attending Political Conventions

A useful July 29, 2008 memo on the topic "Attending Events at National Conventions" is attached.

DOJ Report on Political Screening Allegations

The Department of Justice report that's been in the news is available.

Campaign Involvement by Senior Officials

An HHS memo reposted at the NIH Ethics web site entitled "On the Road" During the Campaign Season: A practical Guide to Political Activity Restrictions (OGC, May 2008) has advice on what is and is not permissible for senior employees.

Updated June 30, 2008: Bad link corrected.

Fielding Memo on Contact With Presidential Campaigns

The National Institutes of Health web site has a copy of an April 22, 2008 memo by White House Counsel Fred Fielding entitled "Federal Agency Employee Contacts with Presidential Campaigns," along with a cover memo from the HHS DAEO.

On-the-Job Blogger Busted at NASA

Federal Computer Week reports on the suspension of a NASA employee for political blogging from his workplace:

A NASA employee has been suspended for soliciting donations and writing politically partisan blog posts and sending e-mail messages while at work, violations of the Hatch Act.

Office of the Special Counsel officials said a Johnson Space Center employee promoted local and state political candidates in 2006 and 2007 through his Internet writings.

The officials also found the employee solicited small campaign donations two times in 2006 through blogs.

OSC Is Investigated

Gov Exec reports on an investigation of controversial Office of Special Counsel head Scott Bloch.

Hatch Act & E-mail, Blogs

Stephen Barr's Federal Diary column has an update on OSC's interpretation of the Hatch Act. OSC's new, harsher treatment of e-mail had been reported here previously. Blogging about politics from an office computer is an obvious no-no, but Barr points out that blogging from home can also cause problems:

Presidential campaign Web sites, for example, encourage supporters to create blogs on the site to advocate the candidate's positions. They also usually carry a link for campaign donations, and that can be trouble for a federal employee, even when using a home computer. The OSC may view the donate button as soliciting for political contributions, another no-no under the Hatch Act, and set off an investigation.

OSC Response to EPA Hatch Act Allegations

The Office of Special Counsel has concluded that the appearance of Environmental Protection Agency (EPA) Administrator Stephen L. Johnson at a 2006 fundraising event for a candidate for U.S. Congress did not violate the Hatch Act.

OSC decided that Mr. Johnson was not personally responsible for the use of his official title in the e-mail used to distribute the invitation. Further, the EPA staff had not reviewed the list of the attendees, nor informed him of who would be attending the fundraiser, or where they were employed.

While there was no personal liability on the part of the EPA Administrator, OSC determined that there were deficiencies in EPA staff review processes, and recommended that EPA staff be aware of all parties and their roles in political events, including the attendees, and consider this information when advising on participation.

Hatch Act Refreshers & E-mail Enforcement

Even if not for the December White House directive on Hatch Act reminders, many standards of conduct officials would be sending out notices about this time, due to the ongoing primaries and upcoming Presidential election. It's tempting to simply recycle a Hatch Act notice used in previous years, but that may not be so wise this time.

As a recent Boston Globe story about investigations of employees accused of sending e-mails attacking Barak Obama illustrates, the Office of Special Counsel is emphasizing this area. As we explained in a previous post, there has been a significant change in OCS's legal interpretation since their 2002 "water cooler" memo. Making sure your employees understand this could prevent many problems.

Our Hatch Act archives contain links to many training resources. Let us know if you have a suggested addition in the form of a link or original material you would like to share.

Air Force Uses Flash for Ethics, Hatch Act Training

The Air Force General Counsel's Ethics Office has developed an ethics training program using a sophisticated Shockwave Flash format to provide an animated look. The program includes a module on the Hatch Act, a subject of recent interest. Thanks to Danae M. Johns for the heads-up on this cutting-edge resource.

OSC's Hatch Act Training Materials

OSC has asked us to relay the following:

The U.S. Office of Special Counsel (OSC), the independent investigative and prosecutorial agency with exclusive jurisdiction over the Hatch Act, last week advised all agency general counsels, designated agency ethics officers, and CIOs of the availability of OSC training materials to support the training that the White House recently requested agencies conduct. Specifically, we advised that a Hatch Act training video and pamphlet are available from OSC at our Web site (http://www.osc.gov/hatraining.htm). To avoid overburdening OSC’s servers, CIOs were asked to download the video to their own agency servers for use in their training programs.

Updated Dec. 12: James Mitchell advises us that the OSC video is also available with captions.

Hatch Act Training Materials

Pam Langer was kind enough to send an MS slide show that she uses for Hatch Act training. It's about a 4 MB download.

We appreciate Pam's contribution and welcome materials others are willing to contribute. This topic is particularly timely in view of the recent White House memo requesting agencies provide such training.

White House Memo on Hatch Act Training

White House Counsel Fred Fielding's November 27 memo requests agency heads to provide employees with Hatch Act training.

Disparities in Hatch Act Enforcement?

Government Executive reports on a Senate hearing about alleged inequities in Hatch Act Enforcement:

MSPB lacks jurisdiction over most Senate-confirmed political appointees and White House staffers, Akaka noted. In those cases, the OSC can send its findings to the president, but the president is not obligated to take any action.

National Treasury Employees Union President Colleen Kelley complained that lower level employees are treated more harshly and observed:

I would advise anyone who I represent that they do not want to be set up to be a test case before the Office of Special Counsel. If they believe for a minute that a manager could zero in on them and make them a test case for OSC, their interest in exercising their rights is squelched quite a bit.

OSC: Water Cooler Test Down the Drain

In 2002, the Office of Special Counsel issued an advisory opinion on the use of government e-mail for political purposes. OSC said this was improper, except for a limited "water cooler" exception. Only very limited use, the equivalent of oral informal discussions as is widely accepted in office settings, was OK.

That was then, this is now: OSC now has rescinded the advisory opinion, and points to some cases it says have evisiverated even the limited "water cooler" exception. Here's an OSC press release, featuring this quote from Special Counsel Scott Bloch:

The four MSPB decisions send a clear message to the federal community. The Hatch Act prohibits federal employees from sending e-mails that advocate for a political party or candidate for partisan public office while on duty or in a federal building, and engaging in such activity may subject them to disciplinary action, including the loss of their job. No political activity means no political activity, regardless of the specific technology used.

40-day Suspension for Hatch Act Violation

OSC issued a press release on Aug. 28, 2007, regarding a recent Hatch Act violation prosecution.  See http://www.osc.gov/documents/press/2007/pr07_14.htm

E-mail Alleged to Violate Lobbying Ban

Government Executive has a report on a controversy involving an e-mail that originated within the Farm Service Agency that encouraged agency employees to lobby Congress. The story links to a good USDA Ethics Office summary of the laws prohibiting such conduct.

IEC Training Modules

The IEC's Training Task Force is pleased to provide the following materials for 2007:

• Ethics--Your Key To An Improved Work Environment. This is intended for use as online training. It is distributed in MS Word format, with the intention that it be customized for each agency. The online DoD version will be available is a few weeks at their usual location.
• 14 Ethics Principles, General. MS PowerPoint slide show, with speaker notes.
• Representation Restrictions. MS PowerPoint slide show, with speaker notes.
• Outside Activities, Fundraising and Hatch Act. MS PowerPoint slide show, with speaker notes.

UPDATED July 9 to better explain the Ethics--Your Key To An Improved Work Environment training module.

OSC Reports More E-Mail Hatch Act Violations

A Government Executive article reports a large increase in complaints about the use of e-mail to forward political information, which can be a Hatch Act violation, depending on the scale of the use. An excerpt from the article notes:

In one of the highlighted cases, an EPA employee was found in violation of the law for forwarding a letter from the Democratic National Committee to 31 agency co-workers that urged support for then-presidential candidate Sen. John Kerry, D-Mass. The punishment decision for the employee is still pending, although the lightest sentence under the law is a 30-day suspension without pay.

CRS: Hatch Act Memo

A Congressional Research Service memo on the Hatch Act is available.

OSC Emphasizes MSPB Cases That Prohibit Political Emails in the Office

The Office of Special Counsel (OSC), in a press release on March 14, 2007, (www.osc.gov/press/2007/pr07_06.htm) reiterated four decisions of the Merit Systems Protection Board that highlight actions taken against Federal employees who used email at work to circulate their views on political parties and candidates.  The decisions provide clear examples of activities proscribed by the Hatch Act and actively prosecuted by OSC.

OSC Agrees to Confidential Settlement of Hatch Act Complaint

The Office of Special Counsel (OSC) announced in a recent press release that it agreed to a confidential settlement of a Hatch Act complaint against an employee who, while on duty in a federal building and using a government e-mail account, issued a political endorsement message to other federal employees, professional contacts, and friends.  According to the press release, because the employee acknowledged the Hatch Act violation (although maintaining it was unintentional), agreed to undertake Hatch Act training, and accepted a written reprimand, OSC agreed to a confidential settlement and is not releasing the employee's name.

Political Activites Causes VA Employee to Resign

  The U. S. Office of Special Counsel (OSC) settled a complaint against a Department of Veterans Affairs (VA) employee who had violated the Hatch Act by distributing campaign stickers from his office in a VA clinic.  As part of the settlement with the OSC, the employee agreed to retire.

   Among other things, the Hatch Act prohibits Federal employees from engaging in political activities while on duty, in Federal facilities or vehicles, or while in uniform. Under the Hatch Act, the presumptive penalty for violation is removal from Federal employment.

   OSC press release is at:  http:www.osc.gov/documents/press/2006/pr06_14.htm

Use of Government Email May Violate Hatch Act

  The Merit Systems Protection Board (MSPB) remanded to an Administrative Law Judge two cases in which Federal employees used email on the job and in a Federal building to send politically partisan messages.  The Judge had earlier dismissed the cases, but after the U.S. Office of Special Counsel (OSC) petitioned for an MSPB review, the Board agreed with the OSC that the emails violated the Hatch Act's prohibition against political acticity on duty or in a Federal building.

   The MSPB's action falls in line with earlier cases which held that employees' use of email while on duty or in a Federal building to send or forward politically partisan communications violated the Hatch Act.  Details are available at http://www.osc.gov/documents/press/2006/pr06_08.htm.

Attorney Fired For Political Emails At Work

The Office of Special Counsel announced on November 28, 2005, that an attorney for the Small Business Administration has been ordered fired for his use of Government resources, including email and official time, to engage in political activities. 

The attorney had sent over 100 emails involving political activities through his Government computer.

   The news release is at:  http://www.osc.gov/documents/press/2005/pr05_20.htm

"Electronic Leaflet" or "Water Cooler?"

A Government Executive column provides an update on the status of litigation concerning employee use of government computers to send political messages. OSC has appealed the administrative judge's decision in favor of an employee to the full MSPB. Two quotes from the column give the flavor of the debate:

OSC chief Scott Bloch: "[T]he e-mails were clearly a violation of the act and amounted to political leafleting in the workplace. You can't do through e-mail what you are prohibited from doing door to door in federal offices ... I'm confident that the MSBP will set the record straight on this issue."

The NTEU brief: "The Sims and Davis e-mails bear all of the hallmarks of the classic 'water-cooler' conversation. They amount to an exchange of views among personal friends and relatives, many of whom were colleagues accustomed to exchanging opinion on a variety of topics at the workplace."

Maryland Exec Candidate Resigns to Avoid Hatch Act Violation

Annapolis newspaper The Capital reports that Republican candidate for county executive Phillip D. Bissett has resigned from his job in the Maryland transportation department in order to avoid a Hatch Act violation.

A May 3 Office of Special Counsel advisory opinion advised Mr. Bissett that there was a potential conflict because the Maryland Transit Administration receives $90 million a year, $30 million of which goes to MARC, the agency he ran. The job paid about $92,000 a year. The OSC suggested that he could avoid a conflict by quitting his campaign or quitting his job. He chose the latter option.

The Washington Post concluded:

[Mr. Bissett's] dilemma aroused interest among politicians in the state capital, where several elected officials hold full-time jobs in local government.

"It has major ramifications not only for me personally but for other public officials as well," Bissett said.

In a question-and-answer session with The Washington Post last week, [OSC official] Galindo-Marrone acknowledged that "there are a number of state and local employees who are covered" by the Hatch Act "and don't realize it" because of misconceptions about the federal law. Hatch Act violators must abandon either their job or their candidacy, or their employer must surrender a portion of its federal funding.

Hatch Act Trips Up FAA Mayor Candidate

Under New Mexico law, mayoral races are supposed to be non-partisan. However, an FAA employee running for Mayor of Albuquerque, violated the Hatch Act when he used the word "republican" to describe his political philosophy, tranforming the race into a partisan contest, according to the MSPB. The U.S. Court of Appeals, Federal Circuit, recently affirmed the MSPB's ruling in McEntee v. Merit Systems Protection Board.

An article from last fall's Federal Times gives background information on the McEntee case, along with some perspective on trends in Hatch Act violations, including the following:

The OSC expects to receive 700 more requests for guidance this year about what is permissible under the Hatch Act than it did during the last presidential campaign in 2000.

Bloch said one reason for the growing number of questions and complaints is that employees are taking advantage of expanded freedoms to be politically active that were granted in 1993 when Congress loosened some Hatch Act restrictions. Those revisions permitted most government employees to organize political events and engage in partisan campaign activities--so long as they are done outside the office and after work hours.

"We are definitely seeing a rise in political advocacy by federal employees," Bloch said. "With more activism, there are more possibilities for violations."

Ralph Smith also has comments on the case.

MSPB Overturns Firing of Employees Due to Hatch Act Violations

Today's FEDSMITH discusses a Washington Post article about the MSPB's dismissal of OSC's attempts to have two Social Security Administration employees fired for violating the Hatch Act.  OSC issued a press release stating that it will appeal the decision to the full Board. Download osc_press_release_pr05_08.htm

US Court of Appeals for the Federal Circuit Upholds MSPB's Determination That Employee Violated Hatch Act

On April 15, 2005, the U.S. Court of Appeals for the Federal Circuit upheld the Merit Systems Protection Board's determination that an air traffic control specialist with the Federal Aviation Administration violated the Hatch Act in running as a candidate for Mayor of Albuquerque, New Mexico.  Although the mayoral race was intended to be nonpartisan, the employee campaigned as though it were a partisan race.  The Office of Special Counsel filed a complaint with the MSPB charging the employee with violating the Hatch Act.  The MSPB determined that the employee should be suspended from his FAA position for 120 days.  The employee appealed and lost at the Federal Circuit.  Download hatch_act.violation Fed Cir. case.pdf

OSC Reaches Settlement Agreement With Justice Attorney in Hatch Act Violation Case

The U.S. Office of Special Counsel issued a press release stating that it reached a voluntary settlement agreement with an attorney from the Civil Division of the Department of Justice (DoJ) with respect to the employee's admittance of violating the Hatch Act.  Specifically, the DoJ attorney co-hosted a political fundraiser in violation of 5 U.S.C. 7323(a)(2).  Under the terms of the settlement agreement, the attorney will serve a short suspension and DoJ agreed to provide Hatch Act training to employees within the Civil Division.  Download osc_press_release_pr05_07.htm

Limiting Activity of Elected Official /Employee

Most ethics counselors have come across a situation where a federal employee wants to run for political office. The Washington Post reports on a more unusual Hatch Act-type situation. Department of Defense rules prevent a reservist serving in Iraq who is also an elected official in the Maryland legislature from giving a videotaped address to the Maryland House of Delegates on Monday. The Post article says:

Brown recorded the speech in Baghdad last month after obtaining clearances from military authorities. The address, given in honor of George Washington, is part of the House's recognition of the Presidents' Day holiday.

Political Email by Federal Employees

Sending partisan emails on your government email service is getting to be a hot topic for OSC Hatch Act prosecution.  Prior to the 2004 election, OSC sent out an advisory about sending political emails to co-workers and possible Hatch Act violations that could result when such emails are sent to large groups of co-workers.  The OSC filed two cases on this issue in August, prior to the 2004 election, and as of January 14, 2004, has filed two more cases on this issue.

The OSC noted in a press release about these most recent cases:

The U.S. Office of Special Counsel (OSC) filed two similar complaints for disciplinary action against Kansas City, Mo. based Social Security Administration (SSA) employees for sending politically partisan electronic mail messages while on duty, in violation of the Hatch Act.

The complaint against Michael Davis alleges that he sent an e-mail message to about 27 of his SSA coworkers while on duty and in his federal office building. The message contained a widely-circulated picture of President George W. Bush in front of an American flag with the statement “I Vote the Bible.” The text of the message contains several statements in support of President Bush, a negative statement about Democratic Presidential candidate John Kerry, and a statement urging that the reader to “Pass along the ‘I Vote the Bible’ button.”

A similar complaint against Leslye Sims, alleges that she sent an e-mail message to 22 people while she was on duty and in her federal office building. The subject of the e-mail was: “Why I am supporting John Kerry for President?” and is presented as a letter that appears to be written by John Eisenhower, son of President Eisenhower. The e-mail contained several reasons why the reader should vote for Presidential candidate, John Kerry, and not support the Republican Party.

The cases were filed with the Merit Systems Protection Board.   The MSPB decides if disciplinary action is  warranted, with presumptive punishment being removal, but minimum punishment is a 30 day suspension without pay.

For more information see http://www.osc.gov/documents/press/2005/pr05_02.htm

Hatch Act and Use of E-Mail

A press release at the Office of Special Counsel web site describes two recent cases in which the OSC brought complaints against employees who used government e-mail accounts to send political messages.

It is appropriate to take a cautious approach to counseling employees, but it would be best to consider these cases in the context of prior OSC guidance, particularly their 2002 advisory on the use of e-mail. That advisory approved the use of e-mail for the equivalent of "water-cooler" type conversations. Sending e-mails to 15 or 70 recipients, as in the cases that prompted the most recent complaints apparently is outside the scope of a "water-cooler" conversation and more like distributing "leaflets."

Employees Told They Could Not Participate in After-Work Political Activities Without Approval

The Government Executive reported that Customs and Border Protection employees in the Los Angeles area were told incorrectly that they could not participate in political activities outside of work without prior approval.