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Hatch Act probe nets hundreds; few penalized

Sep. 8, 2013 - 06:00AM   |  
By JIM McELHATTON   |   Comments
The Capitol dome is seen during a September sunrise.
The Capitol dome is seen during a September sunrise. (U.S. Capitol)

During the fall 2008 presidential campaigns by then-Sens. Barack Obama and John McCain, an Education Department civil rights attorney zipped off an email: “Let’s face it, even though WE KNOW many Republicans are inherently racist anyway ... most of them are not solely voting against Obama because he’s Black,” the lawyer wrote in message sent from an official departmental email account.

The lawyer went on to favorably compare Obama’s education credentials against those of McCain, adding “Please send this to your friends and colleagues who vote.” That was only one of 204 emails by the attorney that investigators thought potentially unlawful under the Hatch Act, which bars political activity by civil servants in the workplace.

In a separate exchange, a former Education Department executive sent an email on her work account about an upcoming sportsman-themed fundraiser for the McCain campaign. “Feel free to forward this to anyone who you think might be interested in attending,” the message read.

In all, 870 Education Department employees — roughly one out of five at the agency — were found by investigators to have sent at least one email containing the name of a 2008 political candidate.

Of those employees, the department’s inspector general’s office referred 21 cases to the Office of Special Counsel, the government’s top enforcer of the Hatch Act. The Hatch Act bars partisan activity by civil servants in the workplace. Among other activities, the Act prohibits “participation in political activities while on duty, in uniform, in any room or building occupied in the discharge of official duties.”

Under the Act, federal employees aren’t supposed to use e-mails or social media to “distribute, send or forward content that advocates for or against a partisan political party, candidate for partisan political office or partisan political group,” according to OSC’s website.

The OSC found Hatch Act violations by six employees but issued warnings and declined to discipline any. In five of the six cases, the Education Department took administrative action that consisted of either “oral counseling” or “counseling,” records show. The department did not divulge what, if any, action it took in the sixth case.

Committed to enforcement?

The case raises questions about how committed agencies are to enforcing the Hatch Act as well as the amount of time spent by the employees reading and writing politically oriented emails.

Federal Times reviewed hundreds of pages worth of email traffic, obtained recently through a Freedom of Information Act request, sent to and from the six Education Department employees who were found by OSC to have violated the Hatch Act. The employees’ names were redacted in the internal emails obtained by Federal Times.

With so many department employees sending politically charged emails, IG investigators were forced to narrow the scope of their probe. They zeroed in on employees who sent 35 or more emails and on those sending five or more messages involving rallies. Those in supervisory roles who sent five or more messages or employees who sent one or more campaign fundraising emails also came under scrutiny.

Of the 21 cases referred to the OSC for enforcement, three of the targeted employees left the department before OSC decided whether violations occurred.

Both the civil rights lawyer and the department executive were among those found to have violated the Hatch Act.

The correspondence reveals more than partisan political activity, as some employees appeared to have run afoul of time and attendance rules, spending significant work time online chattering about politics.

A management analyst in the department’s Office of the Chief Financial Officer, for example, generated 217 emails identified as potentially promoting a candidate — all of which were sent during business hours.

One of the messages began, “Oh dear God no McCain. ... When he went to Jerry Falwell and spoke at his University to appease the Christian right vote, I told myself I would never look in his direction again.”

In another case, the IG found 263 political emails sent during official hours by a program analyst in the Office of Federal Student Aid.

The records do not reveal how many employees leaned Republican versus Democrat, but correspondence released to Federal Times cut both ways politically.

In an emailed statement, Education Department spokesman Jim Bradshaw declined to discuss individual disciplinary actions. He said all political employees and many career employees are required to take annual ethics training.

“Our ethics division works diligently to ensure that employees participate in required training,” Bradshaw wrote in an email. “The division continually gauges any gaps in our staff’s understanding of the ethics rules based on questions and complaints it receives.”

New rules

Until recently, OSC had limited options in pursuing discipline. Violations meant automatic firing unless the Merit Systems Protection Board found, by unanimous vote, that a violation didn’t warrant firing, in which case suspension was an option. Under new rules put in place by Congress after this Education Department investigation, OSC now can also fine, suspend or reprimand employees.

Richard Painter, a Hatch Act expert and law professor at the University of Minnesota who was associate counsel to President George W. Bush, said the broader range of discipline options that are now available could have made a difference in the Education Department cases.

Minimal consequences

Still, he said he was concerned that employees appeared to get off the hook: “There should be some discipline when there is a violation or people are going to skate too close to the line or cross the line,” Painter said.

OSC does penalize feds for Hatch Act violations, but few cases result in disciplinary action compared to the number of warning letters issued each year. In fiscal 2010, for instance, OSC reported receiving more than 500 Hatch Act complaints. Officials issued 163 warning letters that year while filing seven actions for discipline with the MSPB.

In August 2012, OSC announced that two employees agreed to suspensions: A General Services Administration contracting officer who agreed to a 30-day suspension for inviting 23 people to an Obama fundraiser while at work and a Social Security Administration technology specialist who helped coordinate volunteer efforts at work for a gubernatorial candidate in 2010 and was suspended for six months.

In March 2012, OSC announced suspensions for two Veterans Affairs employees. One served a 14-day suspension for sending emails backing Obama and one message disparaging McCain’s running mate Sarah Palin.

Expanded discipline

OSC spokesman Adam Miles declined to discuss any specific cases, citing privacy rules. But in an email to Federal Times, he said OSC will discipline an employee “in cases where there is coercion (i.e. political activity directed at a subordinate), where there is solicitation of other federal employees and, in cases, where there is repeat activity or the person has previously been warned (i.e. the activity is knowing and willful).” He added that in cases that don’t meet these general thresholds, OSC issues warning letters.

He declined to say whether the Education Department cases would have turned out differently if OSC had more disciplinary options.

“OSC greatly appreciated Congress’ efforts to modify the Hatch Act’s penalty structure for federal workers,” he said. “The old system was overly restrictive and deterred agencies from referring potential violations to OSC. The changes will lead to better enforcement of the Hatch Act.”

However, OSC doesn’t enforce how employees spend their hours in the office. That’s up to individual agencies on whether to seek administrative discipline.

Hatch Act expert Scott Coffina, who was associate White House counsel under President George W. Bush from 2007 to 2009, said agencies have their own disciplinary policies addressing politics in the workplace as well as personal use of government computers.

“It’s a little concerning that you wouldn’t have more significant discipline than counseling,” he said.

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