Saturday, September 15, 2012

Office of Special Counsel Finds Hatch Act Violation Against HHS Secretary

Scales-redVery interesting story brought to my attention by friend of the blog, Dennis Nolan. Apparently, according to a story reported by Eugene Volokh at the Volokh Conspiracy blog, the Office of Special Counsel (OSC) concluded that during one speech Health and Human Services (HHS) Secretary Kathleen Sebelius violated proscriptions in the Hatch Act concerning political campaigning in the federal employment sector. 

One of the interesting questions is what the penalty should be for such a violation and does the OSC have the ability to enforce any type of penalty, such as a suspension from employment (as the statute requires in some instances for violations), against a high-ranking official in a coordinate branch of the government?  The OSC letter itself concludes:

In light of the President’s constitutional authority, Congress has determined that violations of the Hatch Act by such officers be referred to the President “for appropriate action.” See 5 U.S.C. § 1215(b). Accordingly, OSC hereby submits this Report of Prohibited Political Activity, together with a response from Secretary Sebelius, to the President.

It also appears from the OSC report that by Sebelius and her office themselves reclassifying the offending speech as a political one, they may have cured some, or all, of the Hatch Act violation.

I must admit that I really am not familiar enough with this area of federal sector civil service law to hazard a guess of what might happen further, if anything, and would certainly appreciate any insights that readers have in the comments section.


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No mandatory punishment for those that are nominated and confirmed short of impeachment or the president canning them.

Posted by: Per Son | Sep 16, 2012 6:31:34 AM

From the OSC website: "An employee who violates the Hatch Act shall be removed from their position, and funds appropriated for the position from which removed thereafter may not be used to pay the employee or individual. However, if the Merit Systems Protection Board finds by unanimous vote that the violation does not warrant removal, a penalty of not less than a 30-day suspension without pay shall be imposed by direction of the Board."

That remedy appears to contemplate a violation by a line/career Gov't employee, but I suppose that if MSPB is afforded discretion with respect to the career employee discretion would a fortiori be afforded the Chief Exec vis a vis his cabinet given the Art. II considerations (and leaving the politics to one side). I know that when I was a career Fed ee/Fed ee union official my colleagues and I took this most seriously and considered a violation to be potentially a "removal offense." I'm personally aware of an instance of ee removal for using an office copier for political purposes. Of course, my colleagues and I were also constantly irritated by what we saw as disparate enforcement of the Act against lower ranked career employees even as we noted obvious violations by senior officials going on all around us (c. 2000-2006). So while I think focus on Sibelius is -- shall we say -- a bit ironic, I'm pleased to see a little focus on a big fish, for once.

Posted by: Michael Duff | Sep 16, 2012 7:34:12 AM

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