U.S. Office of Special Counsel  1730 M Street, N.W., Suite 218  Washington, D.C. 20036-4505

OSC: Twin Hatch Victories Will Help
Curb Abuse of Government Email Accounts
Federal Employees Violated Rules by Electioneering
Via Email While on Duty and in the Workplace  

FOR IMMEDIATE RELEASE - 1/4/07
CONTACT: Loren Smith, 202-254-3714, lsmith@osc.gov
    
WASHINGTON, DC – The agency that enforces restrictions on political activity by federal workers announced the results of two long-pending cases today. The U.S. Office of Special Counsel, which administers the Hatch Act, announced two favorable outcomes concerning its enforcement of the law prohibiting federal employees from sending prohibited partisan political email messages while on duty or in the federal workplace.

      First, on December 14, 2006, the Merit Systems Protection Board (MSPB) unanimously ruled in OSC’s favor by holding that Mr. Robert Wilkinson, an employee of the Environmental Protection Agency (EPA), violated the Hatch Act when he sent a partisan political e-mail message while on duty and in the federal workplace.

      OSC’s Complaint for Disciplinary Action, filed on December 15, 2005, with the MSPB, charged Mr. Wilkinson with engaging in prohibited political activity by forwarding, via his government e-mail system, a letter from the Democratic National Committee (DNC) that urged its recipients to take immediate action after the Presidential debate in support of then-Presidential candidate John Kerry. Mr. Wilkinson sent this e-mail to 31 EPA employees while he was on duty and in the federal workplace.

      The three-member MSPB held that Mr. Wilkinson’s dissemination of the DNC campaign literature to his fellow EPA employees by e-mail constituted prohibited “political activity” under the Hatch Act. In finding in OSC’s favor, the MSPB reversed the Administrative Law Judge’s (ALJ) initial decision and specifically rejected the ALJ’s finding that Mr. Wilkinson’s distribution of the DNC letter was merely an expression of his personal opinion. The MSPB also rejected the ALJ’s legal analysis and recommendation that the MSPB adopt as an element of proof of a Hatch Act violation that OSC establish that the alleged violator was given information regarding the Hatch Act such that a reasonably prudent person would have avoided the conduct that allegedly violated the Act.

      The MSPB remanded the case to the ALJ for a recommendation as to the appropriate penalty. The presumptive penalty for violating the Hatch Act is removal of the federal employee from his position with the federal government. However, if the Board by unanimous vote finds that the violation does not warrant removal, the Board may impose a penalty of not less than a 30-day suspension without pay.

      Second, OSC announced the favorable settlement of its Petition for Disciplinary Action filed against Mr. Michael Davis, a former employee of the U.S. Social Security Administration (SSA) in Kansas City, Missouri. Under the terms of the settlement, Mr. Davis admitted that he violated the Hatch Act’s prohibition against engaging in partisan political activity while in a government building during official working hours. Mr. Davis left federal government employ in 2005.

      OSC’s complaint, filed on January 14, 2005, with the MSPB, charged Mr. Davis with engaging in prohibited partisan political activity by distributing an e-mail supportive of President George Bush and criticizing Senator John Kerry (presidential candidates in the upcoming 2004 election) to 27 individuals, among them a number of fellow SSA employees. Mr. Davis was charged with forwarding this e-mail while on duty in a government building.

      In March 2005, the ALJ dismissed OSC’s complaint, although there was no dispute as to the content of the e-mail or that it was sent while the employee was on duty and in a federal building. The ALJ found that the e-mails did not constitute prohibited political activity.

      OSC petitioned the MSPB for review of the ALJ’s decision dismissing the complaint, arguing that e-mails encouraging the election or defeat of a partisan political candidate were indistinguishable from other types of political activity prohibited by the Hatch Act, such as wearing a political button while on duty or leafleting in a federal building. On June 12, 2006, the MSPB granted OSC’s petition for review of the Administrative Law Judge’s decision to dismiss the case.

      The MSPB agreed with OSC that the facts OSC alleged, if proven, could constitute a violation of the Hatch Act’s prohibition against political activity on duty or in a federal building. After the case was remanded to the ALJ for trial, a settlement was reached by the parties.

      The U.S. Office of Special Counsel is an independent investigative and prosecutorial agency. Among other functions, OSC investigates and prosecutes complaints alleging violations of the Hatch Act, and provides advisory opinions on the Act.

      Special Counsel Scott Bloch said, “It is important for federal employees to realize that sending e-mails on the job that advocate for a candidate for office may subject them to discipline and possibly the loss of their jobs. The federal workplace should not be used for political advocacy.”  

 

The U.S. Office of Special Counsel (OSC) is an independent investigative and prosecutorial agency. Among other functions, it investigates and prosecutes complaints alleging violations of the Hatch Act and provides advisory opinions regarding the Act’s requirements. For more information about OSC, please visit our web site at www.osc.gov or call 1-800-872-1855.
 

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