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

OSC Scores Victories in Email Cases
Triple Ruling by Board Will Aid Hatch Act Enforcement  

FOR IMMEDIATE RELEASE - 6/14/06
CONTACT: LOREN SMITH, 202-254-3714, lsmith@osc.gov
    
     WASHINGTON – The agency that enforces the Hatch Act won key rulings on the impermissible use of government email for partisan political reasons.

The U.S. Office of Special Counsel scored victories in its enforcement of the Hatch Act when the Merit Systems Protection Board issued rulings in the matters of Special Counsel v. Morrill, CB-1216-0027-T-1, and Special Counsel v. Davis and Sims, CB-1216-05-0012-T-1 and CB-1216-05-0013-T-1, on June 9 and 12, 2006.

     On June 9, 2006, the MSPB upheld a sixty-day suspension imposed against Rocky Morrill, a federal employee found to have violated the Hatch Act by sending an email while on duty and in a federal building that was directed toward the success of a candidate for U.S. Representative. In doing so, the MSPB accepted the Recommended Decision of the Chief Administrative Law Judge who adjudicated the case. On December 27, 2005, the Judge found that Morrill sent an email with an attached announcement for a “Halloween party for Tim Holden,” a U.S. Representative seeking re-election. Morrill sent the email while on duty and in a federal building to more than 300 co-workers and other individuals. The Judge found that the message described the candidate in highly favorable terms and strongly encouraged attendance at the event, and concluded that Morrill’s email was “obviously … directed toward the success of Mr. Holden’s re-election campaign.”

     On June 12, 2006, the MSPB granted OSC’s petition for review of a different Administrative Law Judge’s decision in Special Counsel v. Davis and Sims. The Judge had dismissed two OSC complaints for disciplinary action against federal employees who sent partisan political emails while they were on duty and/or in a federal building. The first complaint alleged that Michael Davis sent an email to about 27 people while he was on duty and in his federal office building. The email 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 email contained several statements in support of President Bush, a negative statement about Democratic Presidential candidate John Kerry, and a statement urging recipients to “Pass along the ‘I Vote the Bible’ button.”

     The second complaint alleged that Leslye Sims sent an E-mail to 22 people while she was on duty and in her federal office building. The subject of the email was, “Why I am supporting John Kerry for President” and it presented a letter that purported to be written by John Eisenhower, son of former President Eisenhower. The email contained several reasons why the reader should vote for Presidential candidate John Kerry and why the reader should not support the Republican Party.

     In March 2005, the Judge dismissed OSC’s complaints. Although there was no dispute as to the content of the emails or that they were sent while Davis and Sims were on duty and in a federal building, the Judge found that these emails did not constitute prohibited political activity.

OSC petitioned the MSPB for review of the Judge’s decision, arguing that the emails sent by Davis and Sims 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.

     The MSPB unanimously agreed with OSC, finding 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. The Davis and Sims cases have been remanded to the Judge for further adjudication.

     Special Counsel Scott J. Bloch commented, “New technologies like the internet have brought many wonders to society, but unfortunately, they often propagate the same old abuses. Government resources remain government resources, and federal employees may not use the government’s time and office space to engage in political activities. These are important rulings by the Board. We will continue to vigorously prosecute anyone who engages in political activity in the workplace or on duty, and those using email for this purpose should be especially aware that this decision subjects them to penalties, including removal from federal service.”

 

The U.S. Office of Special Counsel (OSC) is an independent investigative and prosecutorial agency and operates as a secure channel for disclosures of whistleblower complaints. Its primary mission is to safeguard the merit system in federal employment by protecting federal employees and applicants from prohibited personnel practices, especially retaliation for whistleblowing. OSC also has jurisdiction over the Hatch Act and the Uniformed Services Employment and Reemployment Rights Act (USERRA). For more information please visit our web site at www.osc.gov or call 1 (800) 872-9855.