Political passion can create problems for federal employees. Playing a role in our democracy is often a good thing but, for federal employees, the Hatch Act can create legal tangles that could cost you your federal job. A few times a year, the passion of a political campaign or issue takes over and some people find themselves in a legal jam as a result. (See, for example, Political Activity Trips Up Federal Attorney.)
The latest case: An employee of the Navy may be suspended without pay for 60 days for engaging in political activity while on duty or in a federal building.
An administrative law judge (ALJ) for the Merit Systems Protection Board (Board) granted a petition from the Office of Special Counsel (OSC) for disciplinary action against Rocky Morrill, a civilian employee at the Naval Inventory Control Point in Mechanicsburg, Pennsylvania.
Morrill was charged with using his government email account in support of a Congressional candidate.
ALJ Robert A. Giannasi found that, while on duty and in a federal building, Morrill, at the time president of an American Federation of Government Employees (AFGE) local, sent an e-mail with an attached announcement for a “Halloween party for Tim Holden,” a U.S. Representative seeking reelection.
Morrill sent the e-mail to more than 300 people. Giannasi, in finding that this message described the candidate in highly favorable terms and strongly encouraged attendance at the event, concluded that the text and the attachment of Morrill’s e-mail “obviously were directed toward the success of Mr. Holden’s reelection campaign.”
But Morrill apparently had strong political convictions. It wasn’t that he was not aware of the Hatch Act or its restrictions. According to the ALJ, Morrill was warned at least twice by the Navy that his previous communications to union members on political matters were in violation of the Hatch Act.
Perhaps he didn’t understand the restrictions. Perhaps he was not concerned or thought the ends justified the means. But it didn’t make any difference. The ALJ decided that Morrill had been given adequate notice that the Hatch Act prohibited employees from engaging in political activity while on duty. So, either he failed to ask questions to clarify the warnings he had received or he ignored them. Either way, he may not get paid for 60 days.
Readers who have seen decisions in other cases of this nature could be forgiven for wondering why he didn’t lose his job under these circumstances. Fortunately for him, the administrative law judge thought it was significant that the actions he took were in response to a request of the parent organization of his union. Also, he no longer holds the union office he held at the time of the violation. That, according to the ALJ, makes it unlikely he will do it again.
That does not mean that the Navy employee is out of danger of losing his federal job.
According to the Special Counsel’s office, the Board members will not consider the case because the presumptive penalty in a Hatch Act case is firing the offender. If all MSPB members uphold the ruling of the ALJ, he will not be fired. But, says OSC, "Unless the Board finds by unanimous vote that the violation does not warrant removal, removal will be ordered."