With technology rapidly being introduced, and with people finding new ways to use the technology, applying older laws and principles will take time. Here are several cases that illustrate the point and provide some guidance for federal employees who may be tempted to hit “send” on their agency’s e-mail system before thinking through the possible consequences.
The Office of Special Counsel and the Merit Systems Protection Board have recently been involved in cases regarding the use of technology by federal employees and applying older laws to new situations.
In one case, an employee sent out an e-mail using his government computer to about 300 other people. The e-mail was in support of an event for a Congressional candidate.
The federal employee who sent the e-mail, Rocky Morrill, was suspended for 60 days for a violation of the Hatch Act. The Board found that removal was too harsh a penalty but upheld the 60 day suspension.
In another case, the Board decided to send a case back to the Administrative Judge (AJ) “to develop the record so that the administrative law judge could determine whether the specific messages sent by each respondent, in the context of the circumstances surrounding them, constituted political activity.”
In this case, one federal employee had sent out a message supporting George Bush for President. According to the Special Counsel, the e-mail was sent out from a federal building while the employee was at work and was sent to about 27 people. The e-mail contained a picture of President George Bush in front of an American flag with the message “I Vote the Bible.”
The other employee in this consolidated case sent an e-mail supporting John Kerry. The Special Counsel contends the e-mail was also sent from a federal building while the employee was on duty and contained the message: Why I am supporting John Kerry for President.”. It went to about 22 people.
The AJ concluded that the e-mails that were sent expressed an opinion on political topics and that this expression was allowed by the Hatch Act. The AJ also decided that the feds who sent the e-mail were not on sufficient notice that their actions violated the Hatch Act and that a policy of leniency should be followed and recommended dismissing the case (the two cases were consolidated into one decision).
But, said the Board, this analysis is not correct. It told the AJ that construing the facts in the most favorable way to the federal employees was in error and that the Office of Special Counsel may be able to prove that the people had engaged in political activity that violated the Hatch Act.
Moreover, decided the Board, it is not up to the Special Counsel to prove that the federal employees were on notice that their actions may have been in violation of the Hatch Act.
The Board directed the Administrative Judge to consider:
- the content of the message (whether its purpose is to encourage the recipient to support a particular political party or to vote for a particular candidate for partisan political office;
- its audience (e.g., the number of people it was sent to, the sender’s relationship to the recipients); and
- whether the message was sent in a federal building, in a government-owned building, or when the employee was on duty.
The message to federal employees? Think before hitting the “send” button. You don’t control the e-mail after it is gone and not giving enough thought to your message can be harmful to your federal career.