Federal employees sometimes feel the heat of the same political passions that can inflame the rest of the electorate during national elections. There is no prohibition against political passion but federal employees have to exercise restraint in some ways that do not always apply to those who do not work for the federal government.
If your urge to show support for a candidate while you are staring at the e-mail program on your computer screen at work becomes overwhelming, you may want to head down to the snack bar or the local Starbucks for a cup of coffee to cool off while restraining your urge to pontificate.
The number of cases involving federal employees who wrote about their political beliefs in an e-mail program and then hit the send button continues to grow. In at least some cases, the impassioned missive ended up in the arms of an investigator for the Office of Special Counsel (OSC)–the agency that seeks to enforce Hatch Act violations against those collecting a regular paycheck from Uncle Sam.
The line of cases is pretty clear that a federal employee can be disciplined or fired for violating the Hatch Act. Some judges working for the MSPB do not agree with this line of reasoning and they would distinguish between expressing a personal opinion and an impermissible act that can get a federal employee in trouble. But, for now at least, an additional loosening of the Hatch Act restrictions is not in the cards.
Two new cases have come out that show how an expression of political support can damage a federal career.
In the latest cases, OSC filed a complaint against Robert Wilkinson, an employee of the Environmental Protection Agency. He got an e-mail from the Democratic National Committee that urged supporters of presidential candidate John Kerry to take immediate action to support their candidate. The EPA employee complied with the urgent message and sent the letter on to another 31 people from his federal worksite.
That was a mistake. The Merit Systems Protection Board found that the action was prohibited political activity in violation of the Hatch Act. The law assumes that firing a federal employee is the appropriate penalty for a Hatch Act violation. That could still happen to Mr. Wilkinson but it has not happened yet. In this case, the administrative judge had recommended that the distribution of the letter not be considered a violation but an expression of a personal opinion. The Merit Systems Protection Board disagreed and sent the case back to the judge for a recommendation as to the appropriate penalty. That is probably good news for the employee as the judge may be disposed to recommend against removal after initially concluding there was no violation of the Hatch Act.
And, in a second case, a settlement of its complainst against an employee of the Social Security Administration has been reached. Michael Davis admitted he violated the Hatch Act by distributing an e-mail while on duty in a government building. The e-mail supported President George Bush and criticizing Senator John Kerry. The e-mail went to 27 people including other SSA employees. He left his government employment.
In a press release, 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.”
Buying an expensive cup of coffee can cost you a great deal of money over a year or more. But if it keeps your finger off the send button after you have articulated your political support for a candidate, it could be the best money you could spend.