A new report from the Office of Special Counsel said that Xavier Becerra, the Secretary of the Department of Health and Human Services, violated the Hatch Act when speaking at an awards gala last year.
The OSC report, which was sent to President Biden, states that Becerra attended the Congressional Hispanic Caucus Institute Annual Awards Gala on September 15, 2022 in his official capacity as Secretary of HHS when he received an award.
Also in attendance was Senator Alex Padilla (D-CA) who was a Senate candidate at the time. Padilla presented the award to Becerra and identified him with his official title.
When accept the award from Padilla, Becerra said, “To my brother, my friend and Senator, and someone I will be voting for in a little bit more than a month, Alex Padilla, thank you so much, Senator, for being there for all of us. We are proud to have you as our Senator.”
Some of Becerra’s staff were recording the event and could be heard on the recording saying, “no, no, you can’t say that.”
Becerra said during OSC’s investigation that his remarks were made “off-the-cuff” and not something he had planned to say until he was at the podium. With respect to the comment about how he planned to vote for Padilla, Becerra said, “I don’t believe I thought of that as conveying anything more than what I as a responsible citizen would be doing in the near future.”
OSC noted in its report that Becerra received “ample information about the Hatch Act” since he took office in March 2021. By way of example, the OSC report states:
…just three months before the Gala, Secretary Becerra and other administration officials received Hatch Act‐specific training from the White House Counsel’s Office. The material presented during the training addressed speaking in an official capacity, stating that “Political remarks must be distinct from official remarks.” The training also warned that, while at an official event, they “may not encourage support for a candidate or remind attendees to vote for a particular candidate or group in an election” or “discuss candidates, elections, or partisan groups.”
The report sums up the situation conclusively by stating:
It is undisputed that Secretary Becerra attended the September 15, 2022 Gala in his official capacity as Secretary of HHS. His official remarks were reviewed by an attorney in the HHS Ethics Division prior to the event; he was introduced with his official title; and, while giving his speech, he discussed, among other things, the work of HHS and the Biden‐Harris Administration. Accordingly, because he was acting in his official capacity at the event, the Hatch Act prohibited Secretary Becerra from promoting or opposing candidates for partisan political office, like Senator Padilla.
Secretary Becerra crossed the line by conveying his electoral support for the Senator. Not only did Secretary Becerra express pride at having Senator Padilla as his Senator, he referred to him as “someone [he] will be voting for in a little bit more than a month….” In doing so, Secretary Becerra violated the Hatch Act’s prohibition against using his official authority or influence to affect the result of an election.
Moreover, Secretary Becerra should have known that the Hatch Act prohibited him from expressing support for Senator Padilla’s reelection. Since joining HHS, he has participated in comprehensive training on the Hatch Act, including a presentation from the White House Counsel’s Office just three months before the Gala. His statement was so obviously concerning that a member of his own staff, present at the Gala, gasped and said, “no, no, you can’t say that” immediately after hearing it.
Lastly, OSC considered Secretary Becerra’s explanations as to why he made the remarks at issue. Because Secretary Becerra is well‐informed about the Hatch Act’s prohibitions, he knew or should have known that his “longstanding personal relationship” with Senator Padilla did not exempt him from the Act’s prohibition about expressing, even extemporaneously, his electoral support for the Senator in an official speech. Similarly, this belief that his expressed intention to vote for Senator Padilla was merely the statement of a “responsible citizen” is belied by the fact that his speech was clearly conducted in his official capacity as HHS Secretary. Therefore, Secretary Becerra’s proffered explanations do not serve to mitigate the issuance of this Report to the President.
In a response submitted to OSC, Becerra wrote:
I did not intend to use my official authority or influence for purpose of interfering with or affecting the result of an election, and I regret this inadvertent violation. While I did not realize at the time that my off-the-cuff remarks concerning my personal voting intentions were in violation of the Hatch Act, I now understand why they were not permitted.
I have received additional counseling on the Hatch Act from the Department’s Ethics Division, and I will work hard to ensure that there are no future violations.
What is the Hatch Act?
The Hatch Act limits political activity of federal employees, and some state, District of Columbia, and local government employees who work in connection with federally funded programs.
The purpose of the law is to ensure federal programs are administered in a nonpartisan fashion, to protect federal employees from political coercion in the workplace, and to ensure federal employees are promoted based on merit instead of political affiliation or allegiance to a candidate or political party.
The most critical portions of the law are found in 5 U.S. Code § 7323 and § 7324. The Hatch Act means that a federal employee may not “use his official authority or influence for the purpose of interfering with or affecting the result of an election.”
Will Becerra Be Disciplined?
Whether or not the HHS Secretary receives disciplinary action for this violation of the Hatch Act will be up to the president.
OSC states in its report:
Violations by high level officials that go unaddressed particularly undermine the viability of the Hatch Act and its purpose of ensuring a federal civil service free of partisan political influence. Accordingly, consistent with OSC’s statutory mission, OSC presents this Report of Prohibited Political Activity, together with Secretary Becerra’s response, to the President for appropriate action, pursuant to the authority described 5 U.S.C. § 1215(b).
However, past precedent suggests that it is unlikely any disciplinary action will be taken. As federal human resources expert Jeff Neal wrote:
What happens to these senior political appointees when they violate the Hatch Act, which is intended to prohibit government employees from engaging in partisan political activity? Usually nothing. Sometimes a slap on the wrist, more often not even that fig leaf.
The truth is that the Hatch Act, at least in current practice, applies to the career workforce and not to senior political appointees. Like many other topics, this is one where lower ranking employees are held to standards that do not seem to apply to the senior folks.
He cited a couple of examples as evidence, one being then White House press secretary Jen Psaki being accused of violating the Hatch Act when she expressed Biden’s support for Democratic candidate Terry McAuliffe for Virginia governor as well as Housing and Urban Development Secretary Marcia Fudge when she violated the Hatch Act by expressing support for Democratic candidates running for office.