Special Counsel Nominated to Join Merit Systems Protection Board

OSC Special Counsel Henry Kerner has been nominated to become an MSPB board member. His term at OSC has resulted in high-profile investigations of both Republicans and Democrats.

Kerner Nominated to Join MSPB

On July 3rd, President Biden nominated Henry J. Kerner to become a Merit Systems Protection Board member.

Mr. Kerner is currently the U.S. Office of Special Counsel (OSC) Special Counsel. His appointment for this position was confirmed in October 2017 after he had been nominated by President Donald Trump.

If he is confirmed for the appointment to the MSPB, Kerner’s appointment would result in a full contingent of Board members. He will be the third member of the MSPB. There is a quorum at the agency, which enables voting on issues that are before the MSPB, with only two members on board.

Between January 7, 2017, and March 3, 2022, the Board did not have a quorum of
members and could not vote on any petitions for review. The quorum was restored on March 4, 2022, when Member Raymond Limon and Member Tristan Leavitt, who were confirmed by the Senate on March 1, 2022, were sworn into their duties as members of the Board. Acting Chairman Cathy Harris, who was confirmed by the Senate on May 25, 2022, was sworn into her duties on June 1, 2022. The term of Member Tristan Leavitt expired on February 28, 2023.

The Hatch Act and Office of Special Counsel

One significant function of OSC, and the one that frequently attracts the most visibility, is the investigation of Hatch Act violations. While this is not the most frequent function of OSC, it is one of the most important functions.

The Hatch Act limits the 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.​​​​ ​​

Enthusiasm for a candidate or an issue will overcome individuals who never saw, never read about, or do not remember the periodic announcements issued regarding the Hatch Act and the impact it can have on a federal employee.

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.”

The reality is the Hatch Act is more often enforced against career federal employees rather than senior political appointees but that is not always the case as outlined below.

​A Hatch Act investigation is an administrative issue. Hatch Act matters are actually adjudicated before the Merit Systems Protection Board.​ This means Henry Kerner would move from his role at the OSC to the MSPB where Hatch Act issues and many other issues pertaining to federal employees are decided.

The Hatch Act and Kellyanne Conway

In 2019, the U.S. Office of Special Counsel (OSC) made national headlines when it sent a report to President Donald Trump finding that Counselor to the President, Kellyanne Conway, violated the Hatch Act by disparaging Democratic presidential candidates while speaking in her official capacity during television interviews and on social media.

Although the President and Vice President are exempt from the Hatch Act, employees of the White House are not. OSC’s letter to the President referred to Ms. Conway as a “repeat offender” and states: “Ms. Conway’s violations, if left unpunished, would send a message to all federal employees that they need not abide by the Hatch Act’s restrictions. Her actions thus erode the principal foundation of our democratic system—the rule of law.”

OSC recommended that she be fired from her job.

A federal judge dismissed a lawsuit that was trying to force the executive branch to punish senior White House Counselor Kellyanne Conway. The court reasoned that the plaintiff, a group called the Citizens for Responsibility and Ethics in Washington (CREW), lacked standing to file the lawsuit.

Conway’s comment on the case was “If you’re trying to silence me through the Hatch Act, it’s not going to work. Let me know when the jail sentence starts”.

Karine Jean-Pierre and the Hatch Act

Karine Jean-Pierre, the current White House press secretary, was also found by OSC to have violated the Hatch Act when she used the term “mega MAGA” to criticize Republicans during a press briefing. The Office of the Special Counsel found she had violated the Hatch Act, and she received a warning letter about her actions.

US Attorney in Massachusetts Resigns After OSC Report

In another case that gathered national headlines, the Massachusetts US Attorney resigned earlier this year after an OSC investigation detailed findings of misconduct.

Her resignation followed a report from the Office of Special Counsel (OSC) that found her guilty of several ethical violations and misconduct.

While Hatch Act violations are not uncommon and often involve violations for which the offender may not have suspected or known were in violation of the law, this case involving the U.S. Attorney for the former District of Massachusetts stands out. The characterization of the violations as “egregious” by the Special Counsel appears justified due to the extreme nature of the violations.

The report accused Rollins of using her office to influence the 2022 election for her successor as the Suffolk, Massachusetts district attorney, lying to federal investigators, accepting free tickets to a Boston Celtics game, receiving political contributions after becoming U.S. attorney, and attending a Democratic Party fundraiser featuring first lady Jill Biden without proper approval.

At OSC, Henry Kerner has investigated both Democrats and Republicans and found violations involving both parties’ members. We do not know when the Senate will vote on his nomination to become an MSPB member.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47