The Office of Special Counsel (OSC) which oversees potential Hatch Act violations ordered Keith Arnold to either resign his job with the National Oceanic and Atmospheric Administration (NOAA) or officially withdraw his candidacy for a U.S. Congressional seat in Washington State. Mr. Arnold did not blink and soldiered on with his campaign. (Arnold v Merit Systems Protection Board (U.S.C.A.F.C. No. 2023-1649 (nonprecedential), 12/13/23))
As most federal employees are aware, the Hatch Act prohibits partisan political activity for the vast majority of them. The Office of Special Counsel is tasked with enforcement.
Mr. Arnold was employed at NOAA in Washington State beginning in 2010. During the 13 years he worked as a federal employee, Arnold ran more than once for the 8th Congressional District seat in Washington State. This did not go unnoticed and he was warned several times that his actions violated the Hatch Act. As part of his campaign, Arnold referred to himself as a “proud federal employee of NOAA.” (Opinion p. 2). He acknowledged that he had been “told federal employees are mostly prohibited from running for Congress by a ‘law’ called the Hatch Act,” but he explained that he was continuing his campaign as a “fight for fairness.” (P. 2)
True, he consulted his ethics office to find out if he campaign would violate the act, but he threw his hat in the race before receiving the advice that yes, the Hatch Act prohibited him from running. Arnold carried on with his campaigns. Not surprisingly OSC notified Arnold that he was in violation of the law. OSC laid out two options: resign his NOAA position or withdraw his candidacy. “Mr. Arnold did neither.” (P. 3)
Following its mandate to enforce the law and prosecute violations, OSC filed a complaint against Mr. Arnold with the Merit Systems Protection Board, citing his Congressional campaigns in 2014 and 2016. The administrative judge found that Arnold had violated the Hatch Act and after a hearing to determine application of the “Douglas factors,” decided that removal was in order. The full MSPB agreed and the removal order became the agency’s final decision. (P. 3)
On appeal to the Federal Circuit, Arnold argued that the Washington State primary is “nonpartisan,” therefore neither his run in 2014 nor 2016 violated the Hatch Act. He asked the court to set aside his removal.
As the court notes in its decision, “We have upheld the Board’s conclusion that a federal employee violates the Hatch Act by running for a position, even as an independent, in the U.S. House of Representatives, because that is a partisan political office” covered by the Hatch Act prohibitions. (p. 5) The court did not agree with Mr. Arnold’s attempted distinction between a partisan political office and a partisan election, agreed with the Board that Arnold’s political activity was legally impermissible, affirmed the MSPB decision, and affirmed Arnold’s removal as the appropriate penalty. (P. 8)
In short, one who thumbs the nose at the Hatch Act, his agency ethics office, and the Office of Special Counsel will pay the consequences. On the bright side, Mr. Arnold is now free to run for the 8th District seat again without the constraints of his federal position.
