Hatch Act Violations

The Office of Special Counsel has concluded that Secretary Sebelius violated the Hatch Act, which limits political activities by federal employees. As The Hill reports,

“One of the imperatives is to make sure that we not only come together here in Charlotte to present the nomination to the president, but we make sure that in November, he continues to be president for another four years,” [Sebelius] said [at an official appearance in February 2012], according to the OSC report.

She also ventured into state politics, urging the defeat of an anti-gay-marriage ballot proposal and saying it’s “hugely important to make sure that we reelect the president and elect a Democratic governor here in North Carolina,” the OSC report says….

The investigative office said HHS reclassified the trip from “official” to “political” after Sebelius made the comments.

The Democratic National Committee also reimbursed the government for the cost of the trip, according to the OSC.

One item that I hadn’t seen much reported is that federal law expressly imposes a statutory minimum penalty for any violation of the Hatch Act, no matter its magnitude: at least 30 days’ unpaid suspension, see 5 U.S.C. § 7326:

An employee or individual who violates section 7323 or 7324 of this title shall be removed from his position, and funds appropriated for the position from which removed thereafter may not be used to pay the employee or individual. However, if the Merit System Protection Board finds by unanimous vote that the violation does not warrant removal, a penalty of not less than 30 days’ suspension without pay shall be imposed by direction of the Board.

I’m not sure this is a sensible rule — the punishment may be too severe for a minor violation, and it may affect not just the employee but the effectiveness of the agency. Nonetheless that’s what the rule seems to be, and some penalties even for minor offenses are higher still; see, e.g., Special Counsel v. Mark (MSPB Aug. 2, 2010), which imposed a 120-day suspension without leave for one presidential campaign fundraising e-mail forwarded by an IRS agent “to numerous individuals including co-workers” “who were not under his control or authority.”

Now I’m not at all an expert on federal public employee law. Maybe there are provisions that I’m missing (if so, I’d love to hear about them). Maybe the OSC was mistaken in its interpretation of the Hatch Act. And it’s also possible that the Hatch Act mandatory discipline provision can’t apply to Cabinet-level officials — one can argue that the President’s independent constitutional authority to select his department heads limits Congress’s ability to order the dismissal of such high officials. Moreover, since Cabinet officials are apparently not under the MSPB’s authority, one can argue that the statutory provision wasn’t intended to apply to Cabinet officials.

My point here is only that, if one of Secretary Sebelius’s subordinates had done something similar, or even more minor, that person would apparently be facing a minimum penalty of 30 days’ suspension without pay.