GovernmentExecutive.com

A Merit Systems Protection Board judge recommended a 60-day suspension without pay for a Navy employee who sent an e-mail to more than 300 co-workers asking them to attend a party for a member of Congress seeking reelection.

But Rocky Morrill, a civilian employee at the Naval Inventory Control Point in Mechanicsburg, Pa., faces dismissal unless the full board unanimously supports the judge's recommendation for the lesser penalty -- suggested in part because he sent the message in his capacity as a union representative and is unlikely to repeat the offense.

The Office of Special Counsel filed a petition with the MSPB in August, arguing that under the Hatch Act, which prohibits federal employees from engaging in political activity while on duty or in a federal building, Morrill was not allowed to use his government e-mail account to promote a congressional election campaign.

"Despite changes in technology, particularly the rise of the Internet, it remains the law that government resources must not be used for political activities," Special Counsel Scott Bloch said in a statement. "The Hatch Act remains an important principle our office is dedicated to enforcing."

Robert Giannasi, the MSPB administrative law judge issuing the 26-page decision, wrote that Morrill was warned at least twice by the agency that his political communication violated the Hatch Act.

At the time, Morrill was president of an American Federation of Government Employees local. He sent the e-mail at AFGE's request. It included an attached announcement for a Halloween party for Tim Holden, D-Pa., who was seeking re-election to Pennsylvania's 17th Congressional District. The message described the candidate in highly favorable terms and was clearly "directed toward the success of Mr. Holden's reelection campaign," Giannasi found.

The administrative judge recommended a penalty less than removal -- the presumed penalty for a Hatch Act infraction -- because Morrill's violation was a single action taken at the request of the union. Further, Morrill no longer holds the union office he did at the time of the violation, making it unlikely that he will repeat the violation, the judge said.

An MSPB judge in April resolved two cases in favor of government employees accused of violating the Hatch Act through sending politically charged e-mails to co-workers over work computer systems. Those communications were acceptable because they were akin to "water cooler" discussions, the judge ruled.

But in November, the board found that a Fresno, Calif., lawyer illegally used his government e-mail account to engage in political work by sending more than 100 e-mails related to his position as an elected official in the state's Green Party.

The cases differ in that the lawyer was using his e-mail for direct political activity.

Special Counsel v. Rocky Morrill, Merit Systems Protection Board Administrative Law Judge, CB-1216-05-0027-T-1, Dec. 27, 2005.

Unreasonable Expectations

The Veterans Affairs Department failed to offer a compelling reason for firing five employees for improper processing of rejected claim applications, an arbitrator ruled recently.

Marilyn Levine's decision reinstates the five employees to their previously held positions and grades at the department's Pension Maintenance Center in Philadelphia.

"There is no evidence that the grievants were not working, or that they were wasting time, or engaging in nonwork-related activities," Levine wrote. "Fundamental due process requires that individuals have some knowledge of the fact when they are putting their jobs in jeopardy. I find that the grievants had good reason to believe they were properly performing their job duties."

The American Federation of Government Employees Local 940 labor union filed the grievance on behalf of the employees -- arguing that the firings were unfair and unreasonable -- and hailed the decision as "an impressive victory in its efforts to protect the jobs of employees at the Department of Veterans Affairs."

Martin Cohen, AFGE's assistant general counsel for litigation, said he was pleased with the arbitrator's decision and that the firings were the result of upper management's failure to communicate its expectations to employees.

"We hope this decision makes employers realize that you can't fire people for not doing something if you never told them to do it in the first place," Cohen said.

A VA spokesman declined to comment.