Government Executive Magazine - 9/1/00 Legal Briefs: No soliciting

klunney@govexec.com

Every Friday on GovExec.com, Legal Briefs reviews cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.

William Yellowtail became the regional administrator in the Environmental Protection Agency's Denver, Colo. office in 1994. He resigned from the position in 1996 when he decided to run for Congress. After losing his election bid, he resumed his former position with the EPA in September 1997.

In February 1998, Yellowtail met with Robert Deschamps, a candidate for the Montana seat in the House of Representatives, and several of his campaign officials. During the meeting, they discussed Yellowtail's endorsement of Mr. Deschamps and the solicitation of campaign contributions.

Following the meeting, a fundraising letter for Deschamps' campaign was drafted for Yellowtail's review and signature. The letter urged recipients to contribute to Deschamps' political campaign.

The Office of Special Counsel ruled that Yellowtail violated the Hatch Act, which prohibits federal employees from soliciting political contributions and engaging in certain political activities.

In a voluntary agreement with Yellowtail, OSC suspended him from his position with the EPA for 100 days without pay.

"When in doubt about what is permissible or impermissible under the Hatch Act, I would encourage employees to consult our office. There's a wealth of information at our Web site, www.osc.gov, and employees can actually e-mail questions to us," said Special Counsel Elaine Kaplan.

Office of Special Counsel case, Aug. 22, 2000.

Zero Tolerance

In June 1996, April Clark, a black mail clerk for the U.S. Postal Service, was fired for threatening to beat her white co-workers if they continued to play music she did not like.

According to her supervisors, Clark had violated the agency's anti-violence policy, known as the "zero-tolerance" policy. Clark filed a complaint against USPS, alleging racial discrimination.

Clark had a history of bad behavior on the job. In 1994, she was disciplined by the agency for throwing a package at a fellow employee, and in a separate incident that same year, she was punished for punching a colleague.

The court found in favor of the Postal Service, and Clark subsequently appealed that decision. The U.S. Court of Appeal affirmed the lower court's decision, ruling that her claims of discrimination were unfounded.

"Clark presents no evidence, much less a preponderance of the evidence, that being fired for her lengthy record of violence and threats was a pretext for firing her for a prohibited reason," said the decision.

April M. Clark v. Marvin T. Runyon, Jr. (USPS), U.S. Court of Appeals for the Eighth Circuit (99-2956), July 27, 2000.

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