"The four MSPB decisions send a clear message to the federal community," said Scott Bloch, head of the Office of Special Counsel, on Wednesday. "No political activity means no political activity, regardless of the specific technology used."
While the Hatch Act generally permits most federal employees to participate in political campaigns, it bars them from engaging in any political activity while in uniform, on duty or in a government building or vehicle.
Hatch Act violations are typically resolved with a warning letter from the OSC. If the case is egregious, however, OSC brings the case before MSPB, where the presumed punishment is dismissal.
Still, in the four recent cases before the board, the respondents all raised the defense that their conduct was a mere expression of opinion, arguing that it was no different from an informal conversation at the office water cooler. An OSC advisory to federal employees in 2002 said water cooler-type conversations about political opinions are permissible.
In the first case, Special Counsel v. Morrill, the MSPB last summer upheld a 60-day suspension imposed on a federal employee who had sent a political e-mail while on duty at a federal building.
That employee circulated the e-mail, which announced a party for Tim Holden, a Democratic candidate for a Pennsylvania seat in the House, to more than 300 individuals. The judge found that the e-mail was obviously "directed toward the success of Mr. Holden's re-election campaign," warranting the worker's suspension in violation of the Hatch Act.
In the second case, Special Counsel v. Davis and Sims, the MSPB last summer reversed an administrative law judge's ruling that sending political messages to a handful of co-workers using a government e-mail account is legal.
The first e-mail the two sent featured a photo of President Bush in front of an American flag with the statement, "I vote the Bible." A second e-mail stated, "Why I am supporting John Kerry for president?" and presented several reasons why the reader should vote for Kerry and should not support the Republican Party.
In the third case, the MSPB last summer upheld an earlier decision by an administrative law judge ordering the removal of a Small Business Administration employee from federal service. The employee, Jeffrey Eisinger, was an elected official of the California Green Party, and had received, read, drafted and sent more than 100 e-mails through his government computer that were directed toward the success of the Green Party.
Finally, in December, the MSPB found an Environmental Protection Agency employee guilty of Hatch Act violations after e-mailing a letter from the Democratic National Committee urging recipients to take immediate action after the presidential debate in support of former presidential candidate John Kerry.
Eisinger, who was removed from his federal job, argued Friday that though he received Hatch Act advisories from OSC, he never felt well-versed in the law. "I think that if someone else had asked me for advice on the Hatch Act, I probably would have had to do additional research or ask an expert in Washington," he said.
OSC spokesman Loren Smith said the agency is constantly seeking new ways to better educate employees, often through the use of advisories and outreach events. He said that if a Hatch Act violation complaint is related to a certain agency, OSC will often go to that agency as part of the settlement to educate employees on the law.
"Outreach is very important," Smith said. "It's very much half the battle in terms of preventing these violations."
But National Treasury Employees Union President Colleen Kelley criticized the recent decisions, arguing that the current OSC has an "obsessive focus" on regulating the use of e-mail by federal employees. "NTEU believes that OSC resources could be better spent on investigating serious Hatch Act violations," she said, "and protecting whistleblowers against retaliation, a central part of its mission that it has seemingly forgotten."
Still, OSC holds that it will not hesitate in pursuing potential transgressions. "We will continue to vigorously prosecute anyone who engages in political activity in the workplace or on duty," Bloch said, "and those using e-mail for this purpose should be especially aware that this decision subjects them to penalties, including removal from federal service."