Governmentwide Hatch Act probe remains in early stages

By Daniel Pulliam

May 29, 2007

More than a month after the Office of Special Counsel announced it will establish a task force to conduct a governmentwide investigation of alleged violations of the law that limits political activity in federal agencies, the effort remains in the preliminary stages.

Loren Smith, a spokesman for OSC, an independent agency with the authority to investigate suspected Hatch Act violations, said agency officials are still trying to figure out who is going to be on the task force. The investigation could last anywhere from a few months to "well into 2008," he said.

The task force will be headed by James Byrne, deputy special counsel at OSC. Ana Galindo-Marrone, OSC's Hatch Act division chief, will be heavily involved in the group's day-to-day activities, Smith said.

"We're taking the steps that we need to get the task force up and running. We're recruiting members," Smith said. "There may be outside hires."

OSC recently concluded that General Services Administration chief Lurita Doan violated the Hatch Act through her role in a Jan. 26 meeting at the agency's headquarters. That meeting, attended by Doan and more than 30 other political appointees, included a PowerPoint presentation by Scott Jennings, a deputy to Karl Rove, the leading political strategist at the White House. The slides listed Republican and Democratic political races viewed by the White House as most vulnerable in 2008.

The White House revealed a month ago that about 20 other similar briefings were held in federal agencies in 2006 and 2007. Officials at OSC decided last month to create the task force to look into these presentations. Special Counsel Scott Bloch's tenure at OSC expires in December 2008, but previous OSC chiefs have extended their time heading the agency due to ongoing investigations.

The task force also will investigate allegations that former U.S. Attorney David Iglesias was dismissed by Attorney General Alberto Gonzales for serving as a Navy Reserve captain, which kept him from his job from time to time. Using Iglesias' status as a service member as a reason for dismissal from a job would be a potential violation of the Uniformed Services Employment and Reemployment Rights Act, which prohibits discrimination against members of the armed forces.

Elaine Kaplan, Bloch's predecessor as special counsel, said the key factor that led OSC to find a Hatch Act violation on the part of Doan was the determination that the PowerPoint presentation turned into a political brainstorming session under her initiative.

But nothing in OSC's investigative report suggests that anything improper had occurred before Doan initiated the discussion, Kaplan said.

"As OSC investigates the presentations given at other agencies, it will be looking closely at the remarks that were made by the officials who hosted or gave the presentation and the employees who participated in it," Kaplan said. "One can easily imagine that following such a presentation, in a room filled with political appointees, discussions would ensue about how to take action to help the Republican Party."

In that circumstance, it would be the responsibility of those leading the meeting and the head of the agency, if present, to end the discussions and make it clear to the participants that government offices are not the appropriate place for political brainstorming. Since most of the meetings were held months ago, it may be hard for the attendants to remember what was said, Kaplan noted.

Rep. Bruce Braley, D-Iowa, who led the questioning of Doan during a March 28 House Oversight and Government Reform Committee hearing, said he believes that if presentations are given on government property, they violate the Hatch Act.

"When you talk about 2008 targeted races, and the only targets on that page are Democrats and the presentation is from the White House political office, that's clearly a violation," Braley said.

William Wiley, former counsel to a head of the Merit Systems Protection Board appointed by President Clinton, said OSC does not have to prove beyond a reasonable doubt that the presentations are violations. Rather, the agency could find a violation using the lower "preponderance of evidence" legal standard, he said.

"If the meeting is directed toward the success of a particular party, then it's a Hatch Act violation," Wiley said. "It's a slam dunk if I were the judge. It doesn't have to be as raw as 'What can we do to support our people?' for OSC to find violations."

Wiley said the person found culpable would likely be the one who directed the federal employees to participate in the meeting.

Kathleen Koch, a former OSC head appointed by the first President Bush, did not want to comment on whether the presentations themselves could constitute violations of the Hatch Act, but said federal employees who are interviewed by OSC regarding the meetings should just tell the truth.

"Everything I ever told anybody when they come knocking on the door is tell the investigator what they know," Koch said.


By Daniel Pulliam

May 29, 2007

http://www.govexec.com/oversight/2007/05/governmentwide-hatch-act-probe-remains-in-early-stages/24521/