Determination could hinge on details of what was said at a Jan. 26 meeting and the intent of the meeting.
Legal experts are divided on whether the head of the General Services Administration has violated a law limiting on-the-job political activity in government offices, as Democrats on a key congressional oversight committee claim.
A Jan. 26 meeting at GSA's headquarters is at the center of the allegations that Lurita Doan, the agency's chief, violated the Hatch Act. The meeting, attended by Doan and about 40 other political appointees, included a PowerPoint presentation by Scott Jennings, a deputy to Karl Rove, the leading political strategist at the White House.
Democrats on the House Oversight and Government Reform Committee say the presentation was clearly political. The slides listed Republican and Democratic House districts viewed by the White House as most vulnerable in 2008 and included a map showing the Senate seats up for grabs in the 2008 election and whether the White House believes Republicans will have to play "defense" or "offense."
Doan earlier this week told the panel that she thought the meeting was appropriate. But she repeatedly said she could not remember the details of the meeting, other than that people arrived late, quite a few were absent and there were "cookies on the table."
As a presidentially appointed, Senate-confirmed official -- known as a "PAS" in Washington parlance -- Doan is exempt from the Hatch Act's specific ban on "political activities" while on the job or in a federal office, legal experts said. But they also noted that as the head of a federal agency, Doan is barred from using her position to affect an election and from asking non-PAS political employees to participate in partisan activities.
William Wiley, former counsel to a President Clinton-appointed head of the Merit Systems Protection Board, said that when he worked for the government, he was very sensitive to how easy it was for an official nonpolitical government phone call, meeting or e-mail to drift toward a discussion on a prohibited political matter.
"Whenever that would happen, we always immediately stopped the communication, even if it was an awkward thing to do, and made certain that we did not use government equipment or time for political purposes in even a relatively trivial manner," Wiley said.
A planned political presentation using significant government equipment and time is way over the line, Wiley said.
"Simply forwarding a political e-mail from a government e-mail account constitutes a [Hatch Act] violation," said Wiley, who is now an attorney in private practice focusing on federal employment law. "So unless [Doan] is successful in getting the current legal interpretations changed by a frontal constitutional freedom-of-speech attack in court, she has committed a violation."
But an Office of Special Counsel career attorney familiar with the Hatch Act said Senate-confirmed political appointees are allowed to hold meetings involving politics while on duty or in a federal building, so long as they do not intentionally or unintentionally "coerce" other non-PAS employees into the activity, such as a meeting. In addition, all refreshments and other costs that the agency would not have otherwise incurred must be covered by a nongovernment funding source, the attorney said, adding that expenses for the official's salary and the building are considered incidental.
Kathleen Koch, a former OSC head appointed by the first President Bush, said such meetings are not unusual and do not necessarily amount to Hatch Act violations.
"The White House political office does a lot of those things with political appointees for informational purposes, for the most part because political appointees are really interested in that stuff," Koch said. "So they provide information. Now whether it went beyond that, I don't know."
Koch said it would be difficult to prove that a violation took place. She said the key issue will be the words spoken and the purpose of the meeting. White House officials should know the rules regarding the Hatch Act, she said. The meeting likely was intended to build solidarity among political appointees, she added.
A report from the Republican staff of Tom Davis, R-Va., ranking member of the House Oversight and Government Reform Committee, said witnesses have told the panel in sworn testimony that Jennings called the meeting to a close once participants started to name public officials, such as House Speaker Nancy Pelosi, D-Calif., and Sen. Mel Martinez, R-Fla.
According to the report, the prompt end to the discussion should mitigate the perception of a Hatch Act violation. Democrats have countered, however, with examples of names of political figures used during the meeting and have cited reports that Doan asked at the conclusion how GSA could help "our candidates in the next election."
In an 11-page memorandum, the nonpartisan Congressional Research Service said the presentation itself may cross the line if "the sponsor or presenter is closely affiliated/identified with a partisan political campaign." The March 26 report stated that the intent of the meeting is central to determining whether the Hatch Act was violated.
The report stated that while it is possible that the meeting was "purely an 'information' or 'educational' activity" and that discussion of elections, results and trends might not necessarily be considered "political activity," if the meeting was conducted with the purpose of promoting the Republican Party or its candidates, then it would be considered "political activity" in a federal building.
The report noted that Jennings' use of an e-mail account owned by the Republican National Committee, and not his White House e-mail account, for communicating with GSA personnel before the meeting, may indicate that the nature and intent of the presentation was political.
OSC confirmed Friday that it has been investigating the Jan. 26 meeting for some time. Once the review is complete, the findings will be referred to the president, who could then take action if he wanted.
In response to a request for comment for this article, a GSA spokeswoman said the agency does not comment on open investigations.