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Federal Employees News Digest : Sept. 24, 2012
September 24, 2012 Vol. 62, No. 11 5 Visit us on the Internet at www.FederalDaily.com With the presidential elections rapidly approaching, just about everything is political. This development is especially troubling for federal employees, because under the Hatch Act, their participation in partisan elections could end up costing them their jobs. The line between partisan and nonpartisan politics is becom- ing ever more blurred, with federal employees dancing along an increasingly fine line in terms of their political activities. As a result, the number of warning letters issued by the Office of Special Counsel, which enforces the Hatch Act, has risen to 163 in 2010 from 21 a decade earlier, according to annual reports to Congress from the OSC. Most federal employees generally are permitted to engage in certain partisan political activities---so long as they are not on the job or on government property. They are prohibited from running in partisan elections and soliciting or receiving partisan campaign contributions from anyone. Nevertheless, a federal employee may be able to run in a nonpartisan election, so long as conflict-of-interest issues will not arise if he or she is elected to the position. Nonpartisan no-no Amid the excitement of the election season, it is crucial that federal employees keep their partisanism in check. If they don't, they could put their jobs at risk by engaging in what seems to be nonpartisan activities. For example, in Mcentee v. Merit Systems Protection Board (Fed. Cir. 2005), a Federal Aviation Administration air traffic control specialist got in trouble when he ran for mayor of Albuquerque, N.M., even though city ordinances said the position was nonpartisan and his agency initially concluded the Hatch Act did not prevent him from being a candidate. However, the U.S. Court of Appeals for the Federal Circuit upheld an MSPB determination that the employee turned the mayoral race into a partisan contest by publicly touting himself as a conservative Republican candidate and aligning his cam- paign with that political party. Affirming the MSPB decision, the court found that "the presumption of nonpartisanship was rebutted by overwhelming evidence showing that [the employ- ee's] campaign had injected partisan politics into the race." Email mistakes Some of the most egregious Hatch Act violations can be committed conveniently from a federal employee's worksta- tion. Many federal careers have been ruined by sending or forwarding politically charged e-mails, including e-mails invit- ing co-workers or colleagues to attend fundraisers or soliciting campaign contributions. The line dividing appropriate and inappropriate political e-mails is very thin, as evidenced by the MSPB's ruling in Special Counsel v. Ware (2010). This case involved the disciplin- ing of a Department of the Treasury program analyst and con- tracting officer technical representative for numerous Hatch Act violations. Violations cited in the case included the use of a government computer to send e-mails to federal employees and government contractors to solicit political contributions, send invitations to attend a political fundraiser and urge the support of a political candidate for the 2008 presidential election. The administrative law judge initially presiding over the case found that six of the e-mails sent by the employee quali- fied as "partisan political activity," but recommended a 60-day suspension in lieu of removal. However, the MSPB determined that removal was the appropriate penalty based on the ALJ's findings of fact. Federal employees charged with violating the Hatch Act should immediately consult with a federal employment law attorney. The perils of politics By Mathew B. Tully, Esq. Mathew B. Tully is the founding partner of Tully Rinckey PLLC. He concentrates his practice on representing military person- nel and federal employees and can be reached at firstname.lastname@example.org. To schedule a meeting with one of the firm's federal employment law attorneys, call 202-787-1900. The information in this column is not intended as legal advice.
Oct. 1, 2012