Merit Systems Protection Board Reverses Removal of Employee for Hatch Act E-mail

In Special Counsel v Mark, the Merit Systems Protection Board reversed a Hearing Officer’s decision ordering the removal (termination) of an IRS agent who sent an e-mail to multiple people, including co-workers, forwarding a message from then-presidential candidate Barack Obama, soliciting campaign contributions.  The e-mail added the following message to recipients: “FYI … if you want to help out the campaign.”  The employee was charged with a violation of the Hatch Act, a federal law which, among other things, prohibits federal employees from engaging in political conduct while on duty and using one’s official authority or influence for the purpose of interfering with or affecting the result of an election.  Violations of the Hatch Act carry the penalty of termination of federal employment unless the Board unanimously determines that a lesser penalty of not less than a 30 day suspension is warranted.

In Mark, the employee admitted to sending the e-mail and to violating the Hatch Act.  However, he argued that removal was not an appropriate penalty because only one e-mail was involved and the e-mail was not sent to subordinates over whom he had control or supervisory authority.  Further, there was no evidence that Mark was actively engaged in political fund-raising or other campaign activity apart from the one e-mail at issue.  The Board agreed that removal was inappropriate, but found:  “We consider any Htach Act violation by a federal employee, on duty and in government offices, to be a serious matter.”  The Board reversed the removal Order of the Hearing Officer, and instead ordered a 120 day suspension for the violation.

Marks demonstrates that Hatch Act violations by federal employees carry severe penalties, even for engaging in a single act of political activity on the job.  However, it is possible to successfully argue against the Act’s presumed penalty of removal.  In many Hatch Act cases, removal is found to be warranted because campaign contributions are requested from employees over whom the offender has supervisory control or authority over.  Because that factor was not present inMarks, the employee had a stronger argument for the imposition of a lesser penalty.  DLE attorney and Speech Law Blog contributor Phillip J. Zisook has also successfully argued against the Act’s presumed penalty of termination and recently negotiated a lesser penalty on behalf of a client charged with violating the Act.

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