U.S. Office of Special Counsel
1730 M Street, N.W., Suite 201
Washington, D.C. 20036-4505
U.S. OFFICE OF SPECIAL COUNSEL ANNOUNCES MSPB DECISION ORDERING LONG TERM SUSPENSION OF A FEDERAL EMPLOYEE
FOR A HATCH ACT VIOLATION
FOR IMMEDIATE RELEASE - 9/12/03
CONTACT: TRAVIS Q. ELLIOTT
Today, the U.S. Office of Special Counsel (OSC) announced that the Merit Systems Protection Board (MSPB or Board) upheld a recommended decision by a Board Administrative Law Judge that granted OSC’s petition for disciplinary action and ordered the Federal Aviation Administration (FAA), Albuquerque, New Mexico, to suspend employee Mike McEntee from his Air Traffic Controller position for 120 days for Hatch Act violations. OSC’s petition, filed with the MSPB in November 2001, charged Mr. McEntee with violating two Hatch Act prohibitions: (1) running as a candidate for election to a partisan political office, and (2) knowingly soliciting, accepting or receiving political contributions from any person (MSPB Docket Number CB-1216-02-0007-T-1 (September 8, 2003)).
Mr. McEntee has been employed by the FAA as an Air Traffic Control Specialist since 1982. On or about August 8, 2001, Mr. McEntee filed a declaration of candidacy to run for Mayor of Albuquerque, New Mexico. According to Albuquerque city ordinance and charter, candidates for the mayoral office are listed on the election ballot without party or other designation, creating a presumption that the mayoral race is nonpartisan. Nevertheless, between August 8, 2001 and October 2, 2001, the date of the election, Mr. McEntee received the endorsement of the local Republican Party, and campaign materials were distributed by and on behalf of his campaign, which emphasized his association with the Republican Party and touted his endorsements by former and current Republican leaders and entities. Some of Mr. McEntee’s campaign literature was paid for out of the “Friends of Mike McEntee” campaign account and contained urgent pleas for financial support for the campaign.
OSC advised Mr. McEntee orally and in writing that his candidacy for Mayor violated the Hatch Act and provided him the opportunity to cure his violation by withdrawing from the Mayor’s race or resigning from his federal employment. Mr. McEntee chose not to cure his violation. Instead, he remained in the race until his defeat in the primary election. OSC then filed a complaint for disciplinary action against him with the MSPB.
In his Recommended Decision, the Judge concluded the mayoral election was “overwhelming[ly]” partisan and that Mr. McEntee “contributed significantly to the partisanship.” For example, Mr. McEntee described himself as the only “conservative Republican” in the race; he distributed campaign materials prominently declaring himself as “the only conservative Republican in the race for Mayor” and announcing that prominent Republican office-holders, entities and functionaries supported him; and he did not dispute the press reports that contributed to the public perception that the campaign was partisan. The Judge also found that Mr. McEntee admitted to soliciting and receiving political contributions and thus, violated the Hatch Act’s prohibition against this activity.
After concluding that Mr. McEntee committed two violations of the Hatch Act, the Judge recommended that he be suspended for 120 days. Under the federal Hatch Act statute, a Hatch Act violation requires the removal of the employee unless the Board decides by unanimous vote that the violation does not require removal, in which case it can impose no less than a thirty-day suspension. The Board unanimously agreed with the Judge’s recommended penalty and ordered FAA to suspend Mr. McEntee for 120 days.
The U.S. Office of Special Counsel is an independent investigative and prosecutorial agency. Among other functions, it investigates and prosecutes complaints alleging violations of the Hatch Act and provides advisory opinions regarding the Act’s requirements.