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 U.S. Office of Special Counsel
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OSC Removes Hatch Act Advisory For ‘Water Cooler’ Political Email
Four Board Decisions Clarify Illegality Of Such Email
 


FOR IMMEDIATE RELEASE - March 14, 2007
CONTACT: LOREN SMITH, 202-254-3714, lsmith@osc.gov
    
WASHINGTON– Today the U.S. Office of Special Counsel, the agency responsible for enforcing the Hatch Act, highlights four recent unanimous decisions by the Merit Systems Protection Board concerning federal employees using government email to engage in prohibited political activity.

       The decisions by the MSPB have brought clarity to the email issue and dispel any misconceptions in the federal community that using government email to circulate partisan political messages was an exception to the Hatch Act’s prohibition against engaging in political activity while on duty or in a federal building.

       In each of these cases, the respondent raised the defense that their conduct was mere expression of opinion and no different form the water cooler conversation described in OSC’s advisory opinion dated May 30, 2002, entitled “Use of Electronic Messaging Devices to Engage in Political Activity.” In light of the clear guidance offered by the MSPB decisions, OSC has rescinded this advisory opinion.

       The four MSPB decisions are highlighted below.       
  • On June 9, 2006, the MSPB in Special Counsel v. Morrill upheld a sixty-day suspension imposed against a federal employee who was found to have violated the Hatch Act by sending an email while on duty and in a federal building that was directed toward the success of a candidate for U.S. Representative. Specifically, the federal employee sent an email to over 300 individuals with an attached announcement for a “Halloween party for Tim Holden,” a U.S. Representative seeking re-election. It was found that the message described the candidate in highly favorable terms and strongly encouraged attendance at the event, and that the email was “obviously ... directed toward the success of Mr. Holden’s re-election campaign.”

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  • On June 12, 2006, the MSPB granted OSC’s petition for review of an Administrative Law Judge’s (ALJ) decision in Special Counsel v. Davis and Sims. The MSPB reversed the ALJ’s dismissal of two OSC complaints for disciplinary action against two federal employees who sent partisan political emails while they were on duty and/or in a federal building. The first email in question contained a widely-circulated picture of President George W. Bush in front of an American flag with the statement, “I Vote the Bible.” The text of the email contained several statements in support of President Bush, a negative statement about Democratic Presidential candidate John Kerry, and a statement urging recipients to “Pass along the ‘I Vote the Bible’ button.” The second email contained the subject line, “Why I am supporting John Kerry for President” and it presented a letter that purported to be written by John Eisenhower, son of former President Eisenhower. The email contained several reasons why the reader should vote for Presidential candidate John Kerry and why the reader should not support the Republican Party.
       The MSPB unanimously overturned the ALJ’s decision, found in OSC’s favor and held that the facts OSC alleged, if proven, could constitute a violation of the Hatch ActíŽs prohibition against political activity on duty or in a federal building. The cases were remanded to the ALJ for further adjudication.       
  • On August 9, 2006, the MSPB unanimously upheld an earlier decision by an ALJ and ordered the removal from federal service of a Small Business Administration employee for having engaged in partisan political activity while on duty. Specifically, it was found that over a three-year period the federal employee, an elected official of the California Green Party, received, read, drafted or sent more than 100 emails through his government computer that were directed toward the success of the Green Party. The extensive emails concerned such politically charged issues as party fundraising opportunities, outreach and recruitment plans, internal drafts of various party platforms, and the planning of a state-wide Green Party political convention. The MSPB unanimously found that the penalty of removal was warranted in this case.

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  • On December 14, 2006, the MSPB unanimously ruled in OSC’s favor by holding that an employee of the Environmental Protection Agency violated the Hatch Act when he sent a partisan political email message while on duty and in the federal workplace. The MSPB found that the employee, while on duty and in a federal building, engaged in prohibited political activity by forwarding, via his government e-mail system, a letter from the Democratic National Committee (DNC) that urged its recipients to take immediate action after the Presidential debate in supportive of then-Presidential candidate John Kerry.
       Special Counsel Scott Bloch said, “The four MSPB decisions send a clear message to the federal community. The Hatch Act prohibits federal employees from sending e-mails that advocate for a political party or candidate for partisan public office while on duty or in a federal building, and engaging in such activity may subject them to disciplinary action, including the loss of their job. No political activity means no political activity, regardless of the specific technology used.”

 
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The U.S. Office of Special Counsel is an independent investigative and prosecutorial agency. Among other functions, OSC investigates and prosecutes complaints alleging violations of the Hatch Act, and provides advisory opinions on the Act.