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On March 29, 2022, the Merit Systems Protection Board (MSPB) issued a decision in OSC's favor in Special Counsel v. Cowan, which involved an employee who ran for a partisan political office in violation of the Hatch Act. OSC welcomes the reconstituted MSPB's quick action to address this long-pending Hatch Act case, which OSC filed in 2016 but that the MSPB was unable to decide until recently due to lack of a quorum. Shortly after filing the complaint, OSC reached a settlement agreement with the employee under which the employee agreed to a significant disciplinary action—a 180-day unpaid suspension. The MSPB decision affirmed that OSC may resolve Hatch Act cases by settlement agreement provided the settlement is freely entered into, lawful on its face, and the associated penalty is one authorized under 5 U.S.C. § 7326. In OSC's view, the precedential effect of the ruling is limited to those cases that resolve by settlement agreement.
Since the decision was issued, OSC has received numerous questions about the case and its implications for the Hatch Act. OSC is therefore issuing this statement to clarify its view of the parameters of the decision.
As a threshold matter, both OSC and the MSPB consider active candidacy for a partisan political office to be a serious violation of the Hatch Act that warrants removal from federal service. See Special Counsel v. Lewis, 121 M.S.P.R. 109, 121 (2014). The holding in Cowan does not change that longstanding principle. At the same time, while the Hatch Act prohibits employees from running for partisan political office, it does not prohibit them from serving in an elected office—for example, the Hatch Act does not prohibit an employee from being appointed to fill a vacancy in an office that is ordinarily filled by a partisan election. In Cowan, even though the employee's continued holding of the office did not itself violate the Hatch Act, the Administrative Law Judge presiding over the case refused to accept a settlement agreement that included a substantial unpaid suspension but allowed the employee to retain his elected office. Thus, the question before the MSPB was whether the employee should have been required to forfeit his elected office as a condition of the settlement agreement. The MSPB's Cowan decision simply affirmed that OSC is not required to impose such a condition but does not preclude OSC from seeking removal from federal employment, either as part of a settlement agreement or during a disciplinary action hearing, where an employee runs for office in violation of 5 U.S.C. § 7323(a)(3).
Thus, contrary to recent reporting, Cowan does not hold that an employee who runs for partisan political office in violation of the Hatch Act, and is subsequently elected, is entitled to both retain that office and remain a federal employee. Rather, the decision upheld OSC's authority to settle Hatch Act cases for a penalty less than removal if the Special Counsel determines that the facts and circumstances warrant such a penalty. Ethics officials and federal employees should be aware that Cowan presented an unusual situation; OSC does not intend to enter into any settlement agreements that would allow an employee who violates the Hatch Act by running for a partisan political office to keep both their elected position and their federal employment.
OSC therefore recommends that agencies remind employees that they are prohibited by the Hatch Act from running for election to a partisan political office. Penalties for violating the Hatch Act include any combination of removal, reduction in grade, debarment from federal employment for a period not to exceed five years, suspension, reprimand, and assessment of a civil penalty not to exceed $1,195.
Ethics officials and employees who have further questions about OSC's application of Cowan may contact the Hatch Act Unit at firstname.lastname@example.org or (202) 804-7002.