Navy Secretary Del Toro Found in Violation; Other Matters
Closed, Including Involving Secretary Cardona and Former Attorney General Barr
Today, the U.S. Office of Special Counsel (OSC) announces several Hatch Act enforcement decisions. The Hatch Act, a federal law passed in 1939, limits certain political activity of federal employees. As relevant to the decisions announced today, employees may not engage in political activity while they are on duty, in the federal workplace, or acting in their official capacity, nor may employees solicit political contributions at any time. Political activity is activity directed toward the success or failure of a partisan candidate, political party, or partisan political group.
“At OSC, we are committed to Hatch Act education and not just enforcement," said Special Counsel Hampton Dellinger. “The best way for federal employees, including agency leaders, to avoid Hatch Act violations is to check with us before -- not after -- doing something that might run afoul of the law. The enforcement decisions announced today involve officials and employees who acted without seeking advice. Some cases resulted in Hatch Act violations, while others have been closed without a finding of a violation. However, the safest and surest way to avoid a problem is to reach out to OSC on the front end. Regarding specific enforcement decisions, I want to acknowledge that balancing government employee speech rights with robust Hatch Act enforcement can be a challenge. I am grateful for the Hatch Act Unit's careful consideration of these cases."
Report to the President on Hatch Act Violation by Navy Secretary Del Toro:
OSC is transmitting to the President a finding that Secretary of the Navy Carlos Del Toro violated the Hatch Act. Secretary Del Toro made statements in his official capacity advocating for and against the election of presidential candidates. For example, Sec. Del Toro said while speaking abroad on behalf of the Department of Defense, “And so I'm confident that the American people will step up to the plate come November and support President Biden for a second term as our Commander-in-Chief, so that we can continue to work together as free democratic countries respect each other around the globe." The Hatch Act prohibits federal employees from using their official authority or influence to interfere with or affect the result of an election. The full report to the President can be found here.
Special Counsel Dellinger: “When speaking in his official capacity on a taxpayer-funded trip, Secretary Del Toro encouraged electoral support for one candidate over another in the upcoming presidential election. By doing so, he crossed a legal line and violated the Hatch Act. This is especially troubling because Secretary Del Toro has himself acknowledged that military work and partisan politics should not be mixed. As he stated just this past July: 'It is more important than ever for us to remember that the [Department of the Navy]is an apolitical body… Public trust and confidence depend on this.'"
Education Secretary Cardona & Former Attorney General Barr Matters Closed Without Hatch Act Violation Findings:
OSC received complaints alleging Hatch Act violations by Department of Education (ED) Secretary Miguel Cardona for sending a letter to student loan borrowers, responding to recent holdings by federal judges that temporarily blocked the Biden Administration's student debt plan and outlining steps that ED planned to take in response. In the letter, Sec. Cardona does not refer to candidates, elections, or voting but remarks that “Republican elected officials" are “siding with special interests" and are trying to stop efforts by President Biden and ED “to make repaying student debt affordable and realistic." As detailed in this advisory opinion, OSC concluded that Secretary Cardona did not violate the Hatch Act.
On July 25, 2024, the U.S. Department of Justice, Office of Inspector General referred to OSC A Report of Investigation Into the Department's Release of Public Statements Concerning a Luzerne County, Pennsylvania, Election Fraud Investigation in September 2020 to consider whether the conduct described, including by former Attorney General William Barr, violated the Hatch Act. After considering all facts and findings OSC is closing this matter without further action.
Special Counsel Dellinger: “Both Secretary Cardona and former Attorney General Barr face allegations that they impermissibly injected partisan politics into communications about legal matters. OSC is closing these matters without finding Hatch Act violations in either case. But our closures should not be viewed as encouraging unnecessary partisan references, particularly in the context of legal discussions."
Project 2025 & Infrastructure Signage Complaints:
OSC has received complaints and questions about federal employee involvement with or workplace discussion of the Heritage Foundation's Project 2025. OSC has concluded that Project 2025-related activity associated with the Heritage Foundation, which is not “a partisan political group" as defined by federal regulations, does not constitute political activity for purposes of the Hatch Act, i.e., activity directed at the success or failure of a political party, partisan political group, or candidate for partisan political office.
OSC has also received Hatch Act complaints involving signage placed at federally funded project sites that describes the funding source as, for example, “President Joe Biden's Bipartisan Infrastructure Law." OSC has concluded that associating legislation with a particular president is not, by itself, political activity prohibited by the Hatch Act. Accordingly, OSC has closed these cases without finding violations.
Disciplinary Action for Soliciting Political Contributions on Social Media:
During this election season, OSC continues to identify Hatch Act violations by federal employees using social media to solicit political contributions. In one case, a U.S. Department of Commerce employee violated the Hatch Act by posting two Facebook messages while on duty supporting a local candidate in a partisan political election, one of which solicited monetary contributions to the candidate's campaign. The employee admitted he engaged in prohibited political activity, and in a settlement agreement, agreed to an unpaid 10-day suspension for violating the Hatch Act.
In another case, an employee with a U.S. Attorneys' Office shared on Facebook at least two messages that solicited financial contributions for a partisan political campaign. The messages solicited donations for the campaign of the employee's father, a candidate in a partisan primary election. In a settlement agreement, the employee admitted to violating the Hatch Act and agreed to a seven-day unpaid suspension as a penalty for their political activity.
Special Counsel Hampton Dellinger: “While OSC deals with some close calls in its Hatch Act enforcement, federal employees soliciting donations for a political campaign is express advocacy and a clear-cut violation. We urge federal employees not to cross these brightest of lines. When it happens, OSC will take action."
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