Judge Orders Removal of NOAA Employee for Hatch Act Violations

December 31, 2017

OSC prevailed in a disciplinary action against a NOAA employee who repeatedly ran as a candidate in primary elections for the state of Washington.

Earlier this month, the U.S. Office of Special Counsel (OSC) prevailed in a disciplinary action against a National

Oceanic and Atmospheric Administration (NOAA) employee who repeatedly ran as a candidate in primary elections for the state of Washington’s Eighth Congressional District in the U.S. House of Representatives. An administrative law judge with the Merit Systems Protection Board (MSPB) issued an order removing the employee, Keith L. Arnold, from federal service for Hatch Act violations. Both NOAA and OSC warned Mr. Arnold several times that he was in violation of the Hatch Act and gave him opportunities to come into compliance, either by resigning from federal service or by withdrawing from partisan elections.

The Hatch Act prohibits federal employees from running as candidates in partisan elections, even if they run as

independents, except in very limited circumstances not applicable in this case. Mr. Arnold argued that congressional elections in Washington are nonpartisan because of the state’s unique “top two” primary system. In Washington’s “top two” system, the primary election is not how political parties choose their nominees, and the top two vote getters progress to the general election irrespective of party affiliation. OSC disagreed and argued that the position for which Mr. Arnold ran is a “partisan political office” under the Hatch Act because candidates’ party preferences can appear on the ballot, and political parties remain active in the process by endorsing candidates and choosing nominees after the primary election. Under the Hatch Act, if any other candidate running for or holding that office is affiliated with a political party, then the office and the election for it is considered partisan even if the individual in question is running as an independent. Furthermore, Washington state election law designates the position of U.S. Representative as a partisan office.

The administrative law judge ruled that “Clearly, the office of Representative to the United States Congress is a

partisan political office per the provisions of 5 U.S.C. §7322 and controlling appellate case law.” The Judge further

ordered Mr. Arnold’s removal from his federal job because of the “conspicuous and substantial nature” of his Hatch Act violations “even after repeated and specific advice regarding his violations of the Hatch Act.”

Most federal employees can engage in a wide variety of political activities while off duty and out of the federal

workplace. This one‐page factsheet details the permitted and prohibited activities for most federal employees. A small subset of federal employees—mostly in law enforcement and the intelligence community—are subject to additional restrictions. This factsheet lists those additional limitations and to which employees they apply. Agencies may have additional rules that restrict their employees apart from the Hatch Act.