In the recent decision, Special Counsel, Petitioner, v. Pattie Ware, Respondent, Docket No. CB-1216-09-0025-T-1 (June 9, 2010), the MSPB overruled an administrative judge’s (AJ’s) proposed penalty of a 60-day suspension for several Hatch Act violations and instead ordered the respondent’s removal from her position.

 

Ware, a program analyst and contracting officer technical representative with the Department of the Treasury’s Bureau of Engraving and Printing, admitted that she had invited 16 people to a fundraiser for then-candidate Barak Obama; forwarded a campaign email to 14 people, including federal contract employees; sent another email to 15 people urging them to vote for the Obama-Biden ticket; sent both emails from her government-issued computer while located in her government office using her government email account; and that she sent an email containing a solicitation for campaign donations.

Each of these undisputed actions was found to violate the Hatch Act, and so the only issue left to resolve was the appropriateness of the penalty. In reaching his recommendation of a 60-day suspension for Ware, the AJ had engaged in an analysis of “aggravating factors" and “mitigating factors." The Board agreed with the AJ’s finding that the violations were “serious," but disagreed with the AJ’s inconsistent findings concerning Ware’s control over the contract employees.

The Board also refused to mitigate on the basis that the email reached “only a small number of contract employees," citing a case upholding removal where an employee had solicited contributions from just one subordinate employee. The Board furthermore found that soliciting contributions from persons “doing business with an agency is a serious violation of the Hatch Act because of the threat of coercion and the appearance that government contracts are awarded based on political patronage rather than competitive bidding." The Board also disagreed with the AJ’s finding that merely forwarding, rather than composing, an email solicitation was a mitigating factor.

The Board also seemingly imposed the equivalent of strict liability on Ware for her actions, refusing to examine the employee’s “motive and intent" in sending the campaign materials and also refusing to revisit the issue of whether Ware had “actual knowledge" of Hatch Act restrictions when she engaged in the actions. Because Ware had recently undergone ethics training, and because training materials summarizing Hatch Act provisions had been distributed to her, the Board ruled that it did not need to examine whether Ware had “actual" knowledge—the knowledge was imputed to her. The Board also disagreed with the AJ’s findings that lack of advice of counsel was a mitigating factor, and found that the AJ erred in determining that Ware’s employment status was a mitigating factor. The Board did agree that Ware’s cessation of activities, past employment record, and expression of remorse were mitigating factors, but concluded that they did not outweigh the seriousness of her repeated Hatch Act violations. Furthermore, the political coloring of the emails was a factor that weighed against mitigation.

As we continue the primary contests in an election year, this decision is a timely reminder of the seriousness with which the Special Counsel treats Hatch Act violations.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

 

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.passmanandkaplan.com/CM/Custom/Federal-Employees-Survival-Guide.asp. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.