MSPB recently upheld the 30-day suspension on Hatch Act charges of an employee found to have sent an email while on duty to about 30 co-workers endorsing a candidate in last year’s presidential election.
The employee, of EPA, was charged with engaging in political activity while on duty in a government building and occupied in the discharge of his official duties. The employee and the Office of Special Counsel, which brought the charges, entered into a settlement agreement and an MSPB law judge and now the full board has accepted the settlement.
The case (2009 MSPB 63) underscores the change in policy that occurred several years ago after several MSPB decisions rejected what had been known as the "water cooler defense." Under that approach, OSC had not pursued Hatch Act charges against employees sending out limited emails with political content on the theory that such messages were akin to casual conversation about political topics, which is allowed under the law. However, that approach was dropped in light of MSPB decisions finding violations of the Hatch Act in those circumstances.