The Office of Special Counsel has stressed the limits of a recent ruling by the MSPB where the OSC entered into a settlement that involved a suspension of an employee on charges of running for a partisan office but that allowed the employee to continue holding that office.
In a statement, the OSC said the impact of the decision — one of the first issued by the MSPB after it regained a quorum after a five – year wait – was that it “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” by law. However, the OSC said it “has received numerous questions about the case and its implications for the Hatch Act,” in light of at least one news story suggesting that the impact was much broader.
The OSC stressed that both it 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” and said the decision “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.”
It said that in the recent case, even though the employee’s continued holding of the office did not itself violate the Hatch Act, the MSPB hearing officer had refused to accept the settlement. “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,” it said.
It said the MSPB’s decision that he didn’t need to give up the office “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 the Hatch Act.
“Thus, contrary to recent reporting, [the decision] 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.”
The OSC added that the case “presented an unusual situation” and that it “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.”