Political e-mails trigger surge in Hatch Act complaints

A U.S. enforcement agency has seen a surge in the number of complaints about federal employees sending politically oriented e-mails, a trend officials say could lead to a record number of Hatch Act violations this year.

"As people become more comfortable with e-mail use, we see a spike in Hatch Act complaints," an attorney in the Hatch Act unit of the Office of Special Counsel told CongressDaily this week. "I expect to see a continued intersect between federal employees, the Internet and the Hatch Act."

OSC recorded 299 complaints last year -- an all-time high for the independent investigative agency charged with enforcing the Hatch Act. The law bars federal employees from engaging in any political activity during work hours, which includes circulating petitions and campaigning.

Sending a political e-mail, either on a personal or work account, is barred under the law.

Among the variety of recent e-mail cases brought to the agency's attention was one involving a federal worker who e-mailed an invitation to a party supporting the re-election campaign of Rep. Tim Holden, D-Pa.

The invitation, which was "obviously ... directed toward the success of Mr. Holden's re-election campaign," was e-mailed to more than 300 individuals, according to the OSC. The worker received a 60-day suspension.

In a case involving action against a supporter of President Bush's re-election, a federal employee had e-mailed a photo of the president in front of an American flag with the statement, "I Vote the Bible."

While the agency said it does not have an official count on how many e-mail violations occurred last year, the OSC attorney said the Internet is a rising problem area for enforcement. The attorney was allowed to be interviewed on the condition of anonymity.

The agency reported receiving 248 Hatch Act-related complaints in 2004, a general election year. That number was nearly matched with 245 complaints in 2005, despite it being a non-election year, which presumably would mean a dip in the volume of political e-mail.

The rise of popular Web sites like YouTube, which features politically charged video clips, has added to the challenge of keeping partisan politics out of the workplace, the OSC attorney said. Employees often pass along website links without knowing it violates the Hatch Act.

To educate workers and reiterate the law's extensive reach into prohibited political activities, the office issued an advisory last month highlighting decisions made by the Merit Systems Protection Board on cases of federal employees using their government e-mail address to circulate political messages.

The Hatch Act decisions "send a clear message to the federal community [that] no political activity means no political activity, regardless of the specific technology used," OSC Special Counsel Scott Bloch said in the advisory.

In one of the highlighted cases, an EPA employee was found in violation of the law for forwarding a letter from the Democratic National Committee to 31 agency co-workers that urged support for then-presidential candidate Sen. John Kerry, D-Mass.

The punishment decision for the employee is still pending, although the lightest sentence under the law is a 30-day suspension without pay.

Ward Morrow, assistant general counsel of the American Federation of Government Employees, the largest federal employee union, said such cases, where employees may not even be aware they are violating the law, "just aren't warranted."

Morrow said the Hatch Act "was designed for serious violations of bringing partisanship into the workplace." He said the law was never intended to punish a more minor offense like forwarding a video clip or campaign Web site.

The minimum penalty of a 30-day suspension is also too harsh, Morrow said, adding that the law should be revised to include less stringent punishments.

"The law seems to be a very heavy-handed way of dealing with e-mail," he said. "Congress needs to take up Hatch Act reform."

House Oversight and Government Reform Federal Workforce Subcommittee Chairman Danny Davis, D-Ill., said his panel will hold a hearing later this year on the Hatch Act generally -- and the use of e-mails, in particular -- but that overhauling the law was unlikely.

"There is a lack of knowledge, of federal workers just not knowing the rules," Davis said, acknowledging the upswing in Hatch Act complaints.

Davis said rather than change components of the law, more needs to be done to educate workers on the rules.

"The average employee does not set out to violate the law," he said, reiterating OSC's view. "Awareness is all they need to keep them from being in violation."