Warning: Feds beware of political activity

Days before the midterm elections, the Office of Special Council is highlighting two recent rulings by the Merit Systems Protection Board to remind federal employees they are prohibited from engaging in certain political activities in the course of their official duties.

The Office of Special Counsel, an independent agency charged with enforcing personnel laws, took action against two federal employees for violating the Hatch Act, which prohibits personnel from actions that might influence elections. In both cases, employees forwarded political e-mails while on duty in the federal workplace.

OSC fired one and suspended the other without pay for 120 days after determining they had violated the law. The MSPB upheld both decisions.

The case of the first employee involved a program analyst and contracting officer technical representative with the Bureau of Engraving and Printing who forwarded partisan e-mails -- including two that solicited donations -- to bureau and contractor employees she oversaw. She was fired.

The other case involved an employee of the Internal Revenue Service, who was suspended after disseminating fundraising e-mails requesting contributions for then-presidential candidate Barack Obama.

Both the bureau and the IRS declined to comment on the matter.

The 1939 Hatch Act regulates the political activities of federal employees and prohibits them from soliciting, accepting, or receiving political contributions while on duty or in a government workspace.

"These cases come up as allegations are made and of course it just happens to coincide with election season so it's a good reminder for federal employees to remember their obligations and the Hatch Act," said OSC spokesman Darshan A. Sheth.

The normal penalty for a Hatch Act violation is removal and OSC will always ask for that, said Peter Jeffrey, an attorney and director of litigation at Mahoney and Jeffrey, a Washington law firm that specializes in federal employee issues.

Jeffrey said OSC and federal agencies should do more to educate the workforce about unacceptable political activities. "There's very little training on the Hatch Act in most agencies," he said.

He pointed to a somewhat gray area that has emerged with e-mail. As most agencies allow some personal use of e-mail while on government computers, federal employees could unknowingly violate the act just by opening an e-mail, Jeffrey said.

"Time and place restrictions are blurry now because of the use of technology," he said.

"Ignorance of the law is no defense," said OSC's Sheth. Federal employees should call OSC at 800-872-9855 for advice if they have questions about potentially prohibited activity, he said.

Ward Morrow, assistant general counsel at the American Federation of Government Employees, the largest federal employee union, said the Hatch Act should be amended to deal with social media and e-mail use. He pointed out that when the Hatch Act was last amended in 1994, when e-mail use was limited.

Morrow said the penalties "could be way out of line" as an employee might inadvertently forward something with an embedded fundraising link in it.

It's not a new problem. Three years ago, an attorney in the Hatch Act unit at OSC told Government Executive's sister publication CongressDaily that "as people become more comfortable with e-mail use, we see a spike in Hatch Act complaints."

In August, OSC issued guidelines for federal employees regarding the Hatch Act and social media.