Did an FAA employee violate Hatch Act by laying out budget scenarios?

A senior Federal Aviation Administration official is under investigation for possible violations of the Hatch Act after comments he made at a town hall meeting in Seattle were submitted by a watchdog group to the Office of Special Counsel.

John J. Hickey, FAA’s deputy associate administrator for aviation safety, may have violated the law in May, when he remarked on possible budget scenarios based on the outcomes of the November election.

In emails exchanged with the government watchdog group Cause of Action, an FAA employee who attended the meeting remarked that Hickey’s comments may have been construed as political pressure. In one email, unedited, the  employee said,“I would not be able to quote Mr. Hickey exact words, but what I took out of it was, if the conservative republication gain control of congress then the FAA could be looking at as much as a 15 percent cut in budget and we may be looking at furloughs.” The employee added that Hickey may have said, “if the liberal Democrats take control of congress then we would be looking at a flat budget. In short if the Republicans win office our jobs may be effected (furloughs) if the Democrats win office then our jobs would not be effected.”

In a separate email released by Cause of Action, another employee did not personally take offense to Hickey’s comments, but the politics of an election season may have made the comments “a hot-button issue.”

Hickey, a career civil service employee since 1990, was visiting Seattle in an effort to reach out to the agency’s workers in that region, according to the emails Cause of Action released.

The 1939 Hatch Act prohibits federal civil service employees in the executive branch from engaging in certain political activities, including actively campaigning on behalf of candidates, using their official titles at political events and fundraising. Recent violators include a General Services Administration employee who sent an email using her work account to organize a political fundraiser. All violations of the Hatch Act are investigated by the OSC, an independent oversight body within the federal government.

In an interview with NPR, Carolyn Lerner, the head of the OSC, said the law was meant to focus efforts on cases where employment was conditional on joining or fundraising for a particular party.

“Coercion cases I think are the most serious and really what the Hatch Act was intended to address, where joining a particular party is a condition of employment,” Lerner said.

John Mahoney, the Chair of the Labor & Employment Law Practice Group at Tully Rinckey added that planning agency budgets around political realities was not by itself an illegal as per the Hatch Act, but the employee’s comments could have pushed the bar.

“This employee’s comments may have crossed the line into partisan pressure,” Mahoney said.