There's Plenty of Precedent for Feds Facing Discipline and Removal for Hatch Act Violations

President Trump said on Friday he would not fire adviser Kellyanne Conway despite a recommendation from a federal watchdog agency that he do so.

The Office of Special Counsel called for Conway’s dismissal on Thursday, labeling her a “repeat offender” in violating the Hatch Act for expressing overtly political views from her official White House role. Noting that Trump has authority to discipline Conway, the report said, “OSC recommends that she be removed from federal service.”

Trump quickly rejected that recommendation in an interview with Fox News Friday.

“I’m not gonna fire her,” Trump told Fox and Friends. “I think she’s a terrific person. She’s a tremendous spokesperson.” The president added that he would not counsel Conway to alter her behavior: “It looks to me like they’re trying to take away her right of free speech.”

The White House had reacted to OSC's report containing the removal recommendation with an 11-page reply by Counsel Pat Cipollone, denying that Conway violated the Hatch Act and asking the independent watchdog agency for a retraction. Cipollone also asked OSC to turn over by June 21 numerous documents used to compile the report.

In an accompanying statement, Steven Groves, a White House spokesman, called OSC’s actions “unprecedented” and “deeply flawed.” In an interview with the Washington Post, OSC chief Henry Kerner—a Trump appointee—defended his agency.

“You know what else is unprecedented?” Kerner said. “Kellyanne Conway’s behavior.”  

Kerner told Government Executive that all federal employees are beholden to the Hatch Act, and he feels personally responsible for spreading that message. 

"If a senior official is permitted to repeatedly violate the Hatch Act, how can OSC justify arguing for the imposition of discipline for lower-level employees?" he said. "Fairness dictates that the law be applied consistently regardless of an employee’s rank or agency. It is my job is to make sure the federal workforce remains depoliticized and to uphold the rule of law.”

In its original report to the White House, OSC said that if Conway went unpunished it would “send a message to all federal employees that they need not abide by the Hatch Act’s restrictions.” The agency’s track record clearly demonstrates there is precedent for punishing, and even firing, employees guilty of engaging in political activity from an official capacity.

• In 2018, OSC reached an agreement with an Immigration and Customs Enforcement employee who repeatedly told coworkers to vote for Hillary Clinton in the 2016 election. The employee agreed to resign and faced a five-year ban on federal service.
• Also last year, OSC referred to the Merit Systems Protection Board a U.S. Postal Service employee for violating the Hatch Act by running for partisan elected office while serving in his federal position. The MSPB judge removed the employee.
• OSC last year also reached a settlement to suspend without pay two USPS employees after they brought campaign posters for preferred political candidates into their office, announced their endorsements during a meeting and filmed themselves discussing politics inside their official postal vehicles, all despite warnings from a supervisor. One of the Ohio-based employees received a 30-day suspension and the other 60 days without pay.
• In 2014, OSC reached a settlement agreement with a Federal Election Commission attorney who violated the Hatch Act by posting partisan political tweets and participating in a livestream event from his office in which he criticized the Republican party and candidates. The attorney agreed to resign.
• Also that year, an OSC investigation led to a 40-day suspension for an Air Force employee who used a work email thread to send information in opposition to President Obama’s re-election.
• OSC in 2016 reached an agreement for a 50-day unpaid suspension for a Commerce Department employee who while he was in his federal office assisted Republican political candidates in Maryland with fundraising.
• Just last year, OSC reprimanded six White House officials for using Trump’s “make America great again” campaign slogan in official tweets. The agency determined the offending employees took corrective action by deleting the tweets and therefore did not recommend discipline. That followed a 2017 warning letter from OSC to White House Director of Social Media Dan Scavino after he launched a tweet-based attack on a Republican candidate running for reelection.
• Also last year, OSC found a Federal Communications Commission member Michael O’Rielly in violation of the Hatch Act when, at an event in which he used his official title, O’Rielly advocated for Trump’s reelection and the election of other conservatives. OSC issued a warning letter and said future violations would result in disciplinary action.
• The incident called to mind another high-profile Hatch Act violation when, in 2012, then-Health and Human Services Secretary Kathleen Sebelius told the audience at an official event that it was “hugely important to make sure that we reelect the president.” OSC found her in violation of the Hatch Act, and Sebelius retroactively re-labeled the event political and reimbursed the government for the cost of her travel.

This story has been updated with additional comment from OSC.