Feds Can Be Prosecuted for Hatch Act Violations, Though Pompeo and Wolf Are Likely in the Clear

In light of recent events during the Republican National Convention this week, the independent agency that oversees civil service law reiterated on Wednesday that it will receive and review any complaints on possible violations of the Hatch Act, which limits federal workers’ political activity on the job though the potential consequences of a violation vary by type of employee.  

Ahead of the convention, outside watchdog groups and Democratic lawmakers expressed concerns over the president’s decision to give his acceptance speech from the White House due to pandemic-altered plans. However, the Office of Special Counsel outlined how certain White House employees could attend and/or help with the speech. 

Then on Tuesday night, Secretary of State Mike Pompeo broke long-standing tradition by giving a convention speech while still serving as chief diplomat. This reportedly could violate his department’s own policy in addition to the Hatch Act. Additionally, Homeland Security Department acting Secretary Chad Wolf presided over an immigration naturalization ceremony during a pre-taped event that was aired during the convention, which a top House Democrat and a government watchdog group asked OSC to investigate. The White House and the agencies maintained they took precautions to follow the law.

OSC said it stood ready to accept any complaints in connection to the RNC, though it did not specifically address the potential violations by Pompeo and Wolf.  

“OSC takes its job seriously and in recent months has increased the number of Hatch Act Unit staff to respond to the growing number of complaints typically received during election years,” Special Counsel Henry Kerner said. “OSC will continue to vigorously and even-handedly enforce the Hatch Act, consistent with its statutory authorities." 

Kerner added OSC cannot prevent employees from breaking the law, but will continue to accept complaints, launch investigations and, when appropriate, prosecute violations. 

With the exception of the president and vice president, all federal employees—including career workers, White House aides, Cabinet secretaries and all other political appointees—are subject to the restrictions of the Hatch Act. Among its responsibilities, OSC is both an investigative and prosecutorial agency. OSC can bring charges before the Merit Systems Protection Board, where it would act as prosecutor on the case. 

A former top OSC official said prosecutions are rare, as the agencies involved generally reach an agreement on appropriate punishment. They do occur, but as presidentially appointed, Senate-confirmed officials, Pompeo and Wolf would not be subject to an OSC prosecution. If an aide to one of those officials appointed through the Schedule C process were to have improperly assisted them in preparing for their convention activities, however, prosecution could be on the table. 

While five Cabinet members spoke at President Obama’s convention in 2012, he did not allow any to participate in 2016 to avoid possible Hatch Act violations. Two Cabinet officials, then-Health and Human Services Secretary Kathleen Sebelius and then-Housing and Urban Development Secretary Julian Castro, received admonishments from OSC for mixing politics with their official roles during the Obama administration. The former OSC official, present at the time of those violations, called the incidents “very minor” and “one-offs.” Then Special Counsel Carolyn Lerner wrote letters to Obama detailing the violations but did not make any disciplinary recommendations. Sebelius repaid the cost of her travel related to the incident. 

OSC, under Special Counsel Henry Kerner, recommended President Trump fire his adviser Kellyanne Conway over her repeated Hatch Act Violations. Appointees to the Executive Office of the President are afforded the same presidential deference as Senate-confirmed staffers, meaning Kerner’s complaint came in the form of a letter to Trump that the president subsequently ignored. 

“OSC could certainly do an investigation and write a report and make a recommendation, but ultimately it goes to the president,” the former official said of any possible violations at the Cabinet level during the RNC. 

That would put Pompeo and Wolf in the clear, as Trump has demonstrated he would not take any disciplinary actions against his own administration officials. A complaint and subsequent investigation into their non-appointed aides, however, could lead to OSC prosecution. 

“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?" Kerner told Government Executive last year. "Fairness dictates that the law be applied consistently regardless of an employee’s rank or agency. It is my job to make sure the federal workforce remains depoliticized and to uphold the rule of law.”

Jim Eisenmann, a former executive director at the Merit Systems Protection Board who is now an attorney at the Alden Practice Group, said the current structure may still create what Kerner had hoped to avoid. 

"If career person had done what Conway had done, there's no doubt it would have been prosecuted by OSC," Eisenmann said. "For the average federal employee, it smacks of unfairness." 

This story has been updated with additional comment.