Federal Employees Can Now Concurrently Hold Partisan Elected Office

Federal employees can hold elected partisan office while also working at their agencies, a key panel found in a ruling setting a new precedent for civil servants. 

Rodney Cowan did not have to give up his role as a county commissioner in Tennessee or be removed from his job with the U.S. Postal Service, the recently reconstituted central body of the Merit Systems Protection Board said in a decision last week. It was one of the first decisions of MSPB’s central board as it addresses its backlog of more than 3,500 cases that have piled up during its five years without a quorum. 

The board overturned a ruling from one of MSPB’s administrative law judges, who said a settlement agreement that allowed Cowan to keep both positions violated the Hatch Act. The law, which dates back to 1939, restricts the political activities in which federal employees can engage. The board has historically interpreted it to block civil servants from concurrently holding political office, leading the judge to find Cowan’s agreement with the Office of Special Counsel—the independent federal agency that enforces the Hatch Act—invalid. 

OSC appealed to the central board, however, arguing a 2012 update to the law did not actually ban the holding of partisan office and instead prohibited only the running for such a seat. Cowan conceded he violated that provision when he sought the county commissioner seat, and therefore agreed in his settlement to take a six-month unpaid suspension from USPS. Under the statute, MSPB had to sign off on the settlement.

The central board agreed to hear the appeal, noting it has not weighed in on the matter since Congress passed its modernization bill. The board’s two members, Tristan Leavitt and Raymond Limon, said the Hatch Act previously required violators to be fired from their federal job. Alternatively, the employees could forgo their elected office as a “mitigating factor” in their punishment.  

Under the new law, however, removal is no longer the “presumptive penalty” for Hatch Act violations. The board said it favors settlements as a general matter and the suspension served as an adequate punishment for Cowan’s running for office. It ordered USPS to carry out the disciplinary action and agreed Cowan did not have to surrender either position. Under the new precedent, federal employees could opt to violate the Hatch Act and run for office knowing they could keep both positions in exchange for a suspension. 

“We find nothing in the statute that requires an employee to relinquish the elected position before the board may impose an authorized penalty less than removal,” they wrote in their decision. 

Leavitt and Limon found the case important enough to prioritize. During their confirmation hearing, they pledged to work quickly to address the case backlog, promising a "triage system" to address the most pressing cases first.

Also last week, the board punted on a decision on whether its administrative law judges are properly appointed. Toward the end of the Trump administration, agencies and employees—citing a 2018 Supreme Court ruling—began arguing the board's administrative judges did not have the authority to rule on cases due to the manner in which they were appointed. Some judges, citing the lack of guidance from MSPB's non-existent central board, have punted on issuing a ruling on those cases until a federal court could intervene.

In its first ruling on the matter, the board said an Army employee brought up the complaint too late in the process. Employees cannot bring up new arguments upon appeal, the board said, and the employee failed to raise the issue when he first brought the case.