White House employees who have committed alleged Hatch Act violations will face a review by the Merit Systems Protection Board, the Office of Special Counsel said. Philip Yabut / Getty Images
Watchdog agency to crack down on Hatch Act violators, including at the White House
An "escape hatch" for those improperly engaging in political activity will now close, Office of Special Counsel says.
White House aides and employees who improperly engage in political activity will now face disciplinary reviews before a third party rather than a unilateral decision by the president, the agency tasked with enforcing the Hatch Act announced on Monday, a change designed to close a “loophole” in existing enforcement.
The Office of Special Counsel is also tightening its Hatch Act oversight for non-White House staff, Hampton Dellinger, who was recently sworn in as the agency’s chief after President Biden nominated him to the post, announced. Former federal employees found to have violated the Hatch Act during their service will still be subject to proceedings before the independent, quasi-judicial Merit Systems Protection Board despite their departure from government service. Additionally, OSC said it will prohibit federal workers from promoting individual political candidates all year round, overriding the current practice of allowing such behavior immediately after elections.
OSC has overseen high-profile Hatch Act enforcement cases during both the Trump and Biden administrations. After a series of violations the agency recommended President Trump fire then-White House Counselor Kellyanne Conway, but Trump ignored the recommendation.
In an updated advisory opinion, OSC said there is no enforcement exclusion in federal statute for White House employees. Going forward, it said, OSC will “pursue disciplinary action” for Hatch Act violations for all non-presidentially appointed, Senate-confirmed political appointees by bringing proceedings before MSPB.
The agency’s previous interpretation relied on a 1978 Justice Department opinion on prospective legislation, which Dellinger said he now interprets as insufficient to dictate current policy. The statute calling for equal enforcement is unambiguous, OSC said, and MSPB’s fully restored quorum means there is no longer an excuse for not referring the cases to the board.
MSPB now has all three Senate-confirmed positions on its central board filled after the chamber unanimously approved Henry Kerner—Dellinger’s predecessor at OSC—for the final vacancy last week. Dellinger was narrowly approved in a 49-47 party-line vote in March, with Senate Republicans objecting to his nomination over his prior employment at a law firm that has represented Hunter Biden.
“While the Hatch Act is broad on paper, a loophole has emerged in practice: senior White House personnel (including assistants to the president and others deemed commissioned officers) aren’t being subjected to the law’s full enforcement,” Dellinger said in a Politico op-ed on Monday. “Today, that changes.”
He suggested the existing system created an “escape hatch” for White House staffers.
“This distinction creates separate and not automatically equal systems of accountability for violators, one where an independent adjudicator (the MSPB) can impose sanctions and another where it is left to the president to dole out—or not—any consequences,” Dellinger said.
Under the previous policy, career federal employees could never display or wear items that promoted political parties. Such items that advocated individual politicians, however, were permitted in the months following an election. OSC, which said in its new guidance there is no reason to have that distinction.
OSC stressed that blanket prohibitions on items displaying support for parties or politicians were consistent with federal employee speech rights, but noted the agency will always take care to protect allowable political expression. Even when operating in their official capacities, OSC said, federal workers can use words or phrases associated with specific candidates or parties when there is a “legitimate connection” to federal programs, proposals or related debates.
OSC previously ruled White House Press Secretary Karine Jean-Pierre violated the Hatch Act when criticizing “MAGA Republicans,” a decision Dellinger suggested may not have “weighted employee speech considerations quite heavily enough.”