[Senate Hearing 110-275]
[From the U.S. Government Publishing Office]
S. Hrg. 110-275
THE PERILS OF POLITICS IN GOVERNMENT:
A REVIEW OF THE SCOPE AND ENFORCEMENT
OF THE HATCH ACT
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HEARING
before the
OVERSIGHT OF GOVERNMENT MANAGEMENT,
THE FEDERAL WORKFORCE, AND THE
DISTRICT OF COLUMBIA SUBCOMMITTEE
of the
COMMITTEE ON
HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
OCTOBER 18, 2007
__________
Available via http://www.access.gpo.gov/congress/senate
Printed for the use of the Committee on Homeland Security
and Governmental Affairs
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38-852 PDF WASHINGTON DC: 2008
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TED STEVENS, Alaska
THOMAS R. CARPER, Delaware GEORGE V. VOINOVICH, Ohio
MARK L. PRYOR, Arkansas NORM COLEMAN, Minnesota
MARY L. LANDRIEU, Louisiana TOM COBURN, Oklahoma
BARACK OBAMA, Illinois PETE V. DOMENICI, New Mexico
CLAIRE McCASKILL, Missouri JOHN WARNER, Virginia
JON TESTER, Montana JOHN E. SUNUNU, New Hampshire
Michael L. Alexander, Staff Director
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Trina Driessnack Tyrer, Chief Clerk
OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL WORKFORCE, AND THE
DISTRICT OF COLUMBIA SUBCOMMITTEE
DANIEL K. AKAKA, Hawaii, Chairman
CARL LEVIN, Michigan GEORGE V. VOINOVICH, Ohio
THOMAS R. CARPER, Delaware TED STEVENS, Alaska
MARK L. PRYOR, Arkansas TOM COBURN, Oklahoma
MARY L. LANDRIEU, Louisiana JOHN WARNER, Virginia
Richard J. Kessler, Staff Director
Jennifer A. Hemingway, Minority Staff Director
Jessica K. Nagasako, Chief Clerk
C O N T E N T S
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Opening statements:
Page
Senator Akaka................................................ 1
WITNESSES
Thursday, October 18, 2007
James Byrne, Deputy Special Counsel, U.S. Office of Special
Counsel, accompanied by Ana Galindo-Marrone, Chief, Hatch Unit,
U.S. Office of Special Counsel................................. 3
B. Chad Bungard, General Counsel, U.S. Merit Systems Protection
Board.......................................................... 5
Colleen M. Kelley, National President, National Treasury
Employees Union................................................ 11
John Gage, National President, American Federation of Government
Employees...................................................... 13
Thomas Devine, Legal Director, Government Accountability Project. 16
Alphabetical List of Witnesses
Bungard, B. Chad:
Testimony.................................................... 5
Prepared statement........................................... 32
Byrne, James:
Testimony.................................................... 3
Prepared statement........................................... 29
Devine, Thomas:
Testimony.................................................... 16
Prepared statement........................................... 54
Gage, John:
Testimony.................................................... 13
Prepared statement with an attachment........................ 47
Galindo-Marrone, Ana:
Testimony.................................................... 3
Kelley, Colleen M.:
Testimony.................................................... 11
Prepared statement........................................... 40
APPENDIX
Background....................................................... 63
Questions and Responses for the Record from:
Mr. Bryne with attachments................................... 72
Mr. Bungard.................................................. 103
Court document Special Counsel v. Robert Wilkinson............... 105
THE PERILS OF POLITICS IN GOVERNMENT:
A REVIEW OF THE SCOPE AND
ENFORCEMENT OF THE HATCH ACT
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THURSDAY, OCTOBER 18, 2007
U.S. Senate,
Subcommittee on Oversight of Government
Management, the Federal Workforce,
and the District of Columbia,
of the Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:06 a.m., in
Room SD-342, Dirksen Senate Office Building, Hon. Daniel K.
Akaka, Chairman of the Subcommittee, presiding.
Present: Senator Akaka.
OPENING STATEMENT OF SENATOR AKAKA
Senator Akaka. This hearing will come to order.
I call this hearing of the Subcommittee on Oversight of
Government Management, the Federal Workforce, and the District
of Columbia to order. This hearing will examine the Hatch Act,
how it is being enforced, and whether it needs to be enhanced
or clarified.
Government works best if the American people know that
their government works for them, regardless of the political
party that is in charge. The Hatch Act is an indispensable tool
for making sure that it does.
Equally important is the protection that the Hatch Act
provides for Federal workers. The Hatch Act is a central part
of a merit-based civil service system that replaced the
political spoils system. It restricts Federal employees'
partisan political action in order to protect them from being
coerced to participate in political activities.
That is why the political briefings that the White House
provided to political appointees throughout the Federal
Government have increased concern about the Hatch Act.
According to press reports, the White House provided briefings
on election results and upcoming elections over several years
to political appointees across the Federal Government. For
example, a January 2007 presentation given at the General
Services Administration included slides analyzing Senate and
Governors' races that they predict to be competitive in 2008
elections. The White House briefing seemed designed to solicit
Federal officials to engage in partisan political activities by
suggesting that the White House would appreciate their
assistance in the competitive races highlighted.
Such a practice has no place in any administration. In
order for the Hatch Act to fulfill its purpose, we must ensure
that it covers not only explicit coercion but also more subtle
encouragement of Federal employees to assist the President's
political party in elections.
At the same time, Federal employees remain free to vote as
they choose, express their opinions on candidates and issues,
and attend rallies and meetings while off duty. As a result of
amendments passed in 1993, most Federal employees are free to
take an active part in election campaigns.
The Hatch Act has not been looked at in-depth since the
1993 amendments. As we enter the 2008 election season, it is
time for Congress to ask whether the statute is doing what it
is intended to do, whether it is being enforced properly,
whether the 1993 amendments worked well, and whether the
statute needs updating.
Most employees know that they are not allowed to engage in
political work while on duty, but they may not understand nor
even know about the other restrictions. For example, Federal
employees who know that they are permitted to work on a
campaign while off duty may accidentally violate the Hatch Act
because they do not understand that they cannot directly
solicit donations for the campaign.
In particular, the line between casual workplace
conversation and political activity that is not permitted on
duty may be unclear to many employees. Does inviting a few work
friends to a campaign rally after work violate the Hatch Act?
Does it matter if an employee asks his friends by e-mailing
rather than while chatting in a break room? Does it matter if
the employee invites two friends or 20? How do employees know
where the line is?
This uncertainty may discourage employees from engaging in
conversation and off-duty political action that is allowed
under the Hatch Act. This chilling effect is particularly
likely because the Hatch Act states that an employee who
violates the statute shall be removed from his or her position.
That penalty can be reduced, and few employees actually lose
their jobs under the Hatch Act. However, many employees may
avoid doing anything that approaches the statute's reach for
fear of putting their jobs on the line. I believe that the
Hatch Act should be enforced vigorously, but that punishment
should be more effectively targeted to fit the seriousness of
the violation at issue.
Finally, I also am concerned about the difference in
treatment between civil servants and Presidential appointees
and White House staff when the Office of Special Counsel (OSC)
finds a violation. The Merit Systems Protection Board does not
have jurisdiction over violations by most Senate-confirmed
political appointees and White House staff. Only the President
can decide if these officials will be punished for violations.
Furthermore, there are no requirements on the President to take
any action on the OSC's findings. As a result, the President
has little incentive to punish his political appointees and
staff if they step over the line to help his political party.
These officials are covered by the Hatch Act, but there is no
way to enforce the statute if they violate it.
I have devoted a great deal of energy to protecting Federal
employees' rights and benefits over the years, and I believe
that the Hatch Act is an integral part of the merit-based civil
service system. Any changes to the Hatch Act must be carefully
weighed as the statute reflects a well-thought-out balance
between honoring civil servants' rights to political engagement
and protecting them from political coercion.
I want to thank our witnesses for being here today to
discuss these important issues, and I would like at this time
to welcome to today's Subcommittee hearing the first panel of
witnesses: James Byrne, Deputy Special Counsel in the U.S.
Office of Special Counsel, and Chad Bungard, General Counsel,
the Merit Systems Protection Board. I also welcome Ana Galindo-
Marrone, the Chief of the OSC's Hatch Act Unit. I understand
that you are here to respond to questions but you will not make
an opening statement.
It is the custom of this Subcommittee to swear in all
witnesses, and I would ask all of you to stand and raise your
hand. Do you swear that the testimony you are about to give
this Subcommittee is the truth, the whole truth, and nothing
but the truth, so help you, God?
Mr. Byrne. I do.
Ms. Galindo-Marrone. I do.
Mr. Bungard. I do.
Senator Akaka. Thank you very much. Let the record note
that the witnesses did answer in the affirmative.
Now I would like to hear from our witnesses. Let me first
call on Mr. Byrne for his testimony.
TESTIMONY OF JAMES BYRNE,\1\ DEPUTY SPECIAL COUNSEL, U.S.
OFFICE OF SPECIAL COUNSEL, ACCOMPANIED BY ANA GALINDO-MARRONE,
CHIEF, HATCH UNIT, U.S. OFFICE OF SPECIAL COUNSEL
Mr. Byrne. Chairman Akaka, I thank you for the opportunity
to appear before this Subcommittee to discuss the Hatch Act. My
name is Jim Byrne, and I am the Deputy Special Counsel of the
U.S. Office of Special Counsel. I am joined today by Ana
Galindo-Marrone, who has been our Chief of OSC's Hatch Act Unit
since 2000.
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\1\ The prepared statement of Mr. Byrne appears in the Appendix on
page 29.
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The Hatch Act restricts the political activity of employees
of the Federal Executive Branch, the District of Columbia, and
State and local employees who work on federally funded
programs. The Office of Special Counsel appreciates the
Subcommittee's willingness to hold a hearing on the Hatch Act.
This hearing brings visibility to the Hatch Act that can
enhance awareness and understanding and deter violations of the
law.
Today, I am pleased to provide our perspectives on the
scope of the Hatch Act, how it is enforced, and possible
enhancements. We will testify today from our experience in
enforcing the Hatch Act from closed cases. And as you know, we
cannot discuss the details of any ongoing investigations.
The Hatch Act was enacted in 1939 to address the spoils
system that had dominated the Federal workplace, under which
Federal employment and advancement depended upon party service
and changing administrations rather than performance. Congress
determined that placing limits on employees' partisan political
activity was necessary for institutions to function fairly and
effectively. The Hatch Act is essential to a government that
operates under a merit-based system and serves all citizens
regardless of partisan interests.
The Supreme Court in 1973 recognized that one of the
primary purposes in enacting the Hatch Act was to ensure: That
employment and advancement in government service not depend on
political performance, and at the same time make sure that
government employees would be free from pressure and from
express or tacit invitation to vote in a certain way or perform
political chores in order to curry favor with their superiors
rather than to act out their own beliefs.
Unfortunately, from recent headlines and our experience in
investigations, the reasons for the Hatch Act remain compelling
today. Commitment by public servants to a neutral, nonpartisan
Federal workplace is critical to fair governance and the public
trust. OSC is committed to its statutory mission to enforce the
Hatch Act, and that commitment is demonstrated in the hard work
of the career lawyers that work in OSC's Hatch Act Unit, who
are here in this room today.
In the last 2 years, the unit has issued over 5,600
advisory opinions, received approximately 600 complaints, and
investigated and completed 517 of those complaints. We resolved
68 of these without litigation, advising employees that they
were in violation, and securing their willingness to comply.
Some complaints have involved serious allegations of Federal
employees using their official authority to interfere with
elections, including targeting subordinates for political
contributions. Similarly, in State and local cases we have
investigated allegations of supervisors, including law
enforcement officials, using their official authority to coerce
political contributions from subordinates. We have been
aggressive in outreach and enforcement to educate employees
that political activity while on duty or in a Federal building
is prohibited, regardless of the technology utilized.
This year, OSC completed a successful run of litigation
involving the use of e-mail to engage in political activity
while on duty or in a Federal building. We realize that
unfortunate wording from a 2002 OSC Hatch Act advisory opinion
on the use of e-mail had been misinterpreted as a ``water
cooler'' exception for e-mail activity. As no such exception
has ever existed under the Hatch Act, we rescinded the opinion
in March, following several opinions where the MSPB agreed that
using the e-mail system to engage in political activity while
on duty or in a Federal building is prohibited by the Hatch
Act.
Complaints under the Hatch Act have increased in number in
recent years. We hope that the visibility of the Hatch Act by
this hearing and by our own expanded investigations will
reverse this trend as employees become more aware of their
responsibilities.
We look forward to your questions.
Senator Akaka. Thank you very much. Now we will hear from
Chad Bungard.
TESTIMONY OF B. CHAD BUNGARD,\1\ GENERAL COUNSEL, U.S. MERIT
SYSTEMS PROTECTION BOARD
Mr. Bungard. Thank you, Chairman Akaka, for the opportunity
to share information regarding the role of the Merit Systems
Protection Board in enforcing the Hatch Act. I request that my
written statement be included in the record.
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\1\ The prepared statement of Mr. Bungard appears in the Appendix
on page 32.
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MSPB adjudicates cases under the Hatch Act when the Special
Counsel files a complaint seeking disciplinary action for an
alleged violation of the Act. The complaint is heard by an
administrative law judge under the terms of an interagency
contract with the National Labor Relations Board. Generally,
the procedures applicable to MSPB appellate cases also apply to
Hatch Act cases. The Board does not have authority to consider
a complaint alleging a violation of the Hatch Act by an
individual who is a Presidential appointee with Senate
confirmation.
If the ALJ determines that a Federal employee has violated
the Hatch Act and that removal is warranted, the ALJ issues an
initial decision ordering removal of the employee, which may be
appealed to the full Board on petition for review. If on
petition for review the Board decides that a Federal employee
has violated the Hatch Act, the penalty must be either removal
or suspension without pay for not less than 30 days. If the ALJ
determines that a Federal employee has violated the Hatch Act
but that the appropriate penalty is less than removal, the ALJ
issues a recommended decision for consideration by the Board. A
penalty of less than removal requires, by statute, a unanimous
vote of the Board. The ALJ may initiate attempts to settle the
complaint at any time during the proceeding. If a settlement is
reached, the settlement agreement becomes the final and binding
resolution of the complaint.
If the Board decides that an employee of a State or local
agency whose principal employment is in connection with an
activity financed, in whole or in part, by Federal funds has
violated the Hatch Act, the outcome must be the penalty of
removal or determination that no penalty is warranted. If the
Board determines that removal is warranted and the State or
local agency fails to comply with the Board's order or
reinstates the employee within 18 months of the removal, the
ALJ or the Board may order the Federal entity providing funding
to the agency to withhold funds from the agency. The amount to
be withheld may be the equivalent of 2 years of pay for the
subject employee.
The Board's decision that a Federal employee violated the
Hatch Act may be appealed to the U.S. Court of Appeals for the
Federal Circuit. The Board's decision that a State or local
agency employee violated the Hatch Act can be reviewed by an
appropriate U.S. district court.
MSPB receives approximately 8,400 appeals in its
headquarters, regional, and field offices each year. From
January 2002 to September 2007, the Office of the Special
Counsel brought 36 Hatch Act cases before the Board. Of that
total, 15 cases involved State or local agency employees.
In 2006, the Board issued a series of decisions involving
allegations of Hatch Act violations for engaging in political
activity while on duty in government offices. In three of these
cases, the Board determined that the employee had engaged in
political activity that was prohibited by the Hatch Act. In the
fourth case, the Board reversed and remanded a decision by the
administrative law judge dismissing the complaint, directing
the parties to address factors identified in OSC's 2002
advisory opinion, along with any additional arguments that
would support their views as to whether a Hatch Act violation
occurred.
The Office of the Special Counsel rescinded its 2002
advisory opinion in March of this year stating that these Board
decisions provide ``clear guidance'' and intimating that the
Board held that the right to express opinions on political
subjects and candidates was limited to off-duty expressions,
that is, the ``water cooler'' exception is no longer valid. To
the contrary, the Board has not decided whether an employee's
on-duty expressions of his or her opinion on political subjects
and candidates constitute ``political activity,'' as prohibited
under the Act. In all four of these Board decisions, the issue
was whether the employees' communications exceeded the mere
exchange of opinions and urged others to take specific action
in support of or against specific partisan candidates.
As the data show, Hatch Act cases are a very small part of
the Board's overall caseload. However, these cases are very
significant to the Board's statutory mission of ensuring a
merit-based Federal civil service system. The Board endeavors
to adjudicate these cases promptly and efficiently, and in a
manner that comports with the congressional intent underlying
the Act.
I would be happy to answer questions at this time.
Senator Akaka. Thank you very much. Mr. Byrne, you
testified that the Special Counsel recently clarified that
there is no ``water cooler'' exception for engaging in
political activity via e-mail. Does a more traditional ``water
cooler'' exception exist if a group of employees casually chat
in the break room about their views on an upcoming election?
Does that violate the Hatch Act?
Mr. Byrne. Mr. Chairman, thank you for that question. The
opinion that our office put out several years ago had no
mention to any exception to the Hatch Act. We look at
situations or examples like you are discussing in the totality
of the circumstances to determine whether that activity rises
to the level of a political activity designed to influence an
election. And so there is no such animal as the ``water
cooler'' exception. Each case is looked at under that
microscope.
Senator Akaka. Thank you. Mr. Bungard, from your experience
at the Board, do you believe it is sufficiently clear to
Federal employees where OSC and the MSPB have drawn the line
between casual conversation and impermissible political action?
Mr. Bungard. Well, the Board certainly has not addressed
whether it is permissible for one to express his political
opinion either through e-mail or otherwise. That issue has not
been before the Board, and it specifically stated such in two
cases last year. The cases that were brought before the Board
last year, all four cases mentioned in the 2007 press release
by OSC, were communications that expressly advocated the
election or defeat of a candidate and sent to multiple
individuals.
Senator Akaka. Mr. Byrne, does on-duty activity and support
over a political cause that is not tied to a political party or
election violate the Hatch Act? In other words, can employees
put up pro- or anti-war posters in their offices?
Mr. Byrne. Mr. Chairman, I might ask----
Senator Akaka. This is in support of a political cause.
Mr. Byrne. Correct, that may be interpreted as a partisan
activity, rising to the level of the activity. I am going to
look over my shoulder at Ms. Galindo-Marrone, if you will
permit me, to probably address that issue, which I believe they
have done repeatedly with advisory opinions in other matters,
if you will allow.
Senator Akaka. Thank you.
Ms. Galindo-Marrone. Good morning, Chairman Akaka. And,
again, I also would like to thank you for giving me an
opportunity to answer your questions and discuss OSC's
enforcement of the Hatch Act.
And turning to your question, if the matter is not tied to
a political party, partisan organization, or candidate for
partisan political office, then certainly an employee would be
allowed to post such an item, whether it is pro-war, anti-war,
or any other matter that is in the news at the time.
Senator Akaka. Yes. And this is a fine line. The everyday
understanding of political activity includes activism on
issues, even if they are not tied to political parties. Do
employees understand this distinction?
Ms. Galindo-Marrone. I cannot answer for all employees, but
certainly in terms of our outreach efforts and our efforts in
issuing advisory opinions, when this issue is addressed we make
it very clear that unless--and going back, again, to the
definition of ``political activity,'' it needs to be connected,
tied to a candidate, a political party, or partisan
organization so that if an individual is just making a
statement about issues and not tying it to a candidate or a
party, it would not be prohibited. And, in fact, we have an
advisory opinion on that very issue up on our website.
Senator Akaka. Mr. Byrne, many people in government and
elsewhere use e-mail for both formal and informal
communications. It is an easy and efficient way to communicate
with a lot of people. However, unlike face-to-face
conversations, e-mail recipients cannot judge the writer's body
language or tone of voice, and misunderstandings about the
writer's intent may be more likely.
To either one of you, have you found that these differences
make it more likely that Federal employees will accidentally
cross the line into political action when they meant to engage
in casual banter?
Mr. Byrne. I would like to address part of that, if I
might, because that is a very good point about e-mail, somewhat
a new means of communication for some of us, I suppose, where
you do not have those expressions and the inflections and the
tones and the body language.
But on the other side--and not that I am particularly on
one side or the other on it--is the danger within e-mail that--
I will not say the equivalent, but the possibility that it will
be echoed on through forwarding and repeated forwarding and
repeated forwarding, almost as though someone is making a
conversation in the Grand Canyon and it is echoing back and
forth and continuing on indefinitely. So that is an additional
danger or additional concern that one would add to the e-mail
phenomena with communications.
Ms. Galindo-Marrone, do you have anything to add to that?
Ms. Galindo-Marrone. I guess I would like to add that just
from our experience since the 2000 election, we continued to
see a rise in terms of the use of e-mail to engage in political
activity. And I think earlier you had asked about a bright line
and the line between casual and impermissible. We take it
seriously in the Hatch Act Unit when we receive these
complaints and to look at each case on its own. We have to look
at all the facts surrounding the communication--the number of
recipients, the content, when it was sent, who it was sent to,
etc.
Senator Akaka. Well, when I hear a number like 5,600, it is
enormous. And when you say you have to take each one on its
own----
Ms. Galindo-Marrone. We are busy.
Senator Akaka. It is very difficult.
Mr. Byrne, with the 2008 election season already gearing
up, what actions is OSC taking to make sure Federal employees
understand the Hatch Act? I think it was mentioned that
education is going on, but I would like to know a little more
detail about how you are making sure that Federal employees
understand the Hatch Act.
Mr. Byrne. Thank you, Senator. I was scribbling notes down
as you were talking, and we continue our outreach program to
various agencies to make them aware of this. Fortunately, or
unfortunately, some higher-profile investigations have been
covered in the media, and we think that raises the profile of
the Hatch Act. This hearing, which we thank you for, raises the
awareness of the Hatch Act. And I think part of your question
was how are we preparing to deal with the potential rise in the
number of cases. And we have just recently hired two new
employees to bolster up the Hatch Act Unit: Nicole Eldridge out
of Rhode Island and Justin Martell here in Northern Virginia.
I think Ms. Galindo-Marrone would like to add something.
Ms. Galindo-Marrone. If I may, I would also like to say
that in gearing up for the 2008 Presidential election, we have
been more actively posting advisory opinions on our website as
we see new and unique issues or issues that keep repeating
themselves. We are being more active in placing advisory
opinions on our website as well as in this past year we took
some time--and our Deputy Chief of the Hatch Act Unit did two
DVDs targeted for both Federal employees and State and local
employees that are available off our website to assist.
Senator Akaka. You use the word ``repeating.'' What are the
most frequent types of Hatch Act complaints the OSC receives?
Ms. Galindo-Marrone. Candidacy violations, would be the
majority of the cases that we see.
Senator Akaka. Also, let me ask whether the types of
complaints or requests for advisory opinions that you see have
changed over time.
Ms. Galindo-Marrone. Could you give me a little bit more
with respect to that question just to make sure that I answer
correctly?
Senator Akaka. Yes, and I am asking for complaints or
requests for advisory opinions. And since the spoils system in
1939, many things have changed, of course, but I am just asking
whether more recently the types of complaints or requests for
advisory opinions that you see have changed over time.
Ms. Galindo-Marrone. The majority of the complaints and
also the requests for advisory opinions continue to be in the
area of candidacy. A number of employees request advisory
opinions wanting to know whether they are covered by the Hatch
Act, in particular State and local employees, and if they are
covered, can they be candidates in particular elections?
Senator Akaka. Mr. Byrne, your statement notes that the
Hatch Act reflects a judgment that placing limits on employees'
partisan political activity is necessary for the government to
function fairly and effectively. High-level officials set the
tone within agencies, and they are the officials most likely to
be, of course, in the public eye. For those reasons, it is very
important that they abide by the Hatch Act.
How has the Special Counsel's office dealt with its
inability to bring Hatch Act charges to the MSPB against most
Senate-confirmed Presidential appointees and White House staff?
Mr. Byrne. Thank you, Senator, for that question, and I
have a smile on my face when you say that, because obviously
there is a difference. We follow the law. We are law
enforcement, and we follow it within the constraints of the
statutes. And we forward recommendations on presidentially
appointed, Senate-confirmed individuals to the President and
leave it to his discretion what to do in the discipline area.
I do not really have any comment other than I acknowledge
the fact that there is a difference and appreciate the
question.
Senator Akaka. And you are following the law.
Mr. Byrne. Yes, sir. We are following the law.
Senator Akaka. Mr. Bungard, Hatch Act cases are a very
small part of MSPB's caseload. Why do you believe this is the
case?
Mr. Bungard. I really do not have an opinion on why OSC
decides to bring cases before the Board and why they do not.
But we have only had 36 decisions from 2002 to the present.
Senator Akaka. Yes. I think you mentioned that there were
68 cases without litigation, as well. So, are the Hatch Act
cases still considered a small part of your caseload?
Mr. Bungard. Very small part. We processed 8,400 appeals
this year, and we have only had 36 Hatch Act cases since 2002.
Senator Akaka. Mr. Bungard, are there other Federal
personal statutes that have a similar default punishment of
termination? If so, what are those statutes?
Mr. Bungard. I can certainly look into that and get back to
you.\1\
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\1\ The Court case appears in the Appendix on page 105.
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Senator Akaka. Mr. Byrne, State and local employees are
subject to the Hatch Act only where their principal employment
is in connection with programs financed by loans or grants made
by the United States or a Federal agency. To either one of you,
do you receive complaints about State and local employees who
do not know they are covered by the Hatch Act until they are
warned that they might have violated it?
Mr. Byrne. I am pretty sure the answer is yes, but I would
actually think Ms. Galindo-Marrone could probably answer that
better.
Ms. Galindo-Marrone. Yes, certainly, we receive a number of
complaints like that.
Senator Akaka. Mr. Bungard, the determination whether a
State or local employee is covered by the Hatch Act, is that
determination often difficult? Do many State and local
employees contest whether they are subject to the Hatch Act?
Mr. Bungard. Yes, that does come up. In fact, that came up
in, I believe, a 2006 decision was Special Counsel v. Phillips.
Did this individual fall within the Executive Branch? So that
question does come up, and the Board does contemplate that from
time to time.
Senator Akaka. Also, does the Board have jurisdiction over
State and local employees in other types of personnel actions?
Mr. Bungard. I do not believe so.
Senator Akaka. Mr. Byrne or Ms. Galindo-Marrone, in your
experience, have there been any changes in the seriousness of
Hatch Act violations that you see?
Ms. Galindo-Marrone. I am so glad you asked that question
because I wanted to supplement an earlier answer when you were
talking about the different types of advisory opinions and the
complaints, and I focused my response on saying that they
continue to be candidacy. I could not give you numbers right
now, but there has been what appears to us in the Hatch Act
Unit to be an increase in the number of complaints that we are
seeing involving what we consider serious allegations involving
the use of official authority to interfere with the results of
an election, and internally we call these the ``coercion
cases'' where you have a supervisor or someone in authority
soliciting or drawing in their subordinates to engage in
political activity. And so we are starting to see in the last
couple of years on the Federal, State, and local side more of
those cases.
Senator Akaka. Thank you.
Mr. Byrne, what is OSC's policy of releasing non-final
Hatch Act investigation reports? To your knowledge, has this
policy been followed by OSC leadership?
Mr. Byrne. Thank you, Mr. Chairman. The release of any
reports is at the complete discretion of the Special Counsel,
Scott Bloch.
Senator Akaka. I want to thank you, Mr. Byrne, Ms. Galindo-
Marrone, and Mr. Bungard, again for taking the time to appear
before the Subcommittee today. This area of the Hatch Act has
been elusive in some ways, has been misunderstood, and I am
glad that we are having this hearing. I hope that all Federal
employees and others who come under the Hatch Act would
consider trying to learn more about the fine lines, as this is
where it is very difficult. And I know you continue to be
certain that the correct advice is given, and I am hoping this
raises the awareness of the Hatch Act, what its purpose is, and
how it is used, so that it can be followed as closely as
possible.
So I want to at this time thank you for coming today and
helping us with our work here in the U.S. Senate. Thank you
very much.
Mr. Bungard. Thank you.
Mr. Byrne. Thank you, Mr. Chairman.
Ms. Galindo-Marrone. Thank you.
Senator Akaka. Now I would like to welcome our second panel
to the Subcommittee's hearing: Colleen Kelley, National
President of the National Treasury Employees Union; John Gage,
National President of the American Federation of Government
Employees; and Tom Devine, Legal Director, Government
Accountability Project.
As you know, it is the custom of this Subcommittee to swear
in all witnesses, and I would ask all of you to stand and raise
your right hand. Do you solemnly swear that the testimony you
are about to give this Subcommittee is the truth, the whole
truth, and nothing but the truth, so help you, God?
Ms. Kelley. I do.
Mr. Gage. I do.
Mr. Devine. I do.
Senator Akaka. Thank you very much. Let it be noted for the
record that the witnesses answered in the affirmative.
As with the previous panel, I want the witnesses to know
that while your oral statements are limited to 5 minutes, your
entire statements will be included in the record.
Let me call on Ms. Kelley to please proceed with your
statement.
TESTIMONY OF COLLEEN M. KELLEY,\1\ NATIONAL PRESIDENT, NATIONAL
TREASURY EMPLOYEES UNION
Ms. Kelley. Thank you very much, Chairman Akaka, for
holding this hearing today, and I very much appreciate the
opportunity to be here to discuss the Hatch Act. Your oversight
of this important issue ensures that while the administration
of Federal programs remains free of partisan political
influence, rank-and-file career Federal employees may continue
to participate as citizens in our Nation's political life.
---------------------------------------------------------------------------
\1\ The prepared statement of Ms. Kelley appears in the Appendix on
page 40.
---------------------------------------------------------------------------
Before the Hatch Act amendments that were implemented in
1994, Federal employees could not work on a campaign by
planning events, coordinating volunteers, or helping in get-
out-the-vote drives. They could not run for office within a
party structure or attend conventions or rallies or meetings as
the elected representative of a partisan organization, even on
their non-work time. You may remember all the terrible things
that some Members of Congress promised would happen if the
Hatch Act was amended. After all the speeches and the dire
predictions, however, the Hatch Act, as amended, has been a
great success. While the National Treasury Employees Union
(NTEU) would like to see less restrictions in some of the
provisions, and we think that the penalties are much too harsh
for most of the transgressions, by and large, it has allowed
Federal workers to become more fully involved and to exercise
their citizenship in a vital way.
NTEU believes, however, that some problems remain with the
current Hatch Act. There is so much gray area in the
regulations that even the Special Counsel's office couches its
opinions and advisories with vague language. What happens in
reality is that Federal employees are often so confused about
what is acceptable and what is not acceptable that they do
choose not to exercise the rights, as you suggest. We are happy
to say, however, that to the best of our knowledge, no NTEU
member has ever been charged with a Hatch Act violation.
As we have said, the Hatch Act amendments are, for the most
part, working well. There are some areas, however, that would
work better if they were clarified and some others if they were
modified, and we have supplied specific language in our written
testimony. I would like to speak briefly to five of those.
First, to codify the ``water cooler'' rule that we heard
discussed on the first panel. The current Special Counsel
rescinded an earlier advisory opinion that allowed Federal
employees to communicate by e-mail about political subjects
within narrow parameters. If the content of a message expresses
the sender's personal opinion about a candidate for partisan
political office and the audience for the message is a small
group of colleagues with whom the sender might otherwise engage
in water-cooler talk, an e-mail message should be considered a
substitute for permissible, face-to-face expression of personal
opinion, which is not prohibited by the Hatch Act.
Second, clarify the union's right to conduct nonpartisan
voter registration drives at Federal worksites. If the voter
registration drive is non-partisan--that is, that it is open to
all to register with whatever party, if any--there should be no
other factors that are relevant. It should be allowed.
Third, repeat the mandatory removal penalty. The penalty
needs to fit the crime. Fear of getting fired is an
unnecessarily harsh penalty that often deters Federal employees
from exercising the rights that they do possess.
Fourth, add a provision to Section 1215(b) of Title 5
requiring the President to report to Congress of any actions
they take in response to findings by any relevant agency of
violations of the Hatch Act or prohibited personnel practices
by Senate-confirmed Presidential appointees. Make that
reporting a requirement.
Fifth, at a minimum, allow Federal employees to run as
independent candidates for local office, regardless of whether
other candidates are running with the endorsement of partisan
political groups. And, ideally, allow Federal employees to take
leave to run for any partisan public office.
We have had enough time under the amendments to recognize
that there is no danger to either the civil service or to the
country at large in a Federal employee running for office as a
member of a political party.
On a related topic, the Special Counsel has asked for an
additional $2.9 million for Hatch Act investigations, noting
that the office needs what they call to build a capability to
do extended forensics. The decisions that have been made by the
current Special Counsel do not lead me to support that request.
In conclusion, Mr. Chairman, it took almost 20 years of
hard work by NTEU and other organizations to amend the Hatch
Act to overcome all of the dire predictions of what would
happen if we let Federal employees participate in their
government's political structure. After all the speeches and
the hand-wringing, however, the Hatch Act amendments of 1994
have been a great success, and I would be glad to answer any
questions that you have.
Senator Akaka. Thank you very much. Mr. Gage, your
testimony, please?
TESTIMONY OF JOHN GAGE,\1\ NATIONAL PRESIDENT, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES
Mr. Gage. Thank you, Senator, and thanks for calling this
hearing. My name is John Gage, and I am the National President
of the American Federation of Government Employees, AFL-CIO,
which represents over 600,000 Federal Government workers. In
1993, AFGE was a strong supporter of modifications to the Hatch
Act that clarified ambiguities in the law, allowed Federal
workers to become more politically active during off-duty
hours, and set standards that guarantee a strictly apolitical
civil service.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Gage with an attachment appears
in the Appendix on page 47.
---------------------------------------------------------------------------
AFGE continues to believe that appropriate application of
the Hatch Act by the Office of Special Counsel helps to
preserve a politically neutral workplace while balancing the
First Amendment rights of government workers. At the same time,
AFGE strongly urges Congress to exert its oversight role during
the next election cycle to monitor OSC Hatch Act investigations
against Federal workers for inconsistencies, disproportionate
penalties for minor infractions, and retaliation against union
officials.
The Hatch Act was passed in 1939 with the intention of
ensuring that the Federal civil service would be politically
neutral and the spoils system would be eliminated. On its face,
the Hatch Act and its amendments establish three limitations on
the political activities of Federal workers:
Federal and postal employees cannot engage in political
activity while on duty, in any building where the business of
the government is being conducted, while wearing a uniform or
official insignia identifying them as public employees, or
while using a government vehicle.
Federal employees are not permitted to run for partisan
political office at any level.
And Federal employees are not allowed to solicit, accept,
or receive political contributions from the general public, a
superior, or while inside a government building.
But it is also important to note that the Hatch Act also
serves to protect civic participation of Federal workers,
including the right to register and vote for the candidate of
their choice; to run as candidates for public offices in
nonpartisan elections; to assist in voter registration drives;
to contribute money to, and engage in, fundraising for
political organizations or candidates; to attend political
fundraising functions; and to express opinions about candidates
and issues.
The provisions of the Hatch Act appear to draw fairly
bright-line distinctions between what activities are and are
not permissible by Federal employees. Federal workers have a
right to participate in partisan political activities fully and
freely, except when that participation impacts the integrity of
a competitive civil service free from political influences.
AFGE has serious concerns about inconsistencies in
interpretation of the Hatch Act. The drafters of the Hatch Act
and its 1993 amendments never anticipated the extent to which
technology would change how workers communicate with each
other. Wide access to e-mail, the pervasiveness of information
available via the Internet, and instant and text messaging have
profoundly broadened the ability of one worker to communicate
with many individuals with a few strokes of the keypad. From
the ease of sending attachments via e-mail to the almost
instantaneous posting of videos on YouTube, the scope and
quantity of information readily available was almost beyond
comprehension only a few years ago. Simply put, people,
including Federal employees, have much more ways to talk now
than they did in 1939 or 1993.
In light of changes in communications technology, and to
the public discourse as a whole, AFGE would like to bring to
the attention of the Subcommittee issues where the application
of the Hatch Act appears to lag behind the reality of the
present-day workplace.
First, AFGE members have faced OSC investigations that were
extensive, time-consuming, and chilling based on allegations of
computer commission that were relatively minor e-mail
situations that ran afoul of the current OSC's broad
interpretation of the Hatch Act. In these situations, employees
forwarded e-mails that included satire or jokes about political
figures, announcements of events, or e-mails that are only
political in nature upon closer review than the worker's
initial cursory read. Often these e-mails are not shared with
the entire workplace, but instead sent to a smaller group with
whom the employee converses regularly.
Prior to the advent of computer communications, the
employee might have shared the information with a small group
of colleagues around the proverbial ``water cooler'' or during
coffee breaks. The e-mails are forwarded because the worker
simply wanted to share a funny joke and did so without much
thought by a single click of the mouse. The mere act of
forwarding an e-mail is not adopting the ideology of the e-
mail's originator.
While AFGE does not condone political activity at the
Federal workplace in violation of the Hatch Act, we do believe
that the forwarding of e-mail with political undertones to a
small group of colleagues is better addressed through the
agency's computer usage policy than an OSC official
investigation. For example, the Department of Veterans Affairs'
Automated Information Systems Security Policy clearly states
that ``electronic mail users must exercise common sense,
judgment, and propriety in the use of this Government
resource.'' The VA system also includes a table of offenses and
progressive discipline depending on the nature, scope, and
occurrence of the offense and whether the worker's misbehavior
affects the mission of the agency that should result in a
penalty for the misbehavior most appropriate to the situation.
AFGE believes this is a much more appropriate disciplinary
process when agency computer policies are violated instead of a
lengthy OSC investigation.
During previous administrations, the OSC conceded that
relatively minor Hatch Act offenses should be considered
``water cooler speech'' and issued an advisory which has been
removed from the OSC website by Special Counsel Bloch. We
believe the advisory offered a process more in line with
expected workplace discourse. Constant misuse of e-mail after
progressive discipline might require OSC involvement.
Currently, the OSC can and does take action on a first event,
even to a limited distribution. A one-time mistake by an
employee with little or no impact on the workplace should not
be punished in the same manner as partisan campaigning at the
Federal worksite.
AFGE is also concerned about the harshness of penalties
against workers for Hatch Act violations. A consideration of
mitigating factors, the Douglas factors, is necessary to
determine the degree of penalty most appropriate for Hatch Act
violations. The presumptive penalty for Hatch Act violations is
termination, with 30 days suspension as the minimum penalty.
The Board must agree unanimously to settlements, even if the
parties are in agreement. Just one dissent from a Board member
will result in the employee's termination. With the possibility
of presumed termination hanging over Federal employees who are
the target of Hatch Act investigations, many Federal employees
agree to a penalty far more severe than the offense, but one
where they will not lose their jobs.
Under previous administrations, the OSC followed a version
of progressive discipline short of seeking long suspensions or
outright termination. However, the current OSC policy is that
the Hatch Act does not provide for a warning to workers or an
opportunity to cease and desist from a violation before seeking
the harshest penalties. The resources spent by the OSC in
pursuing harsh penalties are better applied to far more serious
cases where there was a clear intent and pattern of abusing the
worker's Federal employment for partisan political purposes.
Unlike most Federal workplace laws, the Hatch Act has no
statute of limitations or even a deadline by which the OSC must
file charges. In October 2007, AFGE is representing workers--
many of them union officials--in OSC investigations that date
back to the 2004 election cycle. The lack of a deadline or
statute of limitations for filing charges provides the
opportunity for workers to be targeted for retaliation because
of their political or union affiliation. To prevent this type
of retaliation, the establishment of a statute of limitations
of 2 years--which covers an election cycle--is more appropriate
to address partisan political activities on the job.
It is normal for workers to discuss the nature and
circumstances of their employment. When the employer is the
Federal Government, it is only natural that workplace
discussions will include some discourse on political efforts to
close or move facilities or increase or decrease an agency's
budget because they directly impact the worker's employment.
Workers will seek information about their bosses--the President
and Congress--and engage in discussions about working
conditions with colleagues in the workplace. Congress should
fully utilize its oversight role to monitor Hatch Act
prosecutions so that Federal employees can have free discourse
about their jobs and the political decisions that affect them,
while deterring those few employees who intentionally seek to
use their civil service positions for partisan political
purposes.
Thank you, Mr. Chairman.
Senator Akaka. Thank you very much, Mr. Gage. Now we will
hear from Mr. Devine.
TESTIMONY OF THOMAS DEVINE,\1\ LEGAL DIRECTOR, GOVERNMENT
ACCOUNTABILITY PROJECT
Mr. Devine. Mr. Chairman, thank you for inviting the
testimony of the Government Accountability Project (GAP).
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Devine appears in the Appendix on
page 54.
---------------------------------------------------------------------------
Separation of politics and Federal employment is the
foundation for public service from a professional workforce.
Unfortunately, the merit system in general, the Hatch Act in
particular, and the civil service enforcement mechanisms that
handle these duties, both are facing challenges unprecedented
since the Watergate patronage scandals sparked passage of the
Civil Service Reform Act of 1978.
The current threat of a politicized civil service is a
reminder of why the Office of Special Counsel was created.
Watergate revealed a massive Nixon Administration operation to
replace the non-partisan civil service system with a
politically loyal workforce dedicated to partisan election
goals. Every agency had a shadow ``political hiring czar''
whose authority trumped the personnel offices'
responsibilities. The White House Personnel chief prepared the
``Malek Manual'' as an encyclopedia for how to harass career
employees out of the government by exploiting loopholes in
civil service laws. Non-complying Federal employees would be
replaced by applicants selected through a political rating
system of 1 to 4, based on factors like partisan affiliation,
campaign contributions, and future campaign value. The record
of abuses led to the Civil Service Reform Act of 1978,
including creation of the Office of Special Counsel to make
sure this never happened again.
However, in 4 years there was another severe attack on the
merit system, ironically, by then-Special Counsel Alex
Kozinski, who kept a copy of the Malek Manual on his desk and
used its techniques to purge the professional civil service
experts from his own agency's staff. He then tutored Federal
managers on how to circumvent civil service law without getting
held accountable by the Special Counsel. Eventually, the OSC
became what one Senate staffer called a ``legalized plumbers
unit,'' and that sparked passage of the Whistleblower
Protection Act of 1989.
Today's political threats to the merit system have been
less clandestine and more arrogantly brazen. Instead of shadow
political czars, agency leaders are doing the political arm
twisting themselves. Instead of harassment encyclopedias on how
to circumvent merit system rights, safeguards are being openly
canceled by experiments in running government ``like a
business'' without the red tape of due process. Twenty years
later, there is serious evidence that we have a hybrid deja vu
all over again at the Office of Special Counsel as well.
This hearing is about policy reforms rather than unraveling
the allegations about the current Office of Special Counsel
leadership. But accountability is a policy issue of the highest
order. Anti-corruption campaigns become magnets for cynicism
unless the public knows and believes the answer to the
question: Who is watching the watchdog?
Particularly significant, the OSC is seeking more money to
expand its Hatch Act enforcement program, and it is only sound
business to check the investment's track record. The current
Office of Special Counsel's record on the Hatch Act has been to
accomplish less with more. In fiscal year 2006, the agency's
$15 million budget was over $3 million more than in 2002, the
last full year before the current leadership. Yet in the
previous 3 years, the Special Counsel had produced 88 Hatch Act
corrective actions out of 585 cases. In the next 3 years, with
more money, they produced 89 corrective actions out of 793
cases. That office can and must do better.
A survey of lessons learned for recommendations on how they
can do better is instructive. One, make sure that the Special
Counsel allows the targets of its Hatch Act investigations to
see and respond to the evidence before reports are concluded or
released to the press. Draft reports should not be leaked to
the press.
Two, the Privacy Act rights of targets and witnesses must
be respected in those reports.
Three, the Office of Special Counsel should restore
scrapped staff-developed quality standards in proposed case
priority systems so we are not vulnerable to the phenomenon of
scapegoating the small fry for the petty technical offenses
that have been described this morning.
Fourth, the OSC Annual Report should resume disclosing the
number of Hatch Act investigations that are being opened each
year. If the Office of Special Counsel is to expand its duties
on the Hatch Act--and they have requested more money--we
believe that Congress should:
First, order a GAO investigation to identify wasteful
spending at the OSC that could be redirected for these valid
duties.
Second, initiate a GAO investigation of alleged merit
system violations at the Office of Special Counsel since the
2005 cut-off for the current OPM Office of Inspector General
investigation.
Third, receive the reports of that investigation and make
sure that corrective action is properly enforced.
And, finally, require regular Senate staff briefings from
OSC on the progress of any of its renewed work. GAP is on call
for Committee staff to see if we can help break the broken
record syndrome that again is threatening the merit system.
Thank you, Mr. Chairman.
Senator Akaka. Thank you very much, Mr. Devine.
The default penalty for violating the Hatch Act is
termination. That punishment is not often imposed, but it
certainly is intimidating to Federal employees. Ms. Kelley's
written testimony states that this severe penalty makes many
employees afraid to exercise their rights. I would like to hear
more from anyone on the second panel about this issue. Based on
your discussions with Federal employees, do you know of
examples of individuals who avoid activities that are allowed
under the Hatch Act out of fear of risking their jobs?
Let me start with Ms. Kelley.
Ms. Kelley. NTEU goes to great lengths to train NTEU
leaders on the Hatch Act and on what they can and cannot do
because we want them to maximize the rights that they have and
to exercise them as every other American citizen does. But
invariably the discussions lead to gray areas, such as the
``water cooler'' situation, or the issue of, well, what happens
if they think I did something wrong, what is the penalty. And
when the answer is termination, I would advise anyone who I
represent that they do not want to be set up to be a test case
before the Office of Special Counsel.
And so while we give them all the information and what the
law is and what the history is, in the end if they believe for
a minute that a manager could zero in on them and make them a
test case for OSC, they back off and they decide that the
interest they had in exercising their rights has been squelched
quite a bit because they do not want to do that. And I
understand that.
Like I said, we give them all the support, all the
information, all the education, but there is a fine line that
is not well defined in many instances, per my testimony. And I
cannot guarantee them they will not be facing a proposed
termination.
So I think that many who would step forward and exercise
their rights do not do it because they see decisions coming out
of the OSC, they see other Federal employees doing things that
they could innocently find themselves doing with no ill intent,
and surely with no intent to violate the law, and yet see
themselves being brought up on those charges.
Senator Akaka. Mr. Gage.
Mr. Gage. I think your question is right on point, and I
would like to quote from an administrative law judge on a case
that we just got this decision on last month, and he says,
``One can only hope that the United States Congress will
revisit its 1993 amendments and make clear exactly what sort of
conduct it intended to prohibit and what sort of penalties it
intended to exact. It is hard to believe that it intended to
exact a penalty of termination or a substantial suspension
without pay for conduct as trivial as that for which Mr.
Wilkinson is being punished and for conduct as trivial as that
for which other Federal and State employees may be punished in
the future.'' \1\
---------------------------------------------------------------------------
\1\ The Court document appears in the Appendix on page 105.
---------------------------------------------------------------------------
And this judge had to uphold the settlement, which was for
30 days suspension. But even in that, he said, ``This is a
complaint that should never have been filed and, having been
filed, should have by a prosecutor with any sense of fair play
been settled for a warning letter. Departing from its usual
practice, the Special Counsel initiated this proceeding without
first warning Mr. Wilkinson that it believed that his conduct
violated the Hatch Act and without giving him an opportunity to
cease such conduct.''
There is another case, too, that we just received, and in
this one, one of our union leaders had invited a Congressman to
come to the VA hospital to show him the conditions at that
hospital. No politics intended. This had been scheduled for
almost 6 or 7 months ahead of time, but was postponed twice--
once because of the death of Governor Ann Richards down in
Texas. But our local president, because a Congressman came in
to look at the VA conditions, received--had to undergo almost a
year-long investigation. And this is the type of rule that I
think are hidden because in their dismissal letter, the OSC
says, ``Typically, visits by candidates so close in time to the
day of their elections are viewed presumptively as campaign
events, which are prohibited in Federal room or building.''
This visit took place 5 weeks before an election. Now, is 6
weeks okay? Is 7 weeks okay?
There are some hidden rules here that I do not know how
anyone can expect a Federal employee or a union official to be
able to comply with.
Now, Congressmen do their jobs through their whole term,
and we have to petition Congress through their whole term. But
to say presumptively that any visit by a Congressman--and that
is not even close to an election--will be viewed as a violation
of the Hatch Act, there is something amiss here, Senator. This
OSC has gone overboard in their interpretation of the Hatch
Act.
Mr. Devine. Mr. Chairman, I think it is very clear how
deeply GAP believes in the Hatch Act, but I am equally
concerned that if OSC enforcement activities are expanded under
that law, we could have a threat from a whistleblower
retaliation based on dissent; whistleblower retaliation being
branded as Hatch Act violations.
Consider what has happened in the area of national
security. National security whistleblowers have been almost
routinely attacked as aiding and abetting the enemy when they
challenge Executive Branch breakdowns in homeland and national
security. We are concerned that when whistleblowers challenge
Executive Branch breakdowns in public service, they could be
attacked for aiding and abetting the Democrats. I think it is
very important that if this office's responsibilities and
resources are expanded, that they be kept on a very tight leash
to see that we do not abuse any increased powers.
Senator Akaka. Thank you for that.
Ms. Kelley, Mr. Gage's testimony suggests that the Douglas
factors for progressive discipline could be included in the
Hatch Act. Ms. Kelley, you also testified that the Hatch Act
punishments should fit the crime. Would you support
incorporating the Douglas factors into the Hatch Act? Or would
some other system be preferable?
Ms. Kelley. Well, the idea that the Douglas factors would
apply, just as they do to every other charge that an employee
could find themselves faced with in the Federal sector, makes
perfect sense. And then the question is the vehicle, whether
the language needs to be in the Hatch Act or whether it is made
clear through other means that Douglas factors applied to all
workplace issues, including the Hatch Act. I mean, how that is
done is--NTEU is interested in talking with you and working
with you and with Mr. Gage in how that gets addressed. But the
bottom line, I think we all agree, is that a single penalty of
termination for an undefined offense, because there can be such
a wide range of an inadvertent comment made to an e-mail sent
to 10 or 20 people to a formal invitation to come and vote,
with somebody or for somebody--I mean, there is such a wide
range. So the idea that there is only one penalty just does not
seem to make sense in any situation, including applying the
Hatch Act.
Senator Akaka. Mr. Gage, would you like to comment about
that?
Mr. Gage. I think Ms. Kelley said it well.
Senator Akaka. Thank you.
Well, Mr. Devine, you suggested that the OSC should develop
a system to prioritize Hatch Act cases. Could you tell us more
about how such a system would work?
Mr. Devine. There is no need to reinvent the wheel on that
type of project, Mr. Chairman. This was a multi-year project
under the prior Special Counsel. There was a staff consensus on
some standards to make sure we are not scapegoating the small
fry, we are going after truly significant threats to the merit
system. That should be put back in the active files, dusted
off, reviewed, and implemented.
The idea that people should be facing the death penalty for
relatively technical violations of this law, it cannot
withstand any scrutiny at all. It is time to restore basic
principles of attacking the conceptual threats and doing it in
a professional manner. That just has not been happening.
Senator Akaka. This question is for all of you, if you
would care to respond. I would like to hear more about where
the line between casual conversation and impermissible
political action has been drawn where e-mail is involved. Ms.
Kelley.
Ms. Kelley. I do not think there is a clear line. I think
that employees think about it the way they do business every
day. They used to not have e-mail access, and they knew just
how to talk, and if someone overheard you or thought you were
saying or implying something, then you could be the subject of
an allegation. But e-mail is a very different way to
communicate, and it is just too easy. Very often, when I speak
with NTEU leaders about other things, not just the Hatch Act,
we talk about how casual it is and how easy it is to turn
around, type something, hit send, and never think through the
ramifications of what could happen when 10 or 20 or 100 people
read that.
So I think there has to be consideration given to the
change in how people communicate, all the questions around
intent, I mean, the same logical factors have to be applied.
And there does not seem to be an interest by this Office of
Special Counsel in doing that. And it is not addressing the
realities of the workplace today, in my view, and setting a lot
of employees up for potential problems when they are not
intentionally doing anything wrong.
I think intent is one of the things that is being totally
lost when you think about the method of communication of e-
mail. It is too casual. It is very risky.
Senator Akaka. Mr. Gage.
Mr. Gage. Yes, I think that is right. Intent does have a
place here. And, also, you are not really--how is an employee
coercing another employee on anything partisan by sending them
an e-mail? But the past panel was talking about in your
question to support the war or not, and the interpretation of
issues, even on budgetary issues that an agency might be
facing--and we have had people warned on talking about real
conditions that are facing their agency coming from Congress on
budget, closings. That is up to the line on the Hatch Act.
When you have only termination, 30 days suspension, and
that can drill down to employees' opinions on real things that
are happening to them, I think it is very clear that this law
is being used to coerce Federal employees to stifle all
discussion on the worksite and that there are no clear lines so
you better keep your mouth shut and not get in trouble. And I
think that is wrong, and the Special Counsel has gone way too
far in their interpretations of this.
Mr. Devine. Mr. Chairman, I think my colleagues are right.
E-mails are being used for the same type of communications that
used to be casual conversation. The problem is that we now have
a permanent record of something that used to have about the
same legacy as a popped soap bubble. So it means that there is
a different context for casual communications. It should not be
chilled, however. To me, the way to draw a line on this is not
to ignore that something was said, but a much stronger criteria
whenever an e-mail comes into play for OSC review is what are
the reactions to follow up or match any of those
communications.
This is truly an area, probably more than any other, the
mention of the permanent record, where talk is very cheap.
People are almost thinking out loud in e-mail. There really
shouldn't be investigations or prosecutions pursued just on the
basis of those types of communications. There has to be some
corroboration through deeds.
Senator Akaka. As Mr. Gage testified, it seems natural that
Federal employees will talk amongst themselves about
Presidential and congressional elections because these
elections can greatly affect the conditions of their
employment. This does not seem terribly problematic, but the
challenge is how to accommodate this type of conversation while
protecting workers from coercion.
Would it be feasible and desirable to amend the Hatch Act
to make clear that political speech in the Federal workplace is
permitted as long as it does not involve communications between
a supervisor and subordinate or between a Federal official and
a member of the public? Mr. Gage.
Mr. Gage. I would be very supportive of that. I think that
the original law was to stop coercion. It was not to stop all
discussion. With that kind of standard, the Hatch Act would be
a lot clearer to everyone, and that you would not see these
type of huge penalties and these secretive and very chilling
investigations removing all political discourse among employees
who have no ability to coerce or force a colleague.
So I would be very much in favor of that, Senator.
Senator Akaka. Ms. Kelley.
Ms. Kelley. I think that just the concept of what you are
allowed to do versus what you are not allowed to do--because
today most of what is in the Hatch Act is what you cannot do,
and that would clear up an awful lot of ambiguities for a lot
of employees and also make it clear that they have their right
of free speech just as every other American citizen does. So I
would be very interested in working with you on language like
that.
Mr. Devine. Mr. Chairman, I think that GAP's contribution
to this answer is predictable. This goes to the heart of the
concern raised earlier about whistleblowing being renamed as
political campaigning. The law should be very clear that if an
employee is blowing the whistle, that is, disclosing evidence
that he or she reasonably believes, information that person
reasonably believes is evidence of illegality, gross waste,
gross mismanagement, abuse of authority, or substantial and
specific danger to public health or safety, that those free
speech rights are not canceled because a politician is
identified as participating in an election campaign or because
it could have an impact on some pending election campaign.
It is a very sensitive boundary. The Hatch Act should not
be abused to gag people from blowing the whistle merely because
there are political consequences.
Senator Akaka. Thank you. During the first panel, Mr. Byrne
clarified that on-duty support of a political cause that is not
tied to a political party or election does not violate the
Hatch Act. Do you believe that Federal employees understand
that distinction?
Ms. Kelley. I do not think that many of them do, Mr.
Chairman. I think they do not draw the distinction. What they
see, again, are rules or opinions coming out from this Special
Counsel saying you cannot do this and you cannot do that. And,
therefore, they worry how wide of a net that actually throws.
I think there is a lot of misinformation out there among
Federal employees, not just front-line employees but even
managers. We have had situations at NTEU where employees are
circulating a petition to a Congressman or a Senator asking for
support of appropriate Federal pay or protection of retirement
benefits, a Federal employee issue that they have every right
to communicate with Congress on. And we have had managers tell
them that it is a Hatch Act violation to ask them to send a
letter to their Congressman on their lunch hour in a Federal
building.
Well, NTEU intervenes and, of course, we straighten out the
manager and the labor relations manager who gave bad advice,
but that is just an example. Those kinds of things could put
such a chill on employees. If they see that management is going
to say they cannot even write a letter to their Congressman,
then they surely are not going to be willing to assume that
they can do these other things.
And I also would suspect that there have been some cases,
and I do not have any specifics, but I would be surprised if
there are not management officials out there saying you cannot
put up a sign in your office that says you were for or against
the war because it is political. I think there is an
overgeneralization all the time. So whether it is statutory
language or whether it is a Special Counsel putting out the
kind of information that employees need, something is needed to
correct that.
Senator Akaka. Mr. Gage.
Mr. Gage. Agencies routinely put out very chilling warnings
on the Hatch Act, and an employee, when he gets these warnings,
he is clearly going to err on the side of ``I am not going to
be talking politics, I am not even going to be talking
legislative issues, I am not going to be talking anything.''
We have had so many questions come to us where we will have
a meeting of employees to talk about legislative issues, and
people are afraid to come to the meeting because they saw a
very severe Hatch Act warning that is distributed to every
employee and talked about with such huge penalties for any type
of misstep.
So I think there is clearly a problem here with the heavy-
handedness of the penalties and then the gray area of, or not a
gray area, but how employees see it as a gray area just talking
about a legislative issue, which they have perfectly every
right to do, but they are erring on the side of just staying
away from everything. And I really think that is unfortunate.
Now, I do not know how you correct that, but I know how you
encourage it, and that is by sending out these really draconian
warnings every 6 months or so, and especially during a
political season.
Senator Akaka. Mr. Devine.
Mr. Devine. Mr. Chairman, this is a more conceptual
response. The last 6 years have been the Dark Ages in the
Executive Branch for freedom of speech. In my 29 years at GAP,
the chilling effect is unprecedented for freedom of speech in
the civil service. Bad sweeps aside, the distinctions of what
is on the right or the wrong side of legal boundaries, you
cannot open up your mouth. And it is very important that if the
good-government agencies are going to step up their enforcement
for misuse of free speech, they ought to be correspondingly
stepping up their enforcement for the valid cherished exercises
of free speech, such as whistleblowing.
Senator Akaka. Thank you.
Ms. Kelley, both AFGE and NTEU--this is also for Mr. Gage--
invest in educating your members about the Hatch Act. Are you
engaging in any additional efforts to ensure that your members
understand the Hatch Act as the 2008 elections approach?
Ms. Kelley. Definitely. Each election cycle we gear up the
training that we have always done over the years and then
enhance it in an effort to get it to as many employees as
possible. We start that through our NTEU leadership structure,
and then our chapters across the country do that. And we do it
not only to caution them on what the rules are, but because we
want them to understand and be comfortable so that more and
more Federal employees exercise the rights they have and that
they should be exercising to be active in the political
process. And without that information and education, there are
too many of them who believe that it is the way it was before
1993 and that there are still those rules.
It is not unusual for me to meet with our members who think
they still cannot do things that they have been able to do for
the last 12 years. So that is our goal, and we absolutely
enhance those and ratchet them up with each new election cycle
because of things we learn, because of problems we hear in the
workplace, to try to help clarify, and to remove the obstacles
from employees exercising these rights.
Senator Akaka. Mr. Gage.
Mr. Gage. Yes, we have been hit pretty hard in the last two
election cycles with our activists. Quite a few cases and
investigations. We are pulling all of our activists into
Pittsburgh at the end of this month, and a large part of that
conversation will be on how to handle yourself in the light of
the Special Counsel and the Hatch Act. And I must say we are
also taking all our VA activists, about 500 of them, to Hawaii
in November, and we look forward to that, and we will be
talking with them there about the Hatch Act.
But it is a slippery slope because all you can do, even
when you train people, is say do not do this, do not do that,
do not even come close to it because you will be prosecuted and
your job is on the line. So it is really tough training to get
people to understand what they cannot do, and even hardened
union activists, to be able to tell them and for them to
exercise what they should be able to do as citizens.
So it is a very difficult thing, and I am sure Ms. Kelley--
and I know I do--we put a lot of time, money, and effort into
trying to not have our people lose their jobs. But when you
just look at our laundry list in our union of people who have
been investigated--for nothing, for trivial things--it just
resonates across our activists and has a chilling effect on
really seasoned union people who are trained, who are still
volunteers and do not want to lose their job, let alone on a
rank-and-file member or employee.
Senator Akaka. To both of you again, only the President can
punish certain political appointees and White House staff for
Hatch Act violations. Does this create an impression with your
members that the Hatch Act is enforced unfairly? Mr. Gage.
Mr. Gage. I was down in New Mexico, and Vice President
Cheney had a political rally at the stadium there. Kirkland Air
Force Base is one of our unions. E-mails went out from
management that people would have approved leave and could not
wear their uniform or any insignia. Free passes were passed out
by the Public Relations Office of the base. And we complained,
and that investigation went nowhere. And I really could not
understand. It just seemed so blatant, all this activity
occurring on the base, passing out tickets for management as
well as advertising the issue and encouraging employees to go.
Now, that seems to be over the line, yet nothing became of
it.
Ms. Kelley. Anytime there is a double standard, employees
notice it, especially when the harsher implementation seems to
be aimed at the front-line employees rather than those who head
up the agencies. So surely it is noticed. Because of the
differences in handling when there are allegations against
political appointees, and because of all the press coverage, of
course, that brings it to the attention of the employees.
But as I said in my testimony, I believe there should be a
requirement on the part of the White House that when these
allegations are made, they should be required--he or she should
be required to submit a report to Congress of the allegations
made and of the results of the investigation. They should not
be allowed to be swept under the carpet just because it is a
political appointee, because we surely do not see that kind of
a handling when there are allegations against front-line
employees.
Senator Akaka. Ms. Kelley, your written testimony contains
a proposal to require the President to report to Congress on
his or her actions in response to an OSC finding that a Senate-
confirmed political employee violated the Hatch Act. Can you
tell me more about that proposal?
Ms. Kelley. Well, I just do not think it should be allowed
to be swept under the carpet. There should be accountability
there. There surely is accountability for every other Federal
employee in any position across the government. And it should
not be allowed to be shrouded in secrecy. The assumption will
always be that they got a free pass because they are a
political appointee, and whether they did or did not, whatever
the facts were in the case, that should be at least required to
be reported back to Congress for Congress to decide whether or
not the White House acted appropriately. And at this point,
there is no accountability there at all, and we think that is
unacceptable.
Senator Akaka. Mr. Gage and Mr. Devine, do you have any
comments to make about that?
Mr. Devine. Yes, Mr. Chairman. This is an inexcusable
conceptual conflict of interest. It is an Achilles heel for the
legitimacy of the Hatch Act. If the President has the final
word on whether his political appointees or her political
appointees have illegally tried to benefit the President's
party, what in the world is the public policy justification for
not subjecting this type of illegality to the normal system of
legal accountability?
Senator Akaka. Mr. Gage, do you have any comments?
Mr. Gage. No, Mr. Chairman.
Senator Akaka. Mr. Devine, I want to thank you for your
long service working to protect the whistleblowers--you
mentioned that several times here--an issue that is very
important to me. I think you know that I have been pressing
this and have been trying to get reform enacted.
I would like to hear a little more about how the Hatch Act
fits into the system of protecting the merit-based civil
service system and how it interacts with statutes such as the
Whistleblower Protection Act. Can you speak to that issue?
Mr. Devine. I would almost analogize the relationship
between the Hatch Act and the Whistleblower Protection Act to
the Privacy Act and the Freedom of Information Act. They are
two sides of the same coin. Although they are serving what can
appear to be inconsistent directions of law enforcement, the
reality is they are both united by a common principle:
Defending freedom of speech where it furthers public service to
the taxpayers, and restricting speech which is trying to
politicize public service to the taxpayers. This is a very
delicate balance, and it means that the agency responsible to
set that balance has to have sound legitimacy based on earned
trust through its competence to enforce the law in both those
directions; and its objectivity so that politics does not shade
how it sets those scales.
Senator Akaka. Thank you for that. Mr. Gage, you mentioned
cases in which OSC is investigating Hatch Act allegations that
date back to 2004. When were these investigations started? And
have you received any explanation for the delay?
Mr. Gage. No, and neither have the people who are subjected
to these investigations. That is why, in our testimony, I
really call for a statute of limitations. This cannot be
allowed to go on forever that people are just under the cloud
of an investigation. Along with putting in realistic penalties,
a statute of limitation I think is just basic due process for
the people who are facing this type of charge.
Senator Akaka. Mr. Devine, your testimony is quite critical
of the current Special Counsel as well as former Special
Counsel Alex Kozinski. As we look to the future, how can
Congress work to improve the independence, effectiveness, and
accountability of the Special Counsel?
Mr. Devine. I think that your Subcommittee is making a very
good start in its efforts for the Office of Special Counsel
reauthorization. That has the potential to really change how
operations occur on the ground within the Office of Special
Counsel.
The second answer to your question, though, Mr. Chairman,
is--again, not reinventing the wheel at all. The magic word is
oversight, oversight, oversight. And our organization is glad
to help to the extent that the Subcommittee wants to expand its
investigative efforts, by sharing the allegations that we have
been receiving from whistleblowers within the Office of Special
Counsel about the breakdown in the merit system internally
there.
That to me is probably the most significant weather vane
for whether that agency is trustworthy to police the rest of
the merit system. Are they respecting those principles in the
Special Counsel's own house?
Senator Akaka. Well, let me ask a final question of Ms.
Kelley and Mr. Gage. Can each of you tell me about any recent
problems or any recent concerns that you have had with
conducting non-partisan voter registration in Federal
buildings? Ms. Kelley.
Ms. Kelley. Well, I would describe our problems, they tend
to be, again, in the area just of ignorance by management
officials. And so we say we are going to do voter registration,
and they say, ``We cannot because it is Federal property,'' or
``We cannot because there is a candidate in that area who is
running for office who has been endorsed,'' which has and
should have nothing to do with anything. So then we have to
educate them. It takes weeks. Sometimes we have to reschedule
the voter registration drive until they can get their facts
right and get those above them to tell them that NTEU is right
and that they are misreading the rules under the Hatch Act.
So it is a constant problem with misinformation out there
even in the management ranks who, again, put a very chilling
effect on NTEU members who want to participate and they are
grateful for the opportunity to be able to register to vote
right there at the worksite.
So I do not have any reports where we have been denied,
where they have shut us down, because in the end we are able to
convince them that they are wrong and that they are misreading
the statute. But it is tedious, it is time-consuming, and it is
ongoing.
Senator Akaka. Mr. Gage.
Mr. Gage. Ms. Kelley may have done a better job than that
to us, but when the AFL endorsed, and we are a member of the
AFL, we were blocked from doing any voter registration in the
agencies that we represent. And that interpretation is
relatively recent. That does not go back. If an umbrella
organization endorses that you are estopped from doing non-
partisan voter registration, I just do not understand it. And I
think that any group or any legitimate group should be able to
do non-partisan voter registration. Voter registration is not a
partisan activity. Yet we were blocked in agency after agency
simply because an umbrella organization endorsed a candidate.
Ms. Kelley. Mr. Chairman, if I could just clarify, the
situations I talked about where education is so important
because the agencies have misinformation. We are in a pre-
endorsement environment. Once NTEU, because of the way the
rules are interpreted today, we work very hard to make sure
that we do as many voter registration drives as possible before
there is an NTEU endorsement of a candidate in a Presidential
election. But up until that point, we have these ongoing
problems with misinformation.
In my testimony, what I suggest is that it should be made
clear that under the Hatch Act that should not be a
requirement--it should not matter if an organization has
endorsed or not. The fact is if it is a voter registration
drive that is open voter registration, that anyone can register
for any party if they so choose and everyone is invited and
accessibility is made, then what difference does it make if
there has been an endorsement or not? It is a voter
registration for every American citizen who has the right to
vote. And that should be something that should be supported by
not just the Hatch Act but by any legislation that is passed
for full participation.
Senator Akaka. Mr. Devine.
Mr. Devine. Mr. Chairman, I would just like to make a P.S.
to an earlier comment that I think is in the background to
today's hearing. You expressed recognition of GAP's work for
whistleblowers. I think it is important to get in the public
record appreciation for your leadership on whistleblower
issues. We gave you a Public Service Award at our GAP's 30th
anniversary recently, because whistleblowers need 100 of you in
the Senate. And we are very hopeful that after 8 years of work
by your staff that in the next few weeks the Whistleblower
Protection Act will be born again in the Senate and that we
will finish the job this fall.
Senator Akaka. Well, thank you very much. I want to thank
you and all of our witnesses today for the time you spent in
preparing, presenting, and responding with valuable information
to this Subcommittee. We appreciate the hard work that all of
you do to ensure that the Federal Government works for the
American people regardless of the party in the White House, and
that Federal employees are free from political coercion in the
workplace.
Today's hearing highlights the need to improve the
education that Federal employees receive on the Hatch Act. We
need to make sure that all Federal employees receive complete
and accurate information to understand their obligations under
the Hatch Act. Additionally, we need to ensure that the rules
governing Federal employees' conduct are clear and
understandable. Furthermore, I am troubled that the civil
servants could lose their jobs for engaging in casual political
banter at work while White House staff and Senate-confirmed
political appointees effectively are insulated from punishment
for Hatch Act violations.
This Subcommittee will continue its attention to the Hatch
Act in the future, and, again, I want to thank you for helping
us do that. The hearing record will be open for one week for
additional statements or questions other Members may have.
This hearing is adjourned.
[Whereupon, at 11:51 a.m., the Subcommittee was adjourned.]
A P P E N D I X
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