The Merit Systems Protection Board would be able to mete out a wider range of punishments for Hatch Act violators under a bill that won final congressional approval today and now goes to President Obama for his signature.
Instead of firing violators–the only authorized penalty up to now unless the board unanimously opts for a different route–the MSPB could issue formal reprimands; reduce violators’ pay grades; bar them from federal employment for up to five years; or fine them up to $1,000.
Sen. Daniel Akaka, D-Hawaii, sponsored the bill in the Senate; Rep. Elijah Cummings, D-Md., handled it in the House. “These reforms will make the Hatch Act more fair and more effective,” Cummings said in a news release this afternoon.
The 1939 Hatch Act, (officially known, in case you were wondering, as “An Act to Prevent Pernicious Political Activities”), generally bars feds from partisan political activity. It was seen both by Republicans and Democrats as needing a refresh, although the two sides differed on particulars. The status quo is “clear as mud,” Rep. Darrell Issa, R-Calif., declared at a hearing last year of the House Oversight and Government Reform Committee that he chairs. (Cummings is the top Democrat.) So far, however, Issa has not introduced any legislation.
Also pressing for change was Carolyn Lerner, head of the Office of Special Counsel, the agency charged with Hatch Act enforcement. At the law’s best, it keeps people in political power from abusing their positions, Lerner wrote in a New York Times op-ed. At its worst, she said, it prevents would-be candidates in state and local races from running for office because their jobs are in some trivial way tied to federal funding.
How trivial? Well, in one instance, a Pennsylvania policeman wanted to run for school board, but was told by Lerner’s office that the law wouldn’t allow it. His bomb-sniffing dog, after all, was funded by the U.S. Department of Homeland Security. The newly passed bill would explicitly allow local and states candidate to run for partisan political office. Obama is expected to sign the bill.
The U.S. Special Counsel on Wednesday warned that agencies could be reprimanded for targeting whistleblowers and monitoring emails that report wrongdoing.
In the memo, Special Counsel Carolyn Lerner said that targeting emails between whistleblowers and the OSC or inspectors general for surveillance is “highly problematic.” Agencies that deliberately target whistleblowers’ submissions or draft submissions to OSC or IGs could be accused of retaliating against the employees, Lerner said.
“This is the first finding that we are aware of in which a government agency has stated that there are limits on how federal agencies can monitor employee email,” Stephen Kohn, executive director of the National Whistleblowers Center, said in an interview.
The guidance comes fives months after six current and former Food and Drug Administration whistleblowers, whom Kohn represents, filed a lawsuit claiming that top FDA managers monitored and seized emails from their personal email accounts.
FDA fired two employees and did not renew contracts for two others.
The matter is pending in the U.S. District Court of Washington and at the OSC, which launched an investigation to determine whether the FDA broke personnel rules
The FDA case alone didn’t prompt OSC to release the memo, OSC spokeswoman Ann O’Hanlon said in an interview. The Council of the Inspectors General on Integrity and Efficiency had requested guidance from OSC about electronic monitoring policies.
While agencies have a right to monitor employee emails and business conducted on government-issued devices, “federal law also protects the ability of workers to exercise their legal rights to disclose wrongdoing without fear of retaliation,” Lerner said.
She also urged agencies to ensure their electronic monitoring policies do not interfere with or deter employees from reporting fraud, waste and abuse.
“There has to be a bottom line that you can’t target whistleblowers,” Kohn said.