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38–852 PDF 2008

S. Hrg. 110–275

THE PERILS OF POLITICS IN GOVERNMENT:

A REVIEW OF THE SCOPE AND ENFORCEMENT

OF THE HATCH ACT

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

(

(II)

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

BARACK OBAMA, Illinois 

CLAIRE McCASKILL, Missouri 

JON TESTER, Montana 

SUSAN M. COLLINS, Maine 

TED STEVENS, Alaska 

GEORGE V. VOINOVICH, Ohio 

NORM COLEMAN, Minnesota 

TOM COBURN, Oklahoma 

PETE V. DOMENICI, New Mexico 

JOHN WARNER, Virginia 

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 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

GEORGE V. VOINOVICH, Ohio 

TED STEVENS, Alaska 

TOM COBURN, Oklahoma 

JOHN WARNER, Virginia

RICHARD J. KESSLER, Staff Director 

JENNIFER A. HEMINGWAY, Minority Staff Director 

JESSICA K. NAGASAKO, Chief Clerk 

(III)

C O N T E N T S 

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

(1)

THE PERILS OF POLITICS IN GOVERNMENT: 

A REVIEW OF THE SCOPE AND 

ENFORCEMENT OF THE HATCH ACT 

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 meritbased 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. 

2

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 

3

1The prepared statement of Mr. Byrne appears in the Appendix on page 29. 

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 GalindoMarrone, who has been our Chief of OSC’s Hatch Act Unit since 

2000. 

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 deterVerDate 0ct 09 2002 08:09 Feb 14, 2008 Jkt 038852 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 P:\DOCS\38852.TXT SAFFAIRS PsN: PAT
4

mined 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. 

5

1The prepared statement of Mr. Bungard appears in the Appendix on page 32. 

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. 

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 

6

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. 

7

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 proor 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 

8

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? 

9

1The Court case appears in the Appendix on page 105. 

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

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 

10

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. GalindoMarrone, 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. 

11

1The prepared statement of Ms. Kelley appears in the Appendix on page 40. 

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. 

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 

12

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 

13

1The prepared statement of Mr. Gage with an attachment appears in the Appendix on page 

47. 

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. 

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 parVerDate 0ct 09 2002 08:09 Feb 14, 2008 Jkt 038852 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 P:\DOCS\38852.TXT SAFFAIRS PsN: PAT
14

ticipation 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 

15

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. 

16

1The prepared statement of Mr. Devine appears in the Appendix on page 54. 

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). 

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? 

17

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 disVerDate 0ct 09 2002 08:09 Feb 14, 2008 Jkt 038852 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 P:\DOCS\38852.TXT SAFFAIRS PsN: PAT
18

1The Court document appears in the Appendix on page 105. 

cussions 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

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 

19

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. 

20

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 email 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 

21

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. Emails 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 email 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 auVerDate 0ct 09 2002 08:09 Feb 14, 2008 Jkt 038852 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 P:\DOCS\38852.TXT SAFFAIRS PsN: PAT
22

thority, 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 

23

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 

24

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 ConVerDate 0ct 09 2002 08:09 Feb 14, 2008 Jkt 038852 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 P:\DOCS\38852.TXT SAFFAIRS PsN: PAT
25

gress 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 reauthorVerDate 0ct 09 2002 08:09 Feb 14, 2008 Jkt 038852 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 P:\DOCS\38852.TXT SAFFAIRS PsN: PAT
26

ization. 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 

27

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.] 

(29)

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