UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2010 MSPB 159 

Docket No. CB-1216-09-0013-T-1 

Special Counsel, 

Petitioner, 

v. 

Phillip Mark, 

Respondent. 

August 2, 2010 

Carolyn S. Martorana, Esquire, and Mariama Liverpool, Esquire, 

Washington, D.C., for the petitioner. 

Timothy Welsh, Esquire, Atlanta, Georgia, for the respondent. 

BEFORE 

Susan Tsui Grundmann, Chairman 

Anne M. Wagner, Vice Chairman 

Mary M. Rose, Member 

OPINION AND ORDER

¶1 The respondent has filed a petition for review of the initial decision that 

found his removal was warranted for violating provisions of the Hatch Act, 5 

U.S.C. §§ 7321-7326. For the reasons discussed below, we GRANT the petition 

for review under 5 C.F.R. § 1201.115(d),1

 AFFIRM the initial decision’s findings 

 

1

 The initial decision in this Hatch Act case is subject to the procedures for filing a 

petition for review set forth under 5 C.F.R. part 1201, subpart C. See 5 C.F.R. 

§ 1201.125(b). 
2

that the respondent violated the Hatch Act, and ORDER a 120-day suspension for 

the respondent. 

BACKGROUND

¶2 The petitioner filed a four-count complaint charging that the respondent, an 

Internal Revenue Service (IRS) Revenue Agent, violated the Hatch Act by 

forwarding one e-mail on January 11, 2008, to numerous individuals including 

co-workers. The e-mail, from then-presidential candidate Barack Obama, 

solicited online contributions. The respondent had added the following message 

to the forwarded e-mail: “FYI . . . if you want to help out the campaign! PS . . . 

If you are tired of getting e-mails from me, just let a brotha know!” The 

respondent sent the e-mail while on duty from his government office and the email included his name, title, group, duty location, and telephone number. The 

petitioner charged the respondent with the following: 1. Violation of 5 U.S.C. 

§ 7323(a)(1) and 5 C.F.R. § 734.302: Prohibition Against Using One’s Official 

Authority or Influence for the Purpose of Interfering with or Affecting the Result 

of an Election; 2. Violation of 5 U.S.C. § 7323(a)(2) and 5 C.F.R. § 734.303: 

Prohibition Against Knowingly Soliciting, Accepting or Receiving a Political 

Contribution from Any Person; 3. Violation of 5 U.S.C. § 7324(a)(1) and 5 

C.F.R. § 734.306(a)(1): Prohibition Against Engaging in Political Activity While 

On Duty; and 4. Violation of 5 U.S.C. § 7324(a)(2) and 5 C.F.R. § 734.306(a)(3): 

Prohibition Against Engaging in Political Activity While in Any Room or 

Building Occupied in the Discharge of Official Duties by an Individual Employed 

by the United States Government or Agency Thereof. Complaint File (CF), 

Tab 1. The petitioner asked for the respondent’s removal. CF, Tab 16 at 2-3, 

7-17. 

¶3 In responding to the petitioner’s complaint, the respondent admitted to the 

facts underlying the counts and to counts 2-4. He also admitted that he violated 
3

the Hatch Act. CF, Tabs 4, 10, 13, 17 at 7, 12. He asserted, however, that his 

offense warranted a 30-day suspension rather than removal. Id., Tab 17 at 18. 

¶4 In his initial decision, the administrative law judge set forth the 

background of the case, found that the respondent admitted to three counts, and 

found it unnecessary to make a finding on the fourth count because he found that 

the three counts were sufficient to support removal. Initial Decision (ID) at 2-4. 

He considered the six factors that the Board considers in determining the 

appropriate penalty in Hatch Act cases. Id. at 4-8. He also considered other 

factors, including the respondent’s knowledge of the Hatch Act restrictions. Id.

at 8-9. He concluded that removal was warranted for the respondent’s Hatch Act 

violation. Id. at 9. 

¶5 The respondent has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. The petitioner has filed a response opposing the petition for review. 

Id., Tab 3. 

ANALYSIS

¶6 Because the respondent has not challenged the administrative law judge’s 

factual findings and we perceive no error in that regard, we AFFIRM his 

conclusions that the respondent violated 5 U.S.C. §§ 7323(a)(2) and 7324(a)(1)-

(2) of the Hatch Act. Accordingly, we proceed directly to a discussion of the 

appropriate penalty for the violations. See Special Counsel v. Ware, 114 

M.S.P.R. 128, ¶ 18 (2010); Special Counsel v. Acconcia, 107 M.S.P.R. 60, ¶ 4 

(2007). 

¶7 The respondent asserts that the administrative law judge erred in 

concluding that removal was warranted for his Hatch Act violation. He reiterates 

that the Board should impose only a 30-day suspension. He apparently contends 

that removal is not appropriate unless the petitioner shows that his violation 

occurred under circumstances demonstrating deliberate disregard of the Hatch 

Act, and that the record does not demonstrate any such deliberate disregard. He 
4

also contends that the administrative law judge erred in addressing some of the 

penalty factors and not finding that they favor mitigation. He further contends 

that his knowledge of the Hatch Act was not a factor warranting removal and that 

the penalty contradicts Board precedent. PFR at 6-14. 

¶8 In considering whether removal is warranted for a Hatch Act violation, the 

Board looks to the seriousness of the violation, considering all aggravating and 

mitigating factors that bear upon the seriousness of the violation. Those factors 

include the following: (1) the nature of the offense and the extent of the 

employee’s participation; (2) the employee’s motive and intent; (3) whether the 

employee had received advice of counsel regarding the activity at issue; 

(4) whether the employee ceased the activities; (5) the employee’s past 

employment record; and (6) the political coloring of the employee’s activities. 

Ware, 114 M.S.P.R. 128, ¶ 20; Acconcia, 107 M.S.P.R. 60, ¶ 4; Special Counsel 

v. Purnell, 37 M.S.P.R. 184, 200 (1988), aff’d sub nom. Fela v. Merit Systems 

Protection Board, 730 F. Supp. 779 (N.D. Ohio 1989). Removal must be 

imposed for an employee’s violation of 5 U.S.C. § 7323 or § 7324 unless the 

members of the Merit Systems Protection Board find “by unanimous vote” that a 

lesser penalty is warranted, and the respondent has the burden of showing why he 

should not be removed. Ware, 114 M.S.P.R. 128, ¶ 20; see 5 U.S.C. § 7326;

Special Counsel v. Briggs, 110 M.S.P.R. 1, ¶ 12 (2008), aff’d, 322 F. App’x 983 

(Fed. Cir. 2009). After analyzing the relevant factors, we have unanimously 

determined that forwarding one political e-mail, under the circumstances of this 

case, does not warrant removal. 

The nature of the offense and the extent of the employee’s participation

¶9 The respondent asserts that the administrative law judge erred in finding it 

to be an aggravating factor that some of the e-mail recipients were federal 
5

employees 2

 even though they were not his subordinates and he did not coerce 

them. Citing Special Counsel v. Morrill, 103 M.S.P.R. 143 (2006) (Table), he 

contends that, under similar circumstances, the Board has agreed that a lesser 

penalty than removal may be appropriate. He also asserts that the administrative 

law judge did not address his limited participation, specifically, that he circulated 

only one e-mail and that he was not active in the Obama campaign. He further 

asserts that the administrative law judge erred in finding that the violation itself 

was an aggravating factor in determining the penalty. PFR at 6-7. 

¶10 The Board considers any Hatch Act violation by a federal employee, on 

duty and in government offices, to be a serious matter. Thus, the administrative 

law judge properly found that the respondent’s violation was serious because 

some of the e-mail recipients were federal employees, he used his employing 

agency’s e-mail system, and he sent the e-mail while on duty from his agency 

office. ID at 5-6; see Ware, 114 M.S.P.R. 128, ¶ 22. In addition, the 

respondent’s citation to Morrill, 103 M.S.P.R. 143, does not support his argument 

because Morrill is a non-precedential final order. See Roche v. Department of 

Transportation, 110 M.S.P.R. 286, ¶ 13 (2008), aff’d, 596 F.3d 1375 (Fed. Cir. 

2010). 

¶11 Nonetheless, not all Hatch Act violations warrant removal, and, in that 

regard, this case is distinguishable from our recent decision in Ware, 114 

M.S.P.R. 128, in which we imposed the removal penalty. There, the Board 

ordered Ware’s removal for sending multiple partisan political e-mails from her 

government computer and e-mail account while on duty and occupying her 

government office. Ware, 114 M.S.P.R. 128, ¶¶ 4-8, 11, 38. We explained that 

Ware was a Contracting Officer Technical Representative (COTR) with the 

 

2

 The administrative law judge stated that the record did not appear to indicate the 

e-mail recipients’ employer. ID at 5 n.4. As the administrative law judge also found, 

however, the respondent admitted that some of the recipients were his co-workers. ID 

at 2; CF, Tab 17, Respondent’s Post-Hearing Brief at 5. 
6

Department of the Treasury’s Bureau of Engraving and Printing (BEP) for the 

staffing contract that BEP had with, inter alia, STG International (STG), which 

provided staff for BEP’s Health Unit. As the COTR, she ensured that the facility 

was properly staffed with STG employees; if any staffing problem existed, she 

asked STG to solve it; solutions could include, among other things, STG 

replacing employees; and she monitored, documented and evaluated the 

contractor’s overall performance. Id., ¶ 2. 

¶12 In discussing the nature of Ware’s offense and the extent of her 

participation, the Board found that her multiple Hatch Act violations were 

serious. We found that her offense included sending two e-mails that sought 

political contributions, one of which invited numerous people to a political 

fundraising dinner for Obama. Ware, 114 M.S.P.R. 128, ¶¶ 4-5, 22. We 

specifically found that Ware’s offense was more serious because she solicited 

political contributions from three contract employees over whom she had 

authority and influence. Id., ¶¶ 23-24. Indeed, we adopted the administrative law 

judge’s finding that Ware had violated 5 U.S.C. § 7323(a)(1), which prohibits 

using one’s official authority or influence for the purpose of interfering with or 

affecting the result of an election. Id., ¶¶ 8, 14, 18. We noted that, in Acconcia, 

107 M.S.P.R. 60, ¶¶ 4-5, 11, we similarly found removal appropriate where the 

employee solicited contributions from one subordinate employee. We further 

noted that we had also found that soliciting contributions from persons doing 

business with an agency is a serious violation of the Hatch Act because of the 

threat of coercion and the appearance that government contracts are awarded 

based on political patronage rather than competitive bidding. Ware, 114 

M.S.P.R. 128, ¶ 24; see Special Counsel v. Malone, 84 M.S.P.R. 342, ¶ 42 

(1999). 

¶13 Here, in contrast to Ware, the respondent forwarded only one e-mail. 

Significantly, he did not solicit subordinates or other individuals subject to his 
7

control or authority.3

 Moreover, the petitioner did not charge, nor is there any 

evidence, that the respondent was a political operative or otherwise actively 

engaged in political fundraising or other campaign activity apart from the one 

e-mail that he forwarded. Therefore, we find that, although the respondent’s 

offense was serious, this factor provides support for mitigation. 

The employee’s motive and intent

¶14 The respondent asserts that the administrative law judge erred in finding 

unpersuasive his explanation that his intent in forwarding the e-mail was simply 

to inform others how they could contribute, instead of to solicit contributions, 

and thus erred in finding intent to be an aggravating factor. He contends that the 

administrative law judge did not distinguish his situation from Special Counsel v. 

Collier, 101 M.S.P.R. 391 (2006), a case involving substantially more 

solicitations by a respondent far more politically active, which warranted only a 

suspension. He argues that here, as in Collier, he was unaware that he was 

violating the Hatch Act and expressed remorse and a determination to avoid 

further violations. PFR at 7-8. 

¶15 The respondent has not shown that the administrative law judge erred in 

considering this factor. As the administrative law judge found, in forwarding the 

e-mail, the respondent wrote: “if you want to help out the campaign!” and the 

e-mail included three links enabling on-line contributions. ID at 6; CF, Tab 1, 

Ex. 1. The respondent has thus shown no error in the administrative law judge’s 

rejection of his contention that his intent was only to inform, rather than to solicit 

contributions. See Ware, 114 M.S.P.R. 128, ¶ 25. Claims that he did not know 

that he was committing a violation do not support mitigation. See, e.g., Ware, 

 

3

 Although the petitioner charged the respondent in count 1 with violating 5 U.S.C. 

§ 7323(a)(1), it has not objected to the administrative law judge’s decision not to make 

a finding on count 1 and the record does not reflect that the respondent exercised any 

authority over the recipients of the e-mail. 
8

114 M.S.P.R. 128, ¶ 27; Purnell, 37 M.S.P.R. at 203-04. Further, the 

circumstances need not demonstrate that he acted knowingly in disregard of the 

law to warrant removal. Ware, 114 M.S.P.R. 128, ¶ 27; see Special Counsel v. 

Blackburne, 58 M.S.P.R. 279, 283-84 (1993). In addition, the respondent has not 

contested the administrative law judge’s finding that Collier did not solicit 

political contributions from federal employees. ID at 5. Moreover, as the 

administrative law judge also pointed out, 3 days after the respondent sent his 

e-mail, his manager sent an e-mail to a number of employees, including the 

respondent, reminding them that they were prohibited from soliciting political 

contributions or conducting partisan political activity while on duty or in the 

workplace, and inviting individuals who thought that they might have violated the 

Hatch Act to notify her. Id. at 9. The respondent did not come forward at that 

point. Further, we find that whether or not the respondent expressed remorse is 

insufficient to affect the penalty determination in this case. See, e.g., Ware, 114 

M.S.P.R. 128, ¶ 37. 

Whether the employee had received advice of counsel regarding the activities at 

issue

¶16 The respondent has not contested the administrative law judge’s findings 

that mitigation may be appropriate where an employee acted on advice of counsel 

in violating the Hatch Act and that nothing in the record showed that he acted on 

the advice of counsel in forwarding the e-mail. ID at 6-7. We find that, even if 

this is not an aggravating factor, it is not a mitigating factor. See Ware, 114 

M.S.P.R. 128, ¶ 29. 

Whether the employee ceased the activities 

¶17 The respondent asserts that the administrative law judge erred in finding, 

under Special Counsel v. Jakiela, 57 M.S.P.R. 228 (1993), that his ceasing his 

prohibited activity after being reminded that soliciting contributions while on 

duty was improper did not justify a lesser penalty. He also asserts that Jakiela

involved far more aggravating circumstances. PFR at 8. As in Jakiela, 57 
9

M.S.P.R. at 234, 4 the administrative law judge found that the respondent’s 

ceasing his prohibited activity was a mitigating, but not determinative factor. ID 

at 7. The administrative law judge’s finding is in accordance with the Board’s 

recognition that the cessation of the objectionable political activity, regardless of 

the reason for doing so, provides support for mitigation. See Ware, 114 M.S.P.R. 

128, ¶ 32; Acconcia, 107 M.S.P.R. 60, ¶ 8. 

The employee’s past employment record

¶18 The respondent has not addressed the administrative law judge’s finding 

that he had been a federal employee for only a little over 2 years when he 

violated the Hatch Act and, although not significant, he received a February 25, 

2009 admonishment for another offense. ID at 7. The Board has considered in 

Hatch Act cases the mitigating effect of a substantial period of service, lack of 

disciplinary record, and satisfactory performance record. See, e.g., Ware, 114 

M.S.P.R. 128, ¶ 33; Special Counsel v. Pierce, 85 M.S.P.R. 281, ¶¶ 2-5 (2000). 

Nonetheless, the Board has found that such a record is not determinative. See 

Ware, 114 M.S.P.R. 128, ¶ 33. Thus, we find that the respondent’s brief tenure 

and admonishment is not an aggravating factor. 

The political coloring of the employee’s activities

¶19 Again, the respondent has not addressed the administrative law judge’s 

finding that his forwarding an e-mail and soliciting contributions to support a 

partisan political candidate established the political coloring of his activity, and, 

therefore, that this factor did not support mitigation. ID at 7-8. The 

administrative law judge also recognized, however, that the respondent was not 

himself a candidate for partisan political office. Id. at 8. As discussed above, we 

find that the evidence did not show that the respondent was a political operative 

 

4

 Although this discussion is in the administrative law judge’s recommended decision, 

the Board explicitly incorporated the recommended decision into its own precedential 

decision. Jakiela, 57 M.S.P.R. at 230. 
10

or otherwise actively engaged in political fundraising or other campaign activity 

apart from the one e-mail that he forwarded, and that this provides some support 

for mitigation. 

Knowledge of the Hatch Act

¶20 The respondent asserts that the administrative law judge erred in finding 

that his knowledge of the Hatch Act’s proscription of his activity, as evidenced 

by various information he received, was an aggravating factor. He acknowledges 

that the pamphlet he received when he joined the IRS, Plain Talk About Ethics 

and Conduct, included some Hatch Act information. He contends, though, that 

the annual online ethics training’s Hatch Act information was only a link to the 

pamphlet and that employees were not required to research each of the links. He 

further contends that the reminder the IRS sent about restrictions on political 

activity 4 days before he forwarded his e-mail was a newsletter that provided 

only a link, and that he did not read the newsletter before he sent his e-mail. He 

notes that the administrative law judge did not mention his testimony that he 

asked what the Hatch Act was when contacted by the petitioner’s investigator, 

indicating his ignorance. He thus argues that he did not defy or disregard explicit 

warnings and that the mere availability of information did not support the 

administrative law judge’s conclusion that he violated the Hatch Act after being 

repeatedly informed of its proscriptions. PFR at 8-10. 

¶21 The respondent has not shown that the administrative law judge erred. The 

administrative law judge correctly found that the respondent admitted that he 

knew or should have known about the political activity restrictions of the Hatch 

Act; that when he started his employment, he was given information about the 

Hatch Act; that the annual ethics training he was required to complete included 

information on the Hatch Act; and that 4 days before he forwarded the e-mail, an 

agency electronic newsletter reminded employees about restrictions on their 

political activity and provided links to the petitioner’s Hatch Act page and a 

Hatch Act PowerPoint presentation. ID at 8-9; CF, Tabs 10, 15, Ex. 2. The 
11

administrative law judge thus correctly found that, whether the respondent 

actually knew about the Hatch Act’s restrictions or not, the knowledge was 

imputed to him and claims that he did not know that he was committing a 

violation did not support mitigation. ID at 8-9; see, e.g., Purnell, 37 M.S.P.R. at 

203-04. 

Other Hatch Act cases

¶22 The respondent asserts that the administrative law judge’s penalty 

determination contradicts the Board’s precedent, again citing Morrill, 103 

M.S.P.R. 143, and Collier, 101 M.S.P.R. 391. PFR at 10. He also asserts that in 

Special Counsel v. Wilkinson, 104 M.S.P.R. 253 (2006), a federal employee 

forwarded an e-mail to 31 other federal employees in his agency urging them to 

support a Democratic candidate and the petitioner settled the matter for a 30-day 

suspension. PFR at 11. We have addressed the respondent’s allegations 

concerning Morrill and Collier above. Further, the respondent has not shown that 

the Board should consider a decision in which the petitioner decided to settle the 

case. See Special Counsel v. Lee, 58 M.S.P.R. 81, 90 (1993). 

¶23 The respondent argues that the Board has traditionally reserved removal for 

more egregious cases. He cites Acconcia, 107 M.S.P.R. 60, in which the Board 

noted as an aggravating factor that Acconcia solicited a subordinate. He states 

that Acconcia was an attorney who was responsible for training others in the 

Hatch Act, knew her actions were outside the rules, and had both prior and 

subsequent discipline. He also cites Special Counsel v. Eisinger, 103 M.S.P.R. 

252 (2006), aff’d, 236 F. App’x 628 (Fed. Cir. 2007), stating that the Board found 

removal appropriate for Hatch Act violations by an attorney who had engaged in 

significant political activity over a 3-year period at work.5

 PFR at 11. 

 

5

 The appellant also cites Special Counsel v. Shafer, CB-1216-08-0008-T-1 (July 28, 

2008), to support his argument. PFR at 11-12. This is an initial decision with no 

precedential value. See, e.g., Roche, 110 M.S.P.R. 286, ¶ 13. 
12

¶24 As discussed above under factor 1, we have considered the respondent’s 

arguments that his violation, which consisted of forwarding one e-mail to 

individuals who were not under his control or authority, was not as egregious as 

those in cases in which the Board has ordered the respondents’ removals. We 

have agreed with him that, under the particular facts of this case, his violation did 

not warrant removal. As also previously discussed, however, we consider any

Hatch Act violation by a federal employee, on duty and in government offices, to 

be a serious matter. Thus, the Board has unanimously agreed to impose the 

significant penalty of a 120-day suspension for the respondent’s Hatch Act 

violation. 

ORDER

¶25 The Board ORDERS the Internal Revenue Service to suspend the 

respondent for 120 days. See 5 U.S.C. § 7326; 5 C.F.R. § 1201.126(c). The 

Board also ORDERS the petitioner to notify the Board within 30 days of the date 

of this Opinion and Order whether the respondent has been suspended as ordered. 

This is the final decision of the Merit Systems Protection Board in this appeal. 

Title 5 of the Code of Federal Regulations, section 1201.126(c) (5 C.F.R. 

§ 1201.126(c)). 

NOTICE TO THE RESPONDENT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request the United States Court of Appeals for the 

Federal Circuit to review this final decision. You must submit your request to the 

court at the following address: 

United States Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, DC 20439 

The court must receive your request for review no later than 60 calendar days 

after your receipt of this order. If you have a representative in this case and your 
13

representative receives this order before you do, then you must file with the court 

no later than 60 calendar days after receipt by your representative. If you choose 

to file, be very careful to file on time. The court has held that normally it does 

not have the authority to waive this statutory deadline and that filings that do not 

comply with the deadline must be dismissed. See Pinat v. Office of Personnel 

Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703). You may read 

this law, as well as review the Board’s regulations and other related material, at 

our website, http://www.mspb.gov. Additional information is available at the 

court's website, www.cafc.uscourts.gov. Of particular relevance is the court's 

"Guide for Pro Se Petitioners and Appellants," which is contained within the 

court's Rules of Practice, and Forms 5, 6, and 11. 

FOR THE BOARD: 

______________________________ 

William D. Spencer 

Clerk of the Board 

Washington, D.C.