E-mail puts employees in jeopardy

Board reviews dismissal sought by special counsel under Hatch Act

The Merit Systems Protection Board (MSPB) is reviewing a case that could determine whether federal employees can lose their jobs for forwarding political e-mail messages to friends and colleagues while they are at work. The case against two Social Security Administration employees for violating the Hatch Act could end up in federal court.

Federal employee unions and First Amendment lawyers who are following the case say no court has interpreted the act in the context in which the two employees are charged with violating it.

The act prohibits government employees from engaging in political activity at work. But some legal experts say the regulations and advisory opinions interpreting the 1939 law need updating. When the law was amended in 1993, lawmakers didn't envision federal employees using e-mail, BlackBerries and other electronic messaging technologies.

"To the extent that we're going to take a view that this kind of casual e-mail communication among colleagues -- forwarding messages to each other -- is a violation of the Hatch Act, a lot of employees are going to be imperiled," said Elaine Kaplan, deputy general counsel for the National Treasury Employees Union, which represents about 150,000 federal employees. In August, the union filed a brief in support of the two employees charged with violating the act.

The Office of Special Counsel, which enforces the act, brought complaints against the two employees in January. Their cases were assigned to an administrative law judge at MSPB, who dismissed both complaints in April. The special counsel appealed that decision by asking for a full board review of the case.

Some legal experts say the issues in the case are complex because employees use electronic messaging technologies interchangeably for personal conversations and official business.

"You can't neatly compartmentalize them in your life," said Lee Tien, a senior staff attorney at the nonprofit Electronic Frontier Foundation who specializes in free speech law.

In the case under review, arguments have centered on whether forwarding a political e-mail message is similar to political leafleting or whether it more closely resembles a conversation. "For anybody who sits at a computer all day in an office, e-mail is a substitute for talking to people," Kaplan said.

A past federal appeals court ruling held that political leafleting at work violates the Hatch Act. However, Arthur Amchan, the administrative law judge in the current case, argued that the employees' use of e-mail was akin to having a political conversation at work. Political conversations do not violate the act, he wrote in his order to dismiss the complaints.

The case now under review involves e-mail messages forwarded Oct. 25, 2004, at SSA's Kansas City regional office, a week before the 2004 presidential election. Michael Davis, a 23-year-old employee in the Teleservice Center, forwarded a pro-President Bush e-mail message that contained the slogan, "I vote the Bible." Leslye Sims, an employee in the Office of Hearings and Appeals, forwarded a pro-Sen. John Kerry message with the subject line: "FW: Fwd: Fw: Why I am supporting John Kerry for President."

Case documents do not clearly indicate whether the employees had received adequate prior notice or been given a first warning that forwarding such e-mail messages violated the Hatch Act and could cost them their jobs.

Tien said it would be timely to conduct notice-and-comment rulemaking on the act in the context of the case under review.

Kaplan said the Office of Personnel Management has had opportunities to issue a rule but has not done so. OPM officials could not be reached for comment.

Interpreting the Hatch Act

In April, an administrative law judge for the Merit Systems Protection Board dismissed cases against two federal employees who had forwarded political e-mail messages at work.

The judge decided that such behavior:

  • Is permitted by the Hatch Act because it is not expressly prohibited.
  • Cannot reasonably be deemed political activity within the act's meaning.
  • Occurred without the employees having received notice that their conduct could be deemed political activity within the act's meaning.

Source: Merit Systems Protection Board


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