By Daniel Pulliam
Sending politically partisan e-mails to a handful of co-workers using agency computer systems is not a violation of the 1939 Hatch Act, a Merit Systems Protection Board administrative law judge ruled earlier this month.
The ruling stymies an attempt by the Office of Special Counsel, the agency with jurisdiction over Hatch Act enforcement, to have two federal employees dismissed for breaking the law, which prohibits federal workers from engaging in political activity while working.
Because the e-mails sent by the employees were limited to a small group of people and should be considered an expression of personal opinion, MSPB Administrative Law Judge Arthur J. Amchan dismissed the case in an initial decision dated April 14.
OSC plans to appeal the decision to the full MSPB.
Thecomplaints against Michael Davis and Leslye Sims, employees in the Social Security Administration's regional office in Kansas City, Mo., were filed Jan.14 for e-mails sent the morning of Oct. 25, 2004.
Davis sent his e-mail to 27 of his SSA co-workers. It featured a photo of President Bush in front of an American flag with the statement, "I vote the Bible." Statements in the message supported Bush and included negative statements about then-Democratic presidential candidate John Kerry. The e-mail urged readers to "pass along the 'I vote the Bible' button."
Sims' message, sent to 22 people, stated, "Why I am supporting John Kerry for president?" It included a letter purporting to have been written by John Eisenhower, the son of President Eisenhower. He wrote that people should support Kerry and not the Republican Party.
Amchan's decision argues that the e-mails amount to "water-cooler" talk and that the complaint should be dismissed on the sole basis that federal employees are allowed to express opinions on political issues.
Acknowledging ambiguity between the law's provisions allowing employees to express opinions and prohibitions against government workplace political activity, Amchan wrote that when faced with vagueness in the law, the decision should go in favor of the person who would be punished.
In a statement Tuesday, OSC said that the employees' actions were analogous to using government resources to engage in "political leafleting," which is prohibited by 1993 amendments to the Hatch Act. "By now, most federal employees should be well aware of their responsibility not to advocate for a specific political candidate while on duty and using their government e-mail account."
Special Counsel Scott Bloch said in the statement that OSC will file a petition for review and request that MSPB reverse the initial decision. "It is important that federal employees comply with their duties to refrain from using their offices and government computers to advocate for votes for their preferred candidates, while on the job," Bloch said.
Special Counsel v. Leslye Sims and Michael Davis, Merit Systems Protection Board Administrative Law Judge,CB-1216-05-0013-T-1; CB-1216-05-0012-T-1, April 14, 2005.
A rule that prevents federal air marshals from speaking publicly about their jobs is being challenged by the American Civil Liberties Union.
The lawsuit, on behalf of Air Marshal Frank Terreri, was filed in U.S. District Court in the Central District of California and seeks to make parts of the Federal Air Marshal Service rules unconstitutional on First Amendment grounds.
Terreri was taken off active flight duty and placed on administrative duty after he sent an e-mail to another air marshal regarding concerns about a profile of an air marshal in People magazine. Terreri also sent two letters to the agency's director regarding security lapses.
"The Department of Homeland Security is not only infringing on Frank Terreri's right to free expression, they are actually jeopardizing the public's safety by limiting the speech of whistleblowers," said Peter Eliasberg, managing attorney of the ACLU of Southern California. "Terreri is prohibited from participating in informative debate about the safety of our airline industry, which makes all of us less secure."
Dave Adams, Federal Air Marshal Service spokesman, said he could not comment on pending litigation.
Terreri, a 15-year law enforcement veteran serving his third year as a federal air marshal, is serving a second term as the president of the Federal Law Enforcement Officers Association, a professional organization that represents more than 23,000 federal agents, including 1,400 air marshals.
The defendants named in the lawsuit include: Michael Chertoff, secretary of the Department of Homeland Security; Randy Beardsworth, the acting undersecretary for Border Transportation and Security; Michael J. Garcia, the assistant secretary of the Department of Homeland Security for Immigration and Customs Enforcement; and Thomas Quinn, the director of the Federal Air Marshal Service.
Frank Terreri v. Michael Chertoff, Randy Beardsworth, Michael J. Garcia and Thomas D. Quinn, U.S. District Court Central District of California - Eastern Division, Complaint for Injunctive and Declaratory Relief, April 21, 2005.