MSPB Mitigates Penalty for Hatch Act Violation

In Special Counsel v. DeWitt, 2010 MSPB 59 (March 30, 2010), the Merit Systems Protection Board (MSPB or Board) mitigated the penalty of a federal employee whose removal had been sought for a Hatch Act violation. The Hatch Act, 5 USC § 7323(a)(3), prohibits a federal employee from running for office as a partisan candidate. The Special Counsel initially sought DeWitt’s removal in a hearing before the MSPB.

The stipulated facts were that DeWitt ran for township clerk in Michigan as a Democratic party candidate in both the primary and general elections, and was elected. Strong facts to mitigate the penalty were that although DeWitt ran as a partisan candidate, she was the only candidate running, she ran a “passive” campaign, and once she was notified by the Special Counsel that she was being investigated for possible Hatch Act violations, she resigned from elective office. Additionally, DeWitt had an unblemished 10-year record as a federal employee.

Based on a settlement of the parties, the administrative law judge who heard the case issued a recommended decision that DeWitt be suspended for 30 days rather than be removed. If an administrative law judge believes a removal should be mitigated, the judge must issue a recommended decision to the full three-member Board. The Board agreed unanimously that the facts in the case warranted a mitigation of the removal down to a 30-day suspension. Noting that in other cases the Board had refused to mitigate the removal where the only mitigating factor was the employee’s unblemished record, it would appear that the determinative factor in this case was that DeWitt resigned from political office upon being informed of the possible Hatch Act violation.

As this is an election year, any federal employees who are considering running for public office would be well-advised to consult with the Office of Special Counsel, their agency’s ethics officer or an experienced federal-sector attorney before becoming a candidate for office.