Two government employees did not violate restrictions against partisan politics in the federal workplace last fall when they sent politically charged e-mails to more than 20 of their colleagues, an administrative law judge ruled this month.
The April 14 ruling by Judge Arthur J. Amchan of the Merit Systems Protection Board dismissed attempts by the Office of Special Counsel to have the two Social Security Administration workers fired for violating the Hatch Act, which limits political activity by employees in federal offices and on government time.
Special Counsel Scott J. Bloch said yesterday the independent agency will appeal the decision to the full MSPB.
According to Amchan's decision, one of the workers on Oct. 25 used a government computer to send 22 people an e-mail titled, "Why I am Supporting John Kerry for President." It contained a letter, purportedly written by the son of former Republican president Dwight D. Eisenhower, touting Democrat John F. Kerry for president.
The other worker, a recipient of the first e-mail, then forwarded to 27 people an e-mail that urged people to vote for "the party that stands firm on morally and ethically correct issues as written in the [B]ible." The e-mail also contained a picture of President Bush in front of an American flag and the statement "I Vote the Bible."
Bloch, whose agency enforces the Hatch Act, argued that the e-mails amounted to workplace political activity that is prohibited by federal law.
"[T]he transmission of an electronic message in these cases is comparable to the posting of a partisan sign or poster, or leafleting, and is certainly no different from, or less egregious than, wearing a political button," Bloch and OSC lawyers wrote in a filing in the case. ". . . The E-mails at issue here do not merely express an opinion but specifically and unequivocally advocate for a particular candidate in the presidential election."
But Amchan ruled that the e-mails amounted to the electronic equivalent of a discussion of politics around the office water cooler, something that is legal.
"In some circumstances, a federal employee using his or her computer in a government office may violate the Hatch Act by engaging in 'political activity,' " Amchan wrote in his 16-page opinion. "However, an expression of personal opinion does not constitute political activity merely because it is disseminated to two dozen individuals with one or several computer keystrokes."
The Hatch Act, which dates to 1939, is supposed to keep politics out of the federal workplace and ensure that taxpayer-supported resources are not misused in the service of partisan campaigns.
Under the act, federal employees cannot engage in political activity while on duty, use their official authority to influence an election, solicit money for a partisan candidate or run as a candidate for partisan office. They may, however, run in nonpartisan elections, vote, express opinions about candidates and, on their own time, contribute money and campaign for or against a candidate.
Colleen M. Kelley, president of the National Treasury Employees Union, said Amchan's ruling strikes a "fair balance" between employees' free speech rights and the goal of preventing the politicization of federal workplaces.
She criticized Bloch for seeking to fire the employees, pointing to part of the ruling in which Amchan writes that the Office of Special Counsel typically has sought terminations only in Hatch Act cases in which employees ignored warnings about their conduct.
"What we see Bloch doing on so many things is kind of extreme rather than doing things with a balance and considering all the factors," Kelley said in an interview.
During the election last year, federal employee unions criticized Bloch for not doing enough to punish Hatch Act violators.
Bloch said in a statement yesterday that "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. We will be filing a petition for review of this initial decision and request the MSPB to reverse it."
