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Special Counsel official discusses the Hatch Act

By Lisa Rein
Washington Post Staff Writer
Thursday, October 21, 2010; 1:37 AM

The Office of Special Counsel, an investigative agency primarily responsible for looking out for whistleblowers, also prosecutes the Hatch Act, a law prohibiting federal workers from engaging in certain political activity. With the midterm elections just a few weeks away, the OSC is reminding civil servants to observe the law.

Ana Galindo-Marrone, 46, has been chief of the agency's Hatch Act unit since 2000. She's a graduate of the University of Miami Law School and lives in Arlington County. She discussed her staff's work with The Washington Post.

Q: How many government lawyers are involved in prosecuting the Hatch Act?

A: Back when I started this work in 1999, it was just me. Now we're up to 12 attorneys. We all come with different backgrounds. I was a school board attorney in Miami before coming here. Some people I hire right out of law school. We just made an offer to a public defender. We have an attorney right out of the JAG corps.

Q: How many cases do you prosecute every year?

A: We enforce this law nationwide, against state and local employees as well as federal ones who violated it. In fiscal 2009, we prosecuted 10 cases. Currently, I'm looking at five or six cases on my desk that have just been approved for prosecution - on top of 10 we already filed this year. The number is growing. In 2008 there were three cases, in 2007 just one. Half our time is dedicated to our advisory function. We've issued 4,320 advisory opinions this year.

Q. What's an advisory opinion as it pertains to the Hatch Act?

A: A state or local employee typically asks, "Am I covered by the law?" The question for them is if their principal employment is in connection with a federally financed activity. An example would be the director of a housing authority or a chief of police or a social service director. An opponent of a state or local employee running for public office also could seek an opinion. With federal advisory requests, the question is typically, Can I send this e-mail at work? They are more questions about actions the employee wants to take.

Q: What political activities can be done when an employee is off duty, and does this line get blurred with BlackBerries and teleworking?

A: Let's say I support a particular candidate. I can, off duty, send out an e-mail to my friends saying here's a link to their campaign page. But in terms of restrictions: You can't engage in political activity on duty in a federal room or office building while using a government vehicle. I don't think everyone saw the advent of almost everything being on e-mail. When employees take government equipment home- we have to look at whether the political activity was done on duty at home. The law doesn't say you can't use government equipment like a BlackBerry, but you can't do it on duty or in the federal workplace. We would have to establish that the person was on duty.

Q: How do you and your staff hear about possible violations of the law?

A: An agency may hear from an employee on the receiving end of a political e-mail and we get a referral. The problem with e-mail is you never know where it's going to end up. You send an e-mail to 20 friends, they send it to their friends. Someone gets it and says, "What is a federal employee doing on government time sending campaign mail?" Technology has facilitated the activity - and the referrals.

Q: What about colleagues who discuss the presidential election over lunch in the agency cafeteria?

A: That's the hardest question to answer. The law says we retain a right to retain our opinions, but we can't engage in political activity on duty. Clearly if you're just talking with a close friend about the events of the day, a debate, say, that is probably not going to constitute political activity. But if I decide I'm going to convert a colleague to supporting my candidate - that's political activity.

Q: Do most employees willfully violate the law?

A: Many employees, when we investigate the violation, will say they were passing on the campaign e-mail which has now gotten them in trouble, and that they didn't know it was political.

Q: What's a typical penalty if someone is found to have violated the law?

A: Firing or suspension. . . . A suspension means anything more than 30 days.

Q: Do you sympathize with people who work in a political town where the line between government and politics is often blurred?

A: At the end of the day, what the Hatch Act is intended to do is make sure our advancement in the federal service is based on merit and not political affiliations, and that our provision of services to the public is not done in a partisan way.

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