Another civil servant began a 120-day suspension without pay from the Food and Drug Administration in July after creating a Facebook page with his name and photograph to solicit political donations and then co-hosting a fundraiser.
These were some of the recent consequences for federal workers who illegally mixed government employment with partisan politics in violation of the Hatch Act, the anti-corruption law Congress passed in 1939.
The New Deal-era law applies, on paper at least, to civil servants and political appointees alike. But the top Trump administration officials showcased in prime-time appearances and speaking slots at the Republican National Convention this week serve as a reminder that when it comes to flouting the separation between governing and politicking, there appears to be a two-tiered system of consequences.
Watchdog groups complained that acting homeland security secretary Chad Wolf and Secretary of State Mike Pompeo violated the Hatch Act this week when Wolf led a taped naturalization ceremony for newly minted citizens on White House grounds and Pompeo gave a speech from Israel.
“Convention events were planned and executed by the Trump Campaign and RNC,” White House spokesman Judd Deere said in a statement. “Any government employees who participated did so in their personal capacities and in compliance with the Hatch Act.”
The complaints could be taken up by the Office of Special Counsel, a small, independent agency that issued 134 letters to federal employees warning them of improper behavior during the first three years of the Trump administration, according to an agency report to Congress. An additional 46 federal workers were disciplined, and 31 more were told to withdraw from political races or leave government to pursue them.
The office says it does not track how many political appointees it has warned or disciplined for political activity on the job. But Special Counsel Henry Kerner, who was appointed by President Trump, has cited at least nine high-level Trump appointees for abusing their government roles to further the president’s reelection or disparage his rivals.
And they have largely thumbed their noses at the law — with the president’s blessing.
Career employees, meanwhile, have faced warning letters, reprimands, suspensions without pay and, in extreme cases, been fired and debarred from returning to government.
“There’s a system of impunity” with Trump appointees, said Nick Schwellenbach, a senior investigator at the nonprofit Project on Government Oversight who was communications director for the Office of Special Counsel in the Obama administration.
Brushing off violations and potential ones “sends the wrong message to everyone in the federal workforce,” Schwellenbach said, “by concealing the cynicism that higher-ups don’t have to follow the rules.”
Kerner’s office investigates complaints, then negotiates potential discipline with the employee and the worker’s agency. In the case of an impasse, the office will appeal to the Merit Systems Protection Board, which rules on federal personnel disputes. The president and vice president are not covered by the law.
The most prominent culprit in the Trump era has been Kellyanne Conway, who is leaving her job as White House counselor this week. Kerner found last year that Conway was a repeat offender who disparaged Democratic presidential candidates while speaking in her official capacity in television interviews and on social media. He recommended firing her.
Discipline for Conway and others was up to Trump, according to Office of Special Counsel’s interpretation of the law. The president took no action in her case or that of several other high-level appointees, including Dan Scavino, the White House director of social media. Scavino violated the law in 2017, Kerner found, when he tweeted a call for the defeat of Rep. Justin Amash of Michigan, a then-Republican and a frequent Trump critic.
“Blah blah blah,” Conway said last year. “Let me know when the jail sentence starts.”
Jobs and pay at stake
For the average civil servant, though, the Hatch Act has real teeth. Employees can lose jobs and pay. For them, the law cannot be scornfully dismissed — as White House Chief of Staff Mark Meadows did this week when he said that “nobody outside of the Beltway really cares” about the Hatch Act.
Gregory Davis, a federal police officer with the Bureau of Engraving and Printing, said he watched the Republican proceedings on television this week in disbelief.
Davis has his own troubles. Last August he sent an email from his work computer on work time to fellow officers in the police union that listed the platforms of the Democratic presidential candidates, including promises to support the federal workforce. They criticized Trump for not supporting federal workers.
Davis, a longtime union shop steward, warned the officers that they should not count on the overtime they were used to.
Someone complained to Davis’s boss and to the Office of Special Counsel, which 11 months later dispatched a lawyer to investigate. Davis’s supervisors reprimanded him even before the investigation was done. On Friday, an Office of Special Counsel attorney held a 30-minute phone interview with Davis and his attorney.
Davis called his case “a one-time event.” The scrutiny “makes me feel like I committed a felony,” he said.
“I’m not in a position of power to have protection around me like the Trump people,” said Davis, 62, describing a double-standard he called a “manifestation of privilege versus no privilege.” The union is covering his legal fees.
Ron Demicheli’s mistake was a few slips of the tongue during an interview with the local AFL-CIO in Pittsburgh, where the retired contracting administrator worked for the national Energy Department laboratory that researches clean-energy production and use.
The union had named him labor leader of the week, and someone came to shoot a video interview. It was 2008, and Sens. John McCain (R-Ariz.) and Barack Obama (D-Ill.) were vying for the presidency. Demicheli, 73, said he would focus only on policy. “But I slipped a couple of times,” he recalled, commenting that McCain was not friendly to federal employees.
The video landed on Facebook and circulated widely. Two years went by. The special counsel called. “They came after me like gangbusters,” Demicheli recalled. “The questions felt like I had murdered someone.”
He retired in 2010. A year later, he got a letter giving him a warning not to violate the Hatch Act again.
Steep legal fees
It is common for Hatch Act investigations to take months or even years, since the chronically underfunded Office of Special Counsel does not have the resources to quickly handle the volume of complaints, which hit 281 in fiscal 2019 alone. Investigators look for evidence and interview witnesses like a prosecution, although violations are almost all civil. Some employees pay steep legal fees to defend themselves.
Experts say civil servants make up the majority of violators in any administration, since their numbers are so large: 2.1 million across the government compared with a few thousand appointees.
The Obama administration was not immune from violating the law, although fewer appointees were accused of violating it.
Then-Health and Human Services Secretary Kathleen Sebelius apologized in 2012 for partisan remarks she made to a gay rights group in North Carolina in which she promoted President Obama’s reelection. Julián Castro, then-secretary of housing and urban development, endorsed Hillary Clinton for president in 2016 in an interview in his official capacity. Both were explicit violations, and both officials were reprimanded. The White House barred the Cabinet from speaking at the Democratic National Convention to avoid similar mishaps.
“It was clearly something the president took seriously,” Sebelius said in an interview. She was told to write a check to the treasury to reimburse the government for her expenses, she said. The White House then notified the Office of Special Counsel, which investigated.
“Do I like that it happened? No,” she said. “Do I understand it? Yes.”
After criticism of Wolf’s convention appearance, the Department of Homeland Security sent its 240,000 employees an email Thursday reminding them not to engage in “partisan political activity.”
To some agency employees, the scrutiny can feel retaliatory.
Michael Knowles, 65, an asylum officer at U.S. Citizenship and Immigration Services, was already on his bosses’ radar last year after he denounced the Trump administration’s refugee asylum policies to Congress. The union local he leads, Local 1924 of the American Federation of Government Employees, asked a federal court to end the policies.
Then in March he emailed his members some words at the office about a beloved former manager who died of brain cancer. The catch: Knowles included an op-ed the man had written for the Baltimore Sun that criticized Trump’s policies.
Within a few days, he got a call from a lawyer at the Office of Special Counsel. The lawyer asked questions. Knowles said he is waiting for a resolution.
“The point is that we are held to an extremely high standard of ‘Thou shalt not cross this line,’ ” Knowles said, “and the Trump people are not.”