Tag: Office of Special Counsel

A new warning to federal employees: No talk of ‘Resistance’ or opinions about impeachment at work

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The federal government has issued a new guidance for the political activity of federal government workers, warning that weighing in on impeachment or talking about “the Resistance” may constitute prohibited activity, in what some ethics advocates say could be an opening to limit dissent.

The Office of Special Counsel is charged with enforcing the Hatch Act, which prohibits federal employees from engaging in political activity in the course of their work. The office, not to be confused with special counsel Robert Mueller III’s investigation, is run by Henry Kerner, whom President Donald Trump nominated to the post.

The unsigned “Guidance Regarding Political Activity,” which was issued on Tuesday, takes the form of a question and answer and seeks to clarify the types of actions and rhetoric considered political activity and therefore prohibited at work.

In a nod to the current climate, it stipulated that advocating for or against impeachment of a candidate for federal office would be considered political because of its implications for future elections and that any use of terms like “resistance” and “#resist” would be construed as political activity.

But some government watchdogs said they feared the guidelines could have wide-ranging effects on the nearly 3 million federal government employees in the United States, as well as other state and local employees who work with federally funded programs. The ethics nonprofit American Oversight said the guidance raised “significant concerns” in a letter it sent to the office on Thursday, urging it to withdraw the memo.

“OSC’s position on impeachment advocacy or opinions goes too far,” the group’s executive director, Austin Evers, wrote in the letter, adding that “certainly there is a difference between advocating that an official should (or should not) be elected and advocating that an official did (or did not) commit treason or high crimes and misdemeanors under the Constitution.”

In particular, Evers expressed concern that the guidelines could constrain whistleblowers.

“As OSC knows well, it is critically important to ensure public employees are comfortable raising concerns about waste, fraud, or abuse in the government,” he wrote. “Impeachment is primarily a remedy for severe misconduct. If public employees are aware of conduct that could be impeachable but fear civil or criminal liability under the Hatch Act for saying so, they may be reluctant to approach OSA, inspectors general, or Congress.”

Nick Schwellenbach, the director of investigations at the Project on Government Oversight and an employee of the OSC from 2014 to 2017, said he felt the guidance likely crossed a legal line, saying the Hatch Act was meant to be narrowly focused on political activities around parties and candidates.

“The way OSC has traditionally balanced its enforcement of that statute with the First Amendment is [focused on] supporting a candidate or political party for election. I think once you start talking about more general political views, you’re starting to infringe upon people’s rights,” he said. “This one, I think, goes too far for them. It runs the risk of turning the OSC into an Orwellian enforcer inside the federal workforce.”

Schwellenbach said he believed the guidance could be successfully challenged in court on its constitutionality.

Evers also worried that the restrictions could be used to hem in employees abilities to weigh in on policy discussions.

“If resistance terminology can become inherently ‘political activity,’ so too could statements like ‘Build the Wall’ or ‘Protect our Care,’ which reflect policy positions that nonetheless are tied to the president’s campaign positions,” he wrote. “In addition, conflating resistance terminology with electoral advocacy opens the door to public employees being retaliated against for their policy positions or opinions. … If using resistance terminology is categorically barred under OSC’s Hatch Act interpretation, it could create new, insidious tools for appointees to target public employees.”

The Office of Special Counsel did not return an immediate request for comment.

[Chicago Tribune]

Kellyanne Conway found to have violated Hatch Act

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White House counselor Kellyanne Conway violated the Hatch Act on two occasions, the Office of Special Counsel (OSC) informed the Trump administration Tuesday.

Appearing in her official capacity, Conway endorsed and advocated against political candidates, the watchdog said, referring its findings to President Trump “for appropriate disciplinary action.”

The violations occurred during two television appearances in 2017, one on Fox News’s “Fox & Friends,” and one on CNN’s “New Day.”

“While the Hatch Act allows federal employees to express their views about candidates and political issues as private citizens, it restricts employees from using their official government positions for partisan political purposes, including by trying to influence partisan elections,” OSC says in its report.

“Ms. Conway’s statements during the ‘Fox & Friends’ and ‘New Day’ interviews impermissibly mixed official government business with political views about candidates in the Alabama special election for U.S. Senate.”

The report goes on to state that Conway received “significant training” on the Hatch Act and possible violations. OSC says it gave Conway, a former GOP pollster who served as Trump’s campaign manager, the opportunity to respond as part of its report, but she did not.

The White House rejected the report’s findings, saying “Conway did not advocate for or against the election of any particular candidate” in a statement provided to reporters.

“In fact, Kellyanne’s statements actually show her intention and desire to comply with the Hatch Act — as she twice declined to respond to the host’s specific invitation to encourage Alabamans to vote for the Republican,” deputy press secretary Hogan Gildley said.

Ahead of December’s special election to replace Attorney General Jeff Sessions in the Senate, Conway made remarks critical of then-candidate Doug Jones in his race against former Alabama Supreme Court Chief Justice Roy Moore.

During her initial Fox appearance, Conway blasted Jones as “weak on crime” and “weak on borders,” before declining to specifically endorse Moore when asked.

“Doug Jones in Alabama, folks, don’t be fooled. He will be a vote against tax cuts. He is weak on crime, weak on borders. He is strong on raising your taxes. He is terrible for property owners,” Conway said in November.

“So, vote Roy Moore?” host Brian Kilmeade interjected.

“I’m telling you that we want the votes in the Senate to get this tax bill through,” Conway responded.

In her CNN appearance in December, Conway went further, saying that Trump “doesn’t want a liberal Democrat representing Alabama” in the Senate.

“The only endorsement that matters in this race is President Trump’s,” Conway said the week before the vote. “And he came out questioning the ideology and the vote of Doug Jones. He’ll be a reliable vote for tax hikes. He’ll be a reliable vote against border security. He’ll be a reliable vote against national security and keeping [Islamic State in Iraq and Syria] ISIS in retreat. He’ll be the reliable vote against the Second Amendment and against life.”

At the time, former Office of Government Ethics Director Walter Shaub called the comments a “slam dunk” violation of the Hatch Act.

“The willfulness of Conway’s violation and her openly expressed disdain for efforts to hold her accountable for complying with ethics requirements make clear that anything less than removal from the federal service or a lengthy unpaid suspension will not deter future misconduct on her part,” Shaub said.

Shaub filed two complaints with OSC over the interviews.

White House deputy press secretary Raj Shah defended Conway last year after initial criticism.

“Ms. Conway did not advocate for or against the election of a candidate, and specifically declined to encourage Alabamans to vote a certain way,” Shah said in a statement.

“She was speaking about issues and her support for the president’s agenda. This election is for the people of Alabama to decide,” he added.

House Oversight and Government Reform Committee ranking Democrat Elijah Cummings (Md.) demanded the president issue “swift and serious” punishment for the violations.

“The President must take swift and serious disciplinary action against Ms. Conway. Anything else sets a terrible example,” Cummings said in a statement.

Hatch Act violations committed by White House staff are typically handled directly by the president. Consequences for violating the law range from an official reprimand to a civil penalty of up to $1,000. Other penalties include suspension, termination or even debarment from federal employment for up to five years.

[The Hill]

Update

The White House said on Tuesday that counselor Kellyanne Conway did not violate the Hatch Act after the Office of Special Counsel (OSC) told the Trump administration she was found in violation.

“Kellyanne Conway did not advocate for or against the election of any particular candidate. She simply expressed the president’s obvious position that he have people in the House and Senate, who support his agenda,” deputy White House press secretary Hogan Gidley said in a statement.