News from the Whitehouse: On December 28, 2012, President Obama signed into law amendments to the Hatch Act. The Hatch Act Modernization Act of 2012, S.2170, makes several changes to the Hatch Act which affect its disciplinary provisions and the scope of employees covered by the Hatch Act. According to Senate Report 112-211, these amendments were supported by Special Counsel Carolyn Lerner.
The most significant change to the Hatch Act in S.2170 is that it expands the range of penalties for Hatch Act violations by federal employees, including lessening their severity. Currently, if the MSPB finds a Hatch Act violation, it must remove the offender unless the MSPB unanimously votes not to terminate, in which case the only alternate penalty available is an unpaid suspension of 30 days or more. S.2170 expands the MSPB’s disciplinary options to include lesser penalties such as demotion, suspensions less than 30 days and reprimands. However, S.2170 also allows the MSPB to impose more severe penalties in addition to removal, including 5 year debarment from federal employment and a $1000 fine-penalties similar to those which can currently be imposed against offenders committing Prohibited Personnel Practices. Senate Report 112-211 states that the MSPB should consider aggravating and mitigating factors similar to the MSPB’s non-Hatch Act cases, indicating Congress’ intent that the MSPB’s Douglas factors apply to Hatch Act cases.
Another provision of S.2170 reduces the Hatch Act coverage of state and local government employees. Special Counsel Lerner had requested that this provision be repealed entirely, but Congress instead limited coverage to state and local government employees whose salary is completely paid by federal funds.
Finally, S.2170 makes several changes relevant to Hatch Act coverage in the D.C. area. First, S.2170 moves District employees into the less restrictive rules for state and local government employees (most District employees had been previously treated as federal employees). Second, S.2170 allows federal employees to assist in partisan election campaigns for the D.C. government. Under current statute, federal employees may participate in partisan campaigns in certain state and local jurisdictions near D.C. or where most voters are federal employees–but not in the District itself (an artifact of pre-Home Rule days).
The Hatch Act amendments go into effect January 27, 2013, although the modifications to the penalties which can be imposed against federal employees apply to offenses predating S.2170 if those charges are not yet settled or are not currently being prosecuted by OSC.
If you are a federal, state or local employee charged with a possible violation of the Hatch Act, and wish to discuss your rights, please contact the attorneys of Passman & Kaplan, P.C. to request an initial consultation.