Should the Office of Special Counsel have more Hatch Act enforcement power?

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Recently the Office of Special Counsel revealed that several members of the Trump administration violated the Hatch Act. It happens in every administration, if not to that extent. The law prevents political activity by appointed and career federal employees while on the job. Bob Tobias, a professor in the Key Executive Leadership program at American University, says...

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Best listening experience is on Chrome, Firefox or Safari. Subscribe to Federal Drive’s daily audio interviews on Apple Podcasts or PodcastOne.

Recently the Office of Special Counsel revealed that several members of the Trump administration violated the Hatch Act. It happens in every administration, if not to that extent. The law prevents political activity by appointed and career federal employees while on the job. Bob Tobias, a professor in the Key Executive Leadership program at American University, says the Office of Special Counsel should have greater statutory authority to go after Hatch Act violators. He spoke to the  Federal Drive with Tom Temin.

Interview transcript: 

Tom Temin: Recently, the Office of Special Counsel revealed that several members of the Trump administration had violated the Hatch Act. It happens in every administration but maybe not to that extent. The law prevents political activity by appointed and career federal employees while on the job. Our next guest says the Office of Special Counsel should have greater statutory authority to go after Hatch Act violators. Bob Tobias is professor in the Key Executive Leadership Program at American University. And he joins me now. And Bob, it’s safe to say that Hatch Act violations really get to the heart of what can go wrong or or harm civil service, doesn’t it?

Bob Tobias: It does. I mean, the Hatch Act, which was, you know, enacted in 1939, forbids federal employees from quote, “interfering with an election or affecting the result,” close quote. And as you indicated, the Office of Special Counsel found two former departmental secretaries and 11 other high level political appointees from the Trump administration to have violated the Hatch Act. However, they didn’t suffer any penalty.

Tom Temin: That amounts to almost wholesale violation with that many people in a given administration. I mean, there’s always one or two each time around, but it seems more systemic that time.

Bob Tobias: Well, yes. And if they were not Senate confirmed, or high level political appointees, the Office of Special Counsel could have administered penalties up to an including discharge. But with respect to Senate confirmed and high level political appointees. The Office of Special Counsel is prohibited from taking action and has to refer the cases to the sitting president. And although former President Trump had more people in his administration who committed Hatch Act violations than any prior administration, no action was taken by the president against any of those who violated the Hatch Act. But President Trump is in very good company. The fact is no prior president has ever taken action against a person in his administration who violated the Hatch Act.

Tom Temin: Yeah. So we often see reports from the Office of Special Counsel detailing what happened to regular federal career employees when they violated the Hatch Act. They pay fines, they have suspensions, and in some cases are let go. And so we know what’s possible for them. But for the political ones, then they kind of get off with just the embarrassment of having it revealed.

Bob Tobias: Yeah, they get to escape. And if you look at the congressional goal of the Hatch Act when it was enacted, it was to prevent the creation, quote, of a powerful, invincible and perhaps corrupt political machine within the federal government who might interfere or affect the result of an election. Now, I think, Tom, we can say pretty clearly that this goal is no less important today than it was in 1939.

Tom Temin: Well, in some ways, maybe it’s more important, because I don’t know how polarized things were back in 1939. Probably pretty bad. I mean, Roosevelt did engender strong reactions on both sides. But I think it’s safe to say that since the Civil War, the country’s never been more divided politically than it is right now.

Bob Tobias: Yeah, I think that’s right. And departmental secretaries and high level political appointees have the greatest power to create a political machine within the federal government. And I don’t believe they should be able to violate the law with impunity.

Tom Temin: We’re speaking with Bob Tobias. He is a professor at the Key Executive Leadership Program at American University. And there are things that perhaps federal career managers can do, maybe advise politicals, “hey, you know, not a great idea.” In fact, I knew a political appointee in the Bush administration who wanted to do some campaign work. So he used vacation time, and got out of dodge and did it on his personal time, which I believe is allowed. But he had heard from some people there that no, you can’t do this kind of thing while you’re on the job.

Bob Tobias: Well, you have to want to comply with the Hatch Act, then you ask questions or you listen to what people have to say. There was a quote in the report about Mark Meadows, who was the White House chief of staff, who said that the Hatch Act is really only important to people inside the beltway. And I think that that is wrong. I think it’s dead wrong. And the special counsel needs to be able to enforce actions against hash check violators.

Tom Temin: Yes, because all employees but certainly, most visibly, the cabinet level employees do take an oath to protect and defend the Constitution of the United States. They don’t take an oath to protect and defend the candidacy of the person that appointed them.

Bob Tobias: You know, I think that’s really right on the mark, Tom, and often overlooked. All federal employees take the same oath of office. All should be treated in the same manner, when they violate the Hatch Act. Some shouldn’t be able to get off because they’re Senate confirmed or high level political appointees.

Tom Temin: Alright. So then the law does not provide for that. So that would be then Congress’s job to change that?

Bob Tobias: It would, and I really believe that Congress ought amend the Hatch Act to enable the Office of Special Counsel to initiate action against any federal employee who violates the Hatch Act, including Senate confirmed and high level political appointees,

Tom Temin: And there probably would not be a constitutional issue there because the Office of Special Counsel exists within the executive branch.

Bob Tobias: Absolutely.

Tom Temin: And Bob, just to switch gears while we have you, the President’s management agenda came out days ago, or what they call the vision for the management agenda. And it’s less detailed in some ways than earlier management agendas, which went after information technology and very arcane parts of what the government should be doing. This was a much broader brush picture. What’s your assessment of it?

Bob Tobias: Well, I think that in order to really measure performance, the plan needs to be more specific. I think that members of the public really want to know how well government performs. And the only way that that can happen is if performance is measured and it’s put on a website, and people can see it, and people can comment on it. But in order to make that happen, it has to be sufficiently specific to be measured.

Tom Temin: And the other issue is it does do a lot of good in terms of elevating the federal job situation — that is, federal job should be good jobs, federal employees should be supported in every way possible, so they can be enabled to do great jobs. And nobody could disagree with that. The prior administration put a lot of emphasis on accountability of individuals, making it easier, they hope to, they only partially succeeded in being able to fire people more quickly. And this latest PMA from the Biden administration makes no mention of that. Somehow that seems to call for some balance, I think. You don’t want to have it a totally negative management agenda saying how we want to get rid of the fast ones, and that’s our agenda. But on the other hand, you don’t want to say let’s elevate everybody, but yet leave out the accountability part. Seems like there should be a middle ground there.

Bob Tobias: Well, I think, if indeed agencies are held to improving performance, that concomitantly they’re going to be holding people accountable for their individual performance that contributes to the overall goal. So I think it’s there. But it has to be more clearly articulated.

Tom Temin: Because it does reference the engagement scores of government and the perception of government by the public, which tend to lag the private sector. And one of the issues that comes up in the engagement scores every year is that federal employees don’t feel like the poor performers are dealt with sufficiently.

Bob Tobias: Well, that’s correct. And I think that needs to be attended to. I don’t think it’s right to say, well, others don’t know who we’re focused on and so forth. But people know when others are held accountable. And it has to be attended to. And it has to be attended to at every single level. If I’m a supervisor, and I’m not accurately evaluating you and just passing you on, I too am not being held accountable. So this accountability issue is something that goes from the top to the bottom.

Tom Temin: Alright, Bob Tobias is a professor in the Key Executive Leadership Program at American University. As always, good to have you on.

Bob Tobias: Thank you very much Tom.

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