Sebelius violated Hatch Act and may be fired, Obama administration lawyers find

Matthew Boyle Investigative Reporter
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President Barack Obama’s Health and Human Services Secretary Kathleen Sebelius violated the Hatch Act, the U.S. Office of Special Counsel said Wednesday.

Sebelius violated the law, the office said, when she publicly endorsed President Barack Obama’s re-election during a taxpayer-funded public event on Feb. 25, 2012.

Special Counsel Carolyn Lerner wrote to Obama that the OSC found Sebelius “violated the Hatch Act by making extemporaneous political remarks in a speech delivered in her official capacity” on Feb. 25.

“The Hatch Act prohibits federal employees from using their official authority or influence to affect the outcome of an election,” Lerner wrote to the president. “A federal employee is permitted to make partisan remarks when speaking in their personal capacity, but not when using an official title or when speaking about agency business.”

“Secretary Sebelius and the Department of Health and Human Services reimbursed the U.S. government for all costs and expenses associated with her travel to the February 25, 2012, event,” Lerner continued. “HHS subsequently reclassified the trip from official to political and issued a statement to that effect. OSC found no evidence that Secretary Sebelius made any other political statements in her official capacity.”

The Federal Times suggests that Sebelius may be fired for her illegal activity. “The finding could possibly cost Sebelius her job,” the outlet reported. “Although OSC did not recommend any specific punishment, and said Obama will decide how to punish her, Hatch Act violators are usually fired.”

Dan Epstein, the executive director of good-government group Cause of Action, told The Daily Caller that since Sebelius is a Senate-confirmed presidential appointee, she isn’t entitled to a review from the Merit Systems Protection Board — one that that could reduce her penalty if she were a career staffer.

“Sebelius doesn’t get MSPB Review so there’s no ability for the MSPB to lower the penalty to a suspension and the Board isn’t entitled to review,” Epstein said. “If Sebelius wasn’t a cabinet member or a PAS (Presidentially Appointed and Senate Confirmed) OSC would proceed by filing a complaint with the MSPB.”

“Thus the point is that by Close of Business on September 12, 2012, the President has been informed of a Hatch Act violation and yet has decided not to fire Sebelius,” Epstein added. “The President has therefore decided to overlook the improper political activities of his appointees when in their official capacities. He has effectively said it is okay to politicize the executive branch.”

It’s unclear what punishment Sebelius will face, as Obama technically has to decide. But, when federal employees violate the Hatch Act — according to law firm Tully Rinckey PLLC — the standard punishment is termination.

“Hatch Act violators are typically fired; however, only an unanimous vote [by] the Merit Systems Protection Board can reduce the penalty to unpaid suspension,” Tully Rinckey PLLC partner John P. Mahoney told The Daily Caller, “[a]lthough the parties can agree to settle for less severe penalties.”

But since in Sebelius’ case she isn’t allowed to have that MSPB board intervene, her future is in Obama’s hands.

Epstein is calling on Obama to fire Sebelius right away.

“This is the most high profile example of a Hatch Act violation since the Act was passed in 1939,” Epstein said. “Never before has a member of the President’s Cabinet been found to have committed a Hatch Act violation. President Obama should immediately fire HHS Secretary Sebelius for her violation of federal law. Additionally, the Justice Department should begin an investigation into any potential election crimes the Secretary may have committed through her then-taxpayer funded comments on February 25, 2012.”

A spokesperson for Utah Republican Sen. Orrin Hatch — the ranking member of the Senate Finance Committee, which has jurisdiction over HHS — expressed outrage at Sebelius’ behavior. “That the Secretary violated federal law in this manner is disturbing, but hardly a surprise,” Hatch spokesperson Antonia Ferrier said in an email.

“Since almost day one, this Administration has had a singular focus on politicking — not governing — that’s borne out by the Secretary ignoring a strict prohibition on electioneering while working for federal taxpayers.”

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This story was updated after publication to include information about Sebelius’ ineligibility for a guaranteed review from from the Merit Systems Protection Board.