White House: Sebelius unlikely to be punished for violating Hatch Act

Matthew Boyle Investigative Reporter
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The Obama White House appears to be offering special treatment to Health and Human Services Secretary Kathleen Sebelius in the wake of the news Wednesday afternoon that President Barack Obama’s cabinet official violated the Hatch Act — activity that is illegal and normally results in the offender’s termination from government employment.

“These were extemporaneous remarks. … The U.S. Treasury has been reimbursed, and Secretary Sebelius has met with ethics experts to ensure this never happens again,” White House spokesman Eric Schultz told The Associated Press in response to the news that Sebelius violated the Hatch Act.

The U.S. Office of Special Counsel (OSC) said Wednesday that Sebelius violated the law 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.”

Dan Epstein, the executive director of government watchdog 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 (MSPB) — 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 [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 Sept. 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 OK to politicize the executive branch.”

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

“Hatch Act violators are typically fired; however, only a unanimous vote [by] the Merit Systems Protection Board can reduce the penalty to unpaid suspension,” Tully Rinckey PLLC partner John P. Mahoney told TheDC, “[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. And, because Obama hasn’t fired her yet, he’s affording Sebelius special treatment that an ordinary government employee who violated the Hatch Act wouldn’t get.

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