We previously discussed the violation of federal rules by White House counselor Kellyanne Conway in the endorsement of a commercial product. Now an even more serious allegation has been raised in a complaint filed by Walter Shaub, the former director of the Office of Government Ethics. Shaub charges that Conway violated the ban on federal employees using their positions for political purposes and the allegation is not without merit. Conway has possible defenses but the statements on Fox against the election of Alabama Democratic Senate candidate Dough Jones used poor judgment. When reviewed in the context of past cases, the complaint raises credible claims. For full disclosure, Conway is one of my former students at George Washington University Law School (she graduated in 1995).
It is hard to watch Conway’s appearance on Fox and Friends and not conclude that she is interjecting herself into the political campaign on the side of Roy Moore — or at least against Democrat Doug Jones.
The hosts respond to the obvious pitch with the question: “so vote Roy Moore?” Conway does not answer but continue to object to those considering Jones while emphasizing the need for Moore’s election as a Republican vote.
Here is how the Special Counsel site answers a question on expressing political opinions as a federal employee:
May federal employees express their views about current events, policy issues, and matters of public interest at work or on duty?
Generally, all federal employees may discuss current events, policy issues, and matters of public interest at work or on duty. The Hatch Act does not prohibit employees at any time, including when they are at work or on duty, from expressing their personal opinions about events, issues, or matters, such as healthcare reform, gun control, abortion, immigration, federal hiring freeze, etc. For example, while at work employees may express their views about healthcare reform, e.g., “I agree with healthcare reform.”
However, the Hatch Act prohibits federal employees at work or on duty from engaging in political activity. Political activity is activity that is directed at the success or failure of a political party, partisan political group, or candidate for partisan political office. Thus, employees may not express their personal opinions on such events, issues, and matters if such views also are political activity. For example, while at work employees may not express their views about healthcare reform tied to a candidate for partisan political office, e.g., “If you disagree with healthcare reform you should support candidate X.”
Finally, even when federal employees are expressing personal opinions that are permissible under the Hatch Act they should be mindful of how such views may be received by their coworkers and whether such comments are consistent with the Hatch Act’s underlying purpose of maintaining a politically neutral workplace.
Of course, Conway was not just speaking “at work or on duty” but on a national television interview concerning a political race in Alabama — and whether people should vote for one candidate. Conway is clearly trying to influence the election when she states “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.” In denouncing Jones a s a “doctrinaire liberal” in front of the White House, Conway emphasizes that “I’m telling you that we want the votes in the Senate to get this tax bill through,” Conway said, calling Jones a “doctrinaire liberal.”
Formally entitled an Act to Prevent Pernicious Political Activities, the Hatch Act passed in 1939 “prohibits federal employees from using their official authority or influence to affect the outcome of an election.”
Conway could insist that she was addressing the status of the President’s agenda in Congress, particularly the upcoming tax vote. She is allowed to comment on the political status of the Senate and the impact of such changes.
Shaub complaint under 5 U.S.C. § 7323(a)(1) relies on the prior case involving former Secretary of Housing and Urban Development Julian Castro in the Obama Administration. Castro was found to have violated the Hatch Act. Notably, unlike Conway, Castro stressed that he was speaking as an individual and not a public figure when he was asked about the presidential election by Yahoo News anchor Katie Couric, even though he stressed that he was answering her political questions in his personal capacity:
“Now, taking off my HUD hat for a second and just speaking individually, it is very clear that Hillary Clinton is the most experienced, thoughtful, and prepared candidate for President that we have this year.”
“What I am interested in, though, is trying to do a great job here at HUD and serving the people that we do serve, folks that are of modest means but who deserve our attention and our efforts. And so I don’t believe that is going to happen, but I am supportive of Secretary Clinton and I believe she is going to make a great president.”
“OSC concluded that Secretary Castro violated the Hatch Act by advocating for and against Presidential candidates. Secretary Castro’s statements during the interview impermissibly mixed his personal political views with official agency business despite his efforts to clarify that some answers were being given in his personal capacity.”
Similarly, in 2012, OSC found then-Health and Human Services Secretary Kathleen Sebelius violated the law when she gave a speech to a gay rights organization that included an aside comment favoring Obama’s re-election.
Under 5 U.S.C.S. § 1505, the Merit System Protection Board (MSPB) has plenary jurisdiction to order the removal of an official for a violation. However, it may consider the nature of the offense; the official’s motive and intent; and other elements.
It is unlikely that such a removal would occur in this case, but the controversy is another embarrassment for the Trump White House and specifically White House Counsel Don McGahn.