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OSC Complaint Alleging Hatch Act Violation Was So Vague That Dismissal Was Proper, MSPB Rules

An Office of Special Counsel (OSC) complaint alleging a Hatch Act violation was so vague that dismissal was proper, the U.S. Merit Systems Protection Board ("the Board") ruled last week.

In this case, OSC filed a complaint with the Board in December 2009 alleging that a federal employee violated the Hatch Act by engaging in political activity while on duty and while in a government building through the use of a government-owned computer. OSC's complaint described the time of the alleged offenses as "throughout 2008" and stated that the alleged offenses involved emails and the drafting of documents "directed toward the success of Barack Obama's candidacy for President." At the close of discovery, the employee filed a motion to dismiss, alleging that the charging document was so vague and the discovery documents so voluminous and "undifferentiated" that the employee was left "to guess at the nature of the charges and the documents that were the factual basis for those charges." The MSPB administrative judge (AJ) agreed, holding that OSC had failed to place the employee "on notice that would enable him to draft responsive pleadings or prepare for trial." OSC filed a petition for review.

In last week's decision, the Board began by explaining that "the core of due process is the right to notice and a meaningful opportunity to be heard." Due process mandates that notice be "sufficiently detailed" to make the reply opportunity meaningful. To this end, Board regulations require that when OSC files a written complaint alleging a violation, the complaint must state "with particularity any alleged violations of law or regulation, along with the supporting facts."

Here, the Board stated, OSC's complaint lacked the necessary particularity and supporting facts. OSC did not identify the dates the e-mails were sent, the recipients, or the content, other than to state that they purportedly intended to aid the Obama campaign. The alleged documents drafted or edited by the employee were identified as "website materials and speech outlines," but not described with any specificity. Moreover, the Board said, OSC's complaint did not contain any attachments or copies of the documents to identify the specific e-mails or materials that constituted the basis for its charges. Similarly, the location where the offenses supposedly occurred was not described other than a statement that the employee engaged in the alleged conduct "while in a room or building occupied in the discharge of official duties."

Before the Board, OSC asserted that its complaint satisfied the Board's requirements for particularity. OSC claimed that the Board's regulations and case law do not require it to outline each specific instance of the employee's political activity. The Board, however, disagreed, stating, "OSC is mistaken; outlining each specification is precisely what OSC is required to do." The Board went on to say that the employee could not be expected to prepare a defense to each specification of a charge unless each specification is listed with sufficient identifying information to permit the employee to know what event is at issue in the case. While "it is true that OSC need not always describe every event down to the very minute," the Board added that "a poorly drafted, vague complaint ... serves no one" because it does not inform the employee about how OSC believes he has violated the law and does not inform a judge as to what must be adjudicated." The Board added that while it does not require OSC to attach all documents supporting its charges to the complaint, the AJ was correct in noting that such documents might have provided the specificity that was lacking in this case.

OSC also argued that the employee did not receive the complaint "in a vacuum" and that OSC had interviewed the employee twice prior to filing the complaint. OSC thus contended that the employee knew "full well" what the charges were. The Board, however, explained that OSC's investigative interviews do not constitute a charging document. Moreover, the Board noted that during its interviews, OSC presented the employee with hundreds of pages of documents, including a large number of e-mails. Thus, the Board determined that the volume of documents presented to the employee during the investigative process indicated that the interviews were not "sufficiently focused" to place him on notice of the precise allegations against him. In addition, OSC appeared to concede that during the interviews, it did not provide the employee with all of the e-mails it considered problematic. Accordingly, the Board held that the AJ correctly determined that OSC's complaint should be dismissed.

Finally, the Board ruled that while OSC is not permitted to amend the complaint, it could file a new one. "It is well-settled that double jeopardy does not apply to administrative proceedings, and that an agency can renew an adverse action based on charges brought in an earlier proceeding where the adverse action in that proceeding was invalidated on procedural grounds." Thus, the Board stated that OSC's new complaint would be assigned to an AJ for adjudication as a new case.

The case is Special Counsel v. Smith, 2011 MSPB 69, July 12, 2011.

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