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

Written by FEDmanager on . Posted in Case Law Update

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.

YGL Profiles

An Interview with Melanie Keller, Assoc. Director for Management, Center for Drug Evaluation & Research (CDER)

Melanie Keller is the Associate Director for Management at the Center for Drug Evaluation & Research (CDER), the largest Center at the Food and Drug Administration (FDA) within the U.S. Department of Health and Human Services (HHS). She serves as the Center’s Executive Officer and oversees all administrative operations. Ms. Keller is responsible for budget formulation, user fee collection, and execution of a $1 billion annual budget. She also leads and directs the Center’s human capital management of more than 4,500 employees, and is currently leading recruitment strategies for 795 vacancies within the Center. 


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Senators Explore Oversight of Small Agencies, Drafting New IG Bill

Senators last week discussed oversight of small agencies, commissions, and boards with a hearing before the Senate’s Financial and Contracting Oversight subcommittee.

Challenges of small agency oversight was discussed at the hearing, as were potential legislative actions to improve the oversight of such organizations.  

Chairwoman of the subcommittee, Sen. Claire McCaskill (D-MO) said at the hearing that there are at least 40 small agencies with over $1 billion in budgetary authority with “virtually no oversight.”


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MSPB Grants Veteran’s Request for Corrective Action after DoD Rejected Job Application

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Tell Us: Why Do You Heart Public Service

GEICO’s Good Stuff is a column series highlighting great stuff happening in the federal community.

The Public Employees Roundtable (PER) is collecting testimonials from government employees and members of the public in support of an I “Heart” Public Service whiteboard photo campaign. Images will be posted on the PER on Facebook and Instagram pages.

The group behind Public Service Recognition Week (PSRW), which takes place this year from May 4-10, launched the whiteboard campaign in support of this year’s theme: Proud to Serve.

Government employees and members of the public are invited to fill out their own whiteboard and share why they love public service and tag their photos with #PSRW and #Proud2ServeUSA.