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Washington, D.C.—The National Treasury Employees Union (NTEU) has asked the Merit Systems Protection Board (MSPB) to uphold the April decision of an administrative law judge dismissing complaints brought against two federal employees by the Office of Special Counsel (OSC). The two employees were charged with violations of the Hatch Act, which deals with political activity by federal employees.

OSC is seeking the removal from federal service of two employees of the Social Security Administration who sent e-mails with political content from their government computers to a relatively small group of relatives and co-workers who were personal friends. OSC argues that the use of government e-mail to send messages supporting or opposing political candidates or parties is always impermissible “political activity” in the workplace or on duty.

In an amicus brief filed with the MSPB, NTEU said that adoption of OSC’s interpretation of the Hatch Act would have “sweeping impact government-wide.” The union’s brief to the MSPB criticizes OSC for advancing the view that any e-mail from a government computer that “advocates” for a particular political candidate violates the Hatch Act, regardless of the audience. It points out that the Hatch Act, by its very terms, protects the expression of personal opinion. This exchange of e-mails within a small group of co-workers who were personal friends is the equivalent to a conversation in the workplace, NTEU argues.

NTEU President Colleen M. Kelley said that in the federal workplace, “when casual e-mail at the worksite often replaces personal conversations and telephone calls, this restriction on ‘virtual’ speech would extend the Hatch Act’s prohibitions well beyond their purposes: to prevent the actual or apparent politicization of the federal workforce.” It would also raise serious First Amendment questions.

NTEU has a long history of fighting for federal employee political and First Amendment rights. More than a decade ago, NTEU’s efforts were instrumental in major reform of the Hatch Act to broaden political rights of federal workers.

The administrative law judge, who had initially dismissed the complaints, disagreed with OSC’s claim that the e-mails violated the Hatch Act. He noted that while the Hatch Act prohibits on-duty “political activity,” it expressly protects the rights of federal employees to express their personal opinions on political subjects at any time—whether on-duty or off.

He relied in part on a 2002 advisory opinion issued by OSC that made a distinction between e-mails to a small group of friends, which would be permissible virtual ‘water-cooler’ discussions of political matters, and mass e-mails to a wide group of federal employees with whom the sender had no existing relationship. Those mass-emails would be akin to electronic leafleting and prohibited on government property or while employees were on duty. As the judge pointed out, OSC’s prosecution of the two employees is irreconcilable with that advisory opinion.

President Kelley said that NTEU retains its “strong commitment to fighting for the free speech rights of all federal workers.” NTEU, she said, “will not silently sit by while the current leadership of OSC undermines those rights by reading the restrictions of the Hatch Act in an over-broad fashion.”

NTEU is the largest independent federal union, representing some 150,000 employees in 30 agencies and departments.