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Washington, D.C.—The leader of the nation’s largest independent union of federal workers today welcomed a recent decision by an administrative law judge of the Merit Systems Protection Board (MSPB) dismissing complaints against two federal employees for alleged violations of the Hatch Act, which governs political activity by federal workers.

NTEU President Colleen M. Kelley described the judge’s opinion as “thoughtful” and said “it strikes a fair balance between the Hatch Act’s goals of preventing the politicization of the federal workforce and its recognition that federal employees maintain their rights to express their own personal opinion on political matters, both publicly and privately, and to participate in the political life of the nation.”

In a decision affecting two consolidated cases stemming from the 2004 presidential election, the MSPB judge ruled that U.S. Special Counsel Scott Bloch had overreached in seeking the removal of the two federal workers because they each allegedly sent one electronic mail message from their office computers last October expressing their personal views about the candidates. Bloch, who heads up the U.S. Office of Special Counsel (OSC), claimed the e-mails violated the Hatch Act.

The MSPB judge, however, ruled 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.

In part, he looked to a 2002 advisory opinion issued by OSC on the subject of e-mail which made a distinction between permissible virtual ‘water-cooler’ discussions of political matters and prohibited electronic leafleting.

The judge wrote: “In some circumstances, a federal employee using his or her computer in a government office may violate the Hatch Act by engaging in ‘political activity.’ However, an expression of personal opinion does not constitute political activity merely because it is disseminated to two dozen individuals with one or several computer keystrokes.”

One of the defendants had forwarded an e-mail message to 22 people; the other forwarded a message to 27 people.

More than a decade ago, NTEU played the leading role in winning congressional reform of the Hatch Act to provide broader political rights for federal workers. NTEU has been critical of Bloch for pursuing the termination of federal employees for committing dubious technical violations of the Hatch Act, which in practice has the effect of discouraging employees from engaging in political activity the Hatch Act clearly permits.

The NTEU leader noted pointedly that the judge’s decision faults Bloch’s action in seeking to end the federal employment of these workers as an abuse of prosecutorial discretion and as inconsistent with OSC’s past practices when they had no knowledge, either actual or constructive, that they might have been violating the Hatch Act when they sent the e-mails in question. One e-mail supported Democratic nominee Sen. John F. Kerry; the other supported President Bush.

The judge said that in every Hatch Act case that he previously had handled involving the potential termination of employment, the employee in question had personally been warned that his or her specific conduct—such as running for partisan political office—violated the Hatch Act, and the employee chose to ignore the warning.

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