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Senior White House aide Kellyanne Conway avoided getting fired for “egregious and ongoing” violations of the Hatch Act in large part because a little-known oversight agency was unable to weigh in — and will likely remain so if additional White House aides are found to have followed Conway’s example.
The agency in question, the Merit Systems Protection Board, is no favorite of the Trump administration, which has pledged to wage war on the “deep state” civil service. Critics have argued that the MSPB, a three-person panel that adjudicates contested disciplinary actions against federal employees, makes it too difficult to fire a government worker by imposing elaborate due process procedures intended to bar whistleblower retaliation and other management abuses.
But in fact, the MSPB rules against government employees about 90 percent of the time, according to John W. York, a policy analyst with the conservative Heritage Foundation. Given the extensive and highly public evidence against Conway, there’s a good chance even a Republican-controlled MSPB would have ruled against her.
Conway was spared that fate because the MSPB didn’t have enough sitting members to issue any rulings; since March it hasn’t had any. Instead, Conway’s case was referred to the White House.
That never should have happened, say attorneys at the nonprofit Citizens for Responsibility and Ethics in Washington and a former MSPB executive director under former President Barack Obama. Putting the decision in the president’s hands, they say, sets a dangerous precedent that may shield other Trump White House advisers from enforcement of the Hatch Act, the 1939 law that prohibits government employees from engaging in political speech while performing official duties.
Conway was the tenth Trump administration official to be ruled in violation of the Hatch Act (though the first for whom the recommended punishment was dismissal). The others include then-United Nations Ambassador Nikki Haley, White House social media director Dan Scavino and Deputy Press Secretary Raj Shah. One Trump official who could soon benefit from the MSPB’s mothballed state is Ivanka Trump, who has also been flagged for alleged Hatch Act violations by CREW.
The Office of Special Counsel, an investigative arm of the MSPB, recommended to President Donald Trump in June that he fire Conway for her “egregious, notorious, and ongoing” violations.
“If Ms. Conway were any other federal employee,” wrote Special Counsel Henry Kerner, “her multiple violations of the law would almost certainly result in removal from her federal position by the Merit Systems Protection Board.” If Conway’s violations were “left unpunished,” Kerner warned, that would “send a message to all federal employees that they need not abide by the Hatch Act’s restrictions.”
Unsurprisingly, Trump declined to fire Conway, telling Fox News that “It looks to me like they’re trying to take away her right of free speech.”
But legal experts question whether Trump will be permitted to dispense with future Hatch Act violations in similar fashion.
“When you take a step back,” said Liz Hempowicz, director of public policy at the Project on Government Oversight, “there’s a subset of the federal workforce that is very high up that is kind of untouchable when it comes to accountability.”
In response to the president’s inaction, House and Senate Democrats introduced a bill that would, among other things, require the president to issue a public response within 30 days of receiving an OSC referral concerning a Hatch Act violation. That bill has been sent to the relevant committees, but is unlikely to get very far in the Republican-controlled Senate.
Under most circumstances, the Civil Service Reform Act, the 1978 law that created the OSC and the MSPB, directed OSC to refer Hatch Act violations to the MSPB. But the law made an exception for employees “in a confidential, policy-making, policy- determining, or policy-advocating position appointed by the president.” These cases, it said, would be referred to the White House.
But the statute limited this exempted group to those who were appointed “by and with the advice and consent of the Senate,” who enjoyed special protection under a 1926 Supreme Court decision.
"The carveout in the statute seems pretty clear, and refers explicitly to presidential appointees who were confirmed with the advice and consent of the Senate,” said Donald Sherman, deputy director of Citizens for Responsibility and Ethics in Washington, an advocacy organization that has filed several Hatch Act complaints to the OSC regarding Conway. “Ms. Conway is not a Senate-confirmed appointee.” Nor are most presidentially-appointed White House aides.
Before Conway, the OSC had referred Hatch Act recommendations against political appointees only three times in its four-decade history, twice under Obama and once under President George W. Bush. All three referrals were made to the White House because they concerned political appointees who’d been confirmed by the Senate. (Only one of the three, Bush General Services Administration chief Lurita Doan, was asked to resign; Obama Health and Human Services Secretary Kathleen Sebelius and Housing and Urban Development Secretary Julian Castro were let off with a warning.)
Conway’s referral was different from these cases because she was not Senate-confirmed, a circumstance the OSC had never before encountered. The language in the Civil Service Reform Act directed her case to the MSPB, but OSC forwarded its recommendation to the White House instead, in large part, an OSC official told POLITICO, because there was no MSPB to refer it to.
Since March, the MSPB has had no members, a first at the MSPB. Before that, the MSPB went more than two years without the necessary two-person quorum. The agency has been unable to render decisions for the entirety of Trump’s presidency.
Granted, the MSPB’s administrative law judges can still make rulings. If the OSC had referred Conway’s case to the MSPB, an administrative judge would have ruled on her case. But if that judge had ruled against her, Conway almost certainly would have appealed to the full board, leaving her case in limbo for the foreseeable future. Even assuming, optimistically, that the board will resume operations in the coming months, its new team will face a 2,000-case backlog.
The gradual attrition of the MSPB from three board members to none predates the Trump administration. By law, a president must balance two MSPB appointments from his own party with one from the opposite party. But these appointments must be confirmed by the Senate, and when two Democratic board members ended their seven-year terms in March 2015 and January 2017, the Republican Senate was in no hurry to replace them. When Trump entered the White House, the MSPB was down to one Republican member, Mark Robbins.
Trump’s election changed the partisan calculus, but the White House waited more than a year to nominate a Democrat and two Republicans to fill the board and replace Robbins. One Republican nominee, Andrew Maunz, encountered opposition on the Senate Homeland Security and Governmental Affairs Committee, and eventually withdrew in February. The committee has since cleared all three nominations for the board; Democrat, Julia Clark, Republican, Dennis Kirk to serve as chairman, and Republican, B. Chad Bungard.
All three nominees now await confirmation by the full Senate.
The MSPB’s lack of a quorum wasn’t the only reason the OSC referred Conway’s case to the White House. Another consideration was an opinion by the Justice Department’s Office of Legal Counsel dated May 1978, five months before the law creating the OSC and the MSPB was signed into law.
Working off an early version of the Civil Service Reform bill, the OLC concluded that the White House should receive Hatch Act complaints concerning all political appointees, whether confirmed by the Senate or not.
The OLC based its conclusion on a 1926 Supreme Court decision, Myers v. United States, that said that the president wasn’t required to seek permission from Congress to fire a Senate-confirmed political appointee. By implication, the OLC ruled, the president also couldn’t be directed by Congress (or an agency like the MSPB created by Congress) to fire a so-called “inferior officer,” i.e., a political appointee who wasn’t confirmed by the Senate.
Myers v. United States was written by William Howard Taft, who a decade after losing his re-election bid for president became chief justice of the Supreme Court. Taft’s language in the decision about whether Congress (or the MSPB) could compel removal of an inferior officer like Conway was less than clear. “It might be difficult to avoid a negative answer,” Taft wrote, “but it is not before us and we do not decide it.”
In writing the final language of the 1978 law, Congress ignored the OLC’s reading of Myers v. United States and limited to Senate-confirmed appointees the exemption referring Hatch Act violators to the White House.
James Eisenmann, who was appointed executive director of the Merit Systems Protection Board under President Barack Obama, says the OLC’s 1978 opinion is “obsolete.” The OLC reached one conclusion, he told POLITICO, but “Congress disagreed. And so it looks to me the OSC just chose to disregard the plain language of the statute. ... I think they owe the public a better explanation.”
In the meantime, the White House is demanding that OSC withdraw its recommendation concerning Conway, arguing it was “deeply flawed” and violated Conway’s due process rights.
"Others, of all political views, have objected to the OSC’s unclear and unevenly applied rules which have a chilling effect on free speech for all federal employees,” White House spokesperson Steve Groves said. OSC, Groves said, under the influence of “media pressure and liberal organizations,” is trying to “weaponize the Hatch Act.”
Conway meanwhile, last month defied a congressional subpoena, refusing to testify about the matter before the House Oversight and Reform Committee, prompting House Democrats to threaten to hold her in contempt of Congress.
“The independent Office of Special Counsel found that Kellyanne Conway violated the law dozens of times and recommended that President Trump remove her from office,” House Oversight Chairman Elijah Cummings said in a written statement. “It sends the wrong message to federal employees when Ms. Conway refuses to change her behavior and faces no consequences.”