The Independent View: Federal Watchdog Recommends Conway Removed from Office for Hatch Act Violations

The Office of Special Counsel (OSC) on Thursday urged President Trump to Remove Kellyanne Conway as White House Counselor over Repeated Violations of the Hatch Act, which Bars Federal Employees from Engaging in Political Campaigns in their Official Capacity.

“The U.S. Office of Special Counsel (OSC) calls on President Donald J. Trump to remove Ms. Conway from her federal position immediately," the Agency wrote in a Letter to the White House.

For example, the OSC determined in March 2018 that Conway had Violated the Hatch Act with Two separate Interviews related to the Alabama Senate Special Election in 2017. The report cited interviews Conway gave in her Official Capacity to "Fox & Friends" on Fox News and "New Day" on CNN in which she described then Candidate Doug Jones as "weak on crime" and a likely vote against Trump-backed tax cuts. Jones went on to defeat Roy Moore.

The OSC referred its Findings to President Trump "for appropriate disciplinary action." However, the White House maintained at the time Conway had done nothing Wrong, saying she did Not Explicitly tell Viewers which Candidate to Vote for.

In response to an assertion by Conway that she was Misquoted in the March 2018 Report Outlining her Violation, an OSC Spokesman said in a Statement that the Agency "stands by its findings."

Under the Hatch Act, enacted in 1939, Federal Employees are Barred from making Partisan Comments that could Sway an Election or Advocating for Political Candidates while using their Official Designations.

Civil Penalties for Violations can include Fines or Dismissal.

Formal Complaints to the OSC about Potential Hatch Act Violations Increased nearly 30% during Trump's First year in Office.

Removal from Office, is the Final Penalty Authorized for Violation of the Hatch Act, under 5 U.S.C.S. § 1505. The Merit System Protection Board (MSPB) has Jurisdiction under § 1505 to determine after a Hearing whether the Violation Warrants the Removal of the Officer or Employee from their Office or Employment.

The Board considers whether Removal is Appropriate on the Basis of Seriousness of the Violation. The Board takes into Account All Relevant Mitigating and Aggravating Factors, including:

(1) The Nature of the Offense and the Extent of the Employee’s Participation.

(2) The Employee’s Motive and Intent.

(3) Whether the Employee received the Advice of Counsel regarding the Activities at Issue.

(4) Whether the Employee Ceased the Activities at Issue.

(5) The Employee’s Past Employment Record.

(6) The Political Coloring of the Employee’s Activities.

The Decision as to whether Removal is Warranted is a matter of Administrative Discretion. Thus, a Reviewing Court will Not Reverse the Board’s Decision unless it Concludes that the Decision constituted an Abuse of Discretion or was Not in Accordance with the Law or was Unsupported by Substantial Evidence or was Obtained Without Procedures required by Law, Rule, or Regulation.

With Federal Employees, 5 U.S.C.S. § 7326 provides that an Individual who Violates the Hatch Act, shall be Removed from their Position, and the Funds Appropriated for the Position from which Removed may Not thereafter be used to Pay the Employee or Individual. However, if the Board finds by Unanimous Vote that the Violation does Not Warrant Removal, a Penalty of No fewer than 30 days’ Suspension Without Pay shall be Imposed by Direction of the Board, for each incident.