TR Daily OSC Finds O’Rielly Violated Hatch Act, Issues Warning
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Wednesday, May 2, 2018

OSC Finds O’Rielly Violated Hatch Act, Issues Warning

The U.S. Office of Special Counsel (OSC) has found that FCC Commissioner Mike O’Rielly violated the Hatch Act’s restrictions on political activities by federal executive branch employees with remarks he made at the Conservative Political Action Conference (CPAC) in February, which the OSC held constituted advocacy for the reelection of President Trump.

The OSC issued a warning to Commissioner O’Rielly and advised future violations of the Hatch Act could lead to further action; however, with respect to Senate-confirmed employees such as FCC Commissioners, further action is limited to referring the complaint to the president “for appropriate action.”

When asked during a panel discussion at the CPAC event what could be done to avoid “regulatory ping pong” on FCC positions when party control of the agency flips with presidential administrations, Commissioner O’Rielly had said, “What we can do is make sure as conservatives that we elect good people to both the House and Senate and make sure that President Trump gets elected.” He added that “here’s another thing you can do. We’re going to have a fight over the Obama Internet rules in the next couple of months in the U.S. Senate. And that’s going to matter and that vote matters, and so making sure that people take the right course on that really does affect what policies we’re able to … replace going forward. So we certainly could use everyone’s help along those lines” (TR Daily, Feb. 23).

In letters dated yesterday to two government watchdog groups that had filed complaints alleging that the comments about congressional and presidential elections constituted Hatch Act violations, Erica Hamrick, deputy chief of the OSC’s Hatch Act Unit, said, “Despite his words, Commissioner O’Rielly explained to OSC that he was not advocating President Trump’s reelection but was attempting to answer the question asked, which he understood to be about preventing the next Administration from reversing the FCC’s net neutrality decision. Commissioner O’Rielly explained that his ‘answer was meant to relay the point that the only way to retain that current outcome was to maintain the current leaders in government. In other words, retaining the current Administration is the only sure way to prevent regulatory ping-ponging.’ But Commissioner O’Rielly did in fact have an answer to the moderator’s question that was not partisan — legislative action by the Senate — which he expressed only after suggesting the solution was to ‘make sure that President Trump gets reelected.’”

However, Ms. Hamrick added, “Regardless of his explanation, Commissioner O’Rielly advocated for the reelection of President Trump in his official capacity as FCC Commissioner. Therefore, he violated the Hatch Act’s prohibition against using his official authority or influence to affect an election. Although OSC has decided to issue a warning letter in this instance, OSC has advised Commissioner O’Rielly that if in the future he engages in prohibited political activity while employed in a position covered by the Hatch Act, we will consider such activity to be a willful and knowing violation of the law, which could result in further action pursuant to 5 U.S.C. § 1215.”

Section 1215 states, “In the case of an employee in a confidential, policy-making, policy-determining, or policy-advocating position appointed by the President, by and with the advice and consent of the Senate (other than an individual in the Foreign Service of the United States), the complaint and statement [of facts prepared by the Special Counsel], together with any response of the employee, shall be presented to the President for appropriate action in lieu of being presented [to the Merits Systems Protection Board].”

In a statement responding to the OSC’s finding, Commissioner O’Rielly said, “I appreciate that OSC recognized that the statement in question was part of an off-the-cuff, unrehearsed response to an impromptu question, and that they found this resolution to be the appropriate consequence. While I am disappointed and disagree that my offhand remark was determined to be a violation, I take their warning letter seriously.”

Austin Evers, executive director of American Oversight, one of the two watchdog groups that had submitted complaints about Commissioner O’Rielly’s remarks, said, “Commissioner O’Rielly flouted the requirements of his position when he pushed for Trump’s re-election, and OSC’s conclusion that he violated the Hatch Act confirms our concern that O’Rielly is undermining the independence of the FCC. Public trust in the FCC won’t be restored until O’Rielly resigns.”

Liz Hempowicz, director–public policy for the Project On Government Oversight (POGO), the other group that submitted a complaint, said, “I’m encouraged to see the Office of Special Counsel continue to take Hatch Act complaints seriously. The Hatch Act contains important provisions to keep partisan politics out of the executive branch, and enforcing it is in the best interest of each American citizen.”

POGO Executive Director Danielle Brian said, “Federal employees, while on the clock in their official roles, are acting on the taxpayer’s dime. They shouldn’t be using their time — and therefore, taxpayer dollars — to advance anyone’s partisan agenda. We need to be able to trust our government to act in the public interest, not partisan interests.”

While the FCC is an independent agency, its employees are considered part of the executive branch for enforcement of the Hatch Act. —Lynn Stanton, [email protected]

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