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Prohibited Personnel Practice of the Month

PROHIBITED PERSONNEL PRACTICE OF THE MONTH

Number 3
Coercing political activity

Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—
(3) coerce the political activity of any person (including the providing of any political contribution or service), or take any action against any employee or applicant for employment as a reprisal for the refusal of any person to engage in such political activity

Where can I find this prohibition covered in the law?
This prohibited personnel practice (PPP) is listed at section 2302(b)(3) in title 5 of the United States Code.

Where did this provision come from?
While this provision was codified in 1978 within the Civil Service Reform Act of 1978, Pub. L. No. 95‑454, 92 Stat. 1111, it has an interesting history dating back nearly 100 years earlier.  From the earliest days of our Nation until 1883, it was common practice for the incoming President’s administration to reward members of his political party with Federal Government appointments within every level of the Executive Branch.  It was likewise expected of such Federal employees to make generous political donations back to their political patron.  Such practices led to public perceptions of widespread corruption and incompetence within the Federal Government. Michael Bogdanow and Hon. Thomas Lanphear, History of the Merit Systems Protection Board, Journal of the Federal Circuit Historical Society, Vol. 4, 109 (2010).

In 1883, Congress began to reign in such practices by passing the Civil Service Act, also known as “The Pendleton Act of 1883.”  This statute required for the first time that a sizeable portion of Federal appointments be made solely based upon the relative merits of the applicants, without regard to their political loyalties.  Over time, this principle was expanded and strengthened to protect all competitive and excepted service positions.  Today, it is a PPP under this statute for a Federal official to coerce any applicant or employee to engage in political activity, or to retaliate against such individuals based on partisan politics.  The Hatch Act of 1939 contains many similar prohibitions, and carries severe penalties.  See 5 U.S.C. § 7321 – 7326.  

If I file an appeal with the Merit Systems Protection Board (MSPB) and claim that the agency violated this provision, will the MSPB hear my claim?
Under 5 U.S.C. Section 7701(c)(2)(B), the MSPB may not sustain a personnel action “based on” a PPP.  Generally, a PPP may be raised as an affirmative defense in an otherwise appealable action in an appeal filed with MSPB.  An otherwise appealable action is a personnel action that can be appealed to MSPB on its own, which would include, for example, a removal or suspension of 15 days or more, and means that MSPB has jurisdiction in the case.  

As with the other PPPs, if your claim is filed with MSPB in connection with an otherwise appealable action, we will hear your PPP claim, but only if it is related to the underlying personnel action being appealed.  Such PPP claims will not be heard if your appeal is filed under the Veterans Employment Opportunities Act of 1998 (violation of veterans’ preference rights), the Uniformed Services Employment and Reemployment Rights Act of 1994 (discrimination based on military service), or the Whistleblower Protection Act (individual right of action appeals based on retaliation for making protected disclosures), as such appeals are not filed under MSPB’s otherwise appealable action authority, but rather specific subject-matter based statutory authorities.

If your PPP claim is not within the MSPB’s jurisdiction as explained above, you may still be able to file such a PPP claim with the Office of Special Counsel (OSC), which is a separate and independent executive agency.  As noted above, many of the prohibitions contained in this PPP on political coercion are also covered by the Hatch Act of 1939.  The OSC has authority to investigate potential Hatch Act violations, and to present such claims to MSPB for consideration.  Instructions for filing a PPP or a Hatch Act claim with OSC are provided at http://www.osc.gov

In addition, although probationary employees have no statutory right of appeal to MSPB, under 5 C.F.R. §315.806(b) they may appeal the termination of their appointment if they allege that the action was based on partisan political reasons.

Who has the burden of proving a claim under this section?
If raised in an otherwise appealable action appeal, a PPP claim is an affirmative defense.  An appellant bears the burden of proving such affirmative defenses by preponderant evidence.  Preponderant evidence is defined in Section 1201 of the MSPB’s regulations as the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.  The MSPB’s regulations can be accessed through our website at http://www.mspb.gov/appeals/appeals.htm

Does political coercion have to be extreme or perpetrated by a supervisor?
The answer to both questions is no.  The coercion does not have to be extreme to qualify for this PPP, and the employee need not be a supervisor. For example, in Special Counsel v. Ware, 114 M.S.P.R. 128 (2010), a Contracting Officer Technical Representative was removed for using her Government computer to send fundraiser emails to 14 or more individuals, three of whom were not Federal employees, but who she nevertheless exercised some control over because of her influence over a contract.  In its decision to remove the employee, the Board noted its holding in an earlier case, that “[t]he proscriptions of the Hatch Act fall equally on clerks and managers alike.” (The improper political activity in Ware was addressed solely under the Hatch Act, and was not prosecuted as a PPP violation of 5 U.S.C. §  2302(b)(3)).

In another case, Special Counsel v. Acconcia, 107 M.S.P.R. 60, ¶ 5 (2007), the Board explained that “the coercion of political contributions[] is one of ‘the most pernicious of the activities made unlawful by the Hatch Act’” and that a single occasion of soliciting funds from a subordinate for a political campaign warranted removal, even though the supervisor did not specifically attach any threats of consequences for failing to make the requested political contributions.

What penalties are possible for an employee who commits this prohibited personnel practice?
Violation of this PPP carries potentially devastating consequences for the offending employee.  This is because when such conduct also violates the Hatch Act, it carries a presumptive statutory penalty of removal.  Under the Hatch Act, the penalty of removal may be mitigated to no less than a 30 day suspension by a unanimous vote of the Board Members.  See 5 U.S.C. §§ 7324(a)(1) and 7326.