This week, a three-member board responsible for keeping the civil service free of political activity revived complaints against two former Social Security Administration employees who, during the 2004 presidential campaign, forwarded e-mails while at work revealing their allegiances.
The question is how far federal workers can go in expressing their views during work hours and on government computers. It also questions whether those expressions meet the definition of "electronic leafleting" or "electioneering," which are banned under the Hatch Act.
The two employees worked in the Social Security regional office in Kansas City, Mo. The first e-mail, from Leslye Sims, who now works for the Federal Aviation Administration, was titled "FW: Fwd: Fw: Why I am Supporting John Kerry for President?"
Sims began her e-mail with "Some things to ponder ... " and then copied and pasted a pro-Kerry letter from John Eisenhower, son of former President Dwight D. Eisenhower. Sims e-mailed the letter to 22 people, including Michael Davis, who responded. Davis no longer works for SSA; it is unknown whether he is still a federal employee.
Davis' response was addressed to 27 people, including some nonagency employees. The subject was "FW: Your Vote" and was a copy of a message including a picture of President Bush in front of an American flag with "I Vote the Bible." The e-mail lauded the president, questioned Kerry's morals and urged recipients to "Pass along the 'I Vote the Bible' button," according to the special counsel's office.
"This is obviously not an organized effort to engage in electioneering," said Elaine Kaplan, a former special counsel, who is now an attorney for the National Treasury Employees Union. "The Hatch Act was designed to get at serious misconduct, which is why the presumptive penalty for violating it is removal. This prosecution is a gross overreach."
In April 2005, Administrative Law Judge Arthur J. Amchan threw out the case without holding a hearing on the complaints by Special Counsel Scott Bloch, who wanted the employees fired. On June 12 of this year, the Merit Systems Protection Board ruled that the case's dismissal was too hasty and ordered Amchan to hold a hearing and gather more facts.
The final decision may come down to whether Sims or Davis individually typed each recipient's name into the e-mail, rather than blasting it to a large group of unknown people, and whether the e-mails' content was copied or original.
Amchan had ruled that the e-mails amounted to permissible "water-cooler"-type discussions or "face-to-face expressions of personal opinion," but in a statement released this week, Bloch said they were an abuse of taxpayers' resources.
"The nature of e-mail forwards is that starting with a base of 20 or 30 people, it wouldn't take any time at all for those e-mails to be distributed to lots and lots of people," said Loren Smith, Bloch's director of congressional and public affairs.
If found to be in violation of the Hatch Act, Sims could face a penalty ranging from dismissal to a 30-day suspension without pay. If Davis no longer works for the government and is found in violation, a notice would be placed in his personnel file describing the penalty, which would have to be fulfilled if he were rehired, Kaplan said.
"Honestly, I expect this case to go before the U.S. Supreme Court," said Sims' attorney, Melvin L. Jenkins of Omaha, Neb. "At this point, my client wants to know, why this can't just be over with? Why me?"
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