Acting with Impunity

Watchdog group seeks answers to questions around Secretary Sebelius’s campaign activities in 2012

President Obama, Kathleen Sebelius /AP
April 12, 2013

A government watchdog group is seeking clarity into how an election regulation is enforced on government employees.

Cause of Action sent a letter to several federal agencies on Monday asking how the Hatch Act, which prohibits federal employees from engaging in partisan campaign activity in their official capacity, applies to the subordinate who supported Department of Health and Human Services (HHS) Secretary Kathleen Sebelius when she violated the law last year.

Sebelius broke the Hatch Act last year when she endorsed President Barack Obama and another Democratic candidate while speaking to a gay rights group in North Carolina in her official capacity as secretary.

The office tasked with investigating violations of the Hatch Act, the Office of Special Counsel (OSC), wrote to Obama informing him of his secretary’s violation of the law. An OSC spokeswoman said the prosecutor had not heard back from the president, although she also noted that the office had not expected a response.

After Sebelius made her offending remarks, the department reclassified her trip from an official department trip to a political one. The department was also reimbursed for the visit by Obama’s presidential campaign and the Democratic National Committee.

Cause of Action’s letter focuses on a staffer who attended the event in North Carolina with Sebelius.

OSC found that the employee who traveled with Sebelius had not violated the Hatch Act because he was acting as support for what was initially classified as an official event. However, HHS had the costs for the employee’s travel reimbursed, along with Sebelius’s costs.

The OSC "appears to inconsistently interpret the Hatch Act" regarding employees who are supporting a superior who is engaging in political activity.

The law "does not distinguish ‘costs associated with political activity’ from the general rule concerning engagement in political activity," Cause of Action Executive Director Dan Epstein wrote in the letter. He noted another case where employees who helped Sebelius prepare for another political event did not have the costs associated with their work reimbursed.

Election law expert and law professor at the University of Minnesota Richard Painter said the department’s efforts to recoup the costs of the trip did not fix Sebelius’s violation.

"That doesn’t work because it was already advertised as an official capacity speech," Painter said.

"The charade of reimbursing the travel expenses did nothing to correct her violation," he said. "They could not make it a political trip retroactively as she had already spoken in her official capacity. She broke the law."

Both Painter and Epstein expressed frustration that the White House had not done anything to discipline Sebelius.

Epstein noted the apparent contradiction between the impunity granted to Sec. Sebelius and the president’s pledge to be the most accountable administration in history.

"We have put in place the toughest ethics laws and the toughest transparency rules of any administration in history," Obama said in 2010.

"This was a slam dunk violation by a cabinet member," Painter said.

The presumptive penalty for a Hatch Act violation is dismissal from the official’s post, although the president has discretion over the discipline for civil servants he appointed, Painter noted.

Sebelius’ situation is unique in that she is the first presidentially appointed cabinet member to violate the law.

The White House did not return a request for comment clarifying their decision not to discipline Sebelius. An official from the Department of Health and Human Services simply noted the facts surrounding the case and did not offer any comment on the lack of discipline.

Epstein said the Office of Special Counsel did not base their decision about the employee on any distinction based in the law.

"There’s no clear law or guidance that says you have to intend to violate the Hatch Act," Epstein said in an interview about the letter.

"Ultimately, we want clarity," he said.

Painter indicated that the OSC’s judgment was likely correct, but expressed surprise that the department sought reimbursement for his costs for what was, at the time, an official event.

"I have no idea why they reimbursed his expenses except to make a sorry attempt to cover up her violation," Painter said.