The Office of Special Counsel (OSC) has concluded that Secretary of Health and Human Services Kathleen Sebelius violated the Hatch Act by engaging in political activity during an official appearance at the Human Rights Campaign’s gala in the battleground state of North Carolina this past February. While delivering the keynote address in her official capacity, Secretary Sebelius endorsed the lieutenant governor of North Carolina in his campaign for governor and strongly advocated the reelection of President Obama, stating:
One of the imperatives is to make sure that we not only come together here in Charlotte to present the nomination to the president, but we make sure that in November he continues to be president for another four years . . . . It’s hugely important to make sure that we reelect the president and elect a Democratic governor here in North Carolina.
The Secretary’s partisan political comments at an official event, at two different points in her speech, represent a clear violation of the Hatch Act. She certainly knew better. During the OSC investigation, Secretary Sebelius acknowledged that she had been trained several times on the restrictions on the Hatch Act, which training certainly covered the basic prohibition on political advocacy at an official event. Moreover, the secretary’s briefing memo contemplated that she might be asked to give her personal opinion on something, and advised her to deflect by saying, “I’m here to represent the president and the Obama administration, not in my personal capacity.” Such a blatant violation, therefore, is inexplicable, unless she simply forgot where she was and why she was there and got caught up in the moment, as she had suggested in her interview with OSC.
Once the inevitable media inquiries about her political remarks at the HRC gala started pouring in to HHS, the Secretary realized that she had gone far off the reservation and, to her credit, admitted her mistake and acted to have the taxpayers reimbursed by the Obama campaign and the Democratic National Committee for her travel expenses to Charlotte. Nevertheless, she cannot un-ring the bell, as she argued unpersuasively in her defense to OSC’s proposed charges. Not to equate the two, but a bank robber is not exonerated merely because he returns the money to the bank. Similarly, Secretary Sebelius’s corrective actions do not change the fact that her political advocacy in an official forum violated the law.
The matter now has been referred to President Obama, who has the statutory responsibility to take “appropriate action” in light of the OSC’s finding that Secretary Sebelius violated the Hatch Act. The presumptive penalty for a Hatch Act violation is termination from government employment, which, if challenged, can be reduced to a suspension of no less than 30 days without pay. Notably, a former U.S. attorney was suspended last year for 100 days for a violation that was considerably more nuanced than the violation by Secretary Sebelius.
It will be interesting to see what, if any, disciplinary action President Obama will take against his Health and Human Services secretary. My guess is that he will be sympathetic to her transgression, if he even recognizes it as one, given his barnstorming around the country last fall under the guise of promoting his jobs bill and discussing student loans, and his undignified raffling off of dinners and lunches with the president (“and Joe!”) to campaign donors. The president has spoken constantly about accountability in his administration. Here is an opportunity to demonstrate that he means it.
— Scott A. Coffina is a former associate counsel to President George W. Bush and former assistant U.S. attorney.