OSC, HHS's Sebelius at odds over Hatch Act violation

Wednesday - 9/12/2012, 7:52pm EDT

HHS Secretary Kathleen Sebelius (HHS photo from May 2012)

The Office of Special Counsel and the Department of Health and Human Services are at odds over whether Secretary Kathleen Sebelius violated the Hatch Act.

OSC Special Counsel Carolyn Lerner said in a letter to President Barack Obama that Sebelius's comments during a Feb. 25, 2012 speech broke the law prohibiting federal employees from engaging in partisan actions. OSC Sebelius spoke in her official capacity as HHS Secretary at the Human Rights Campaign Gala. Political appointees speaking in their official capacity cannot make partisan comments. Political appointee speaking in a personal capacity are allowed to make partisan remarks.

During her speech, OSC stated in a report to President Barack Obama that Sebelius advocated the President's reelection and the election of Lt. Governor Walter Dalton as the next governor of North Carolina.

But Sebelius disagrees with OSC's findings, saying she reclassified the speech as a political event, which political appointees are allowed to attend, after making the remarks. The Obama Presidential campaign reimbursed the Treasury Department for any travel costs.

"I believe that you should have concluded that any violation was corrected when the event was reclassified as political, just as you concluded that any potential violation of Section 7324 (b) was corrected when the U.S. Treasury was reimbursed for the expenses of the trip," Sebelius wrote in response to the OSC report.

Sebelius went 'off script'

Lerner stated everything about the trip up until Sebelius went "off script" and reclassified the trip amounted to her acting in her official HHS Secretary capacity.

"Secretary Sebelius then presented her prepared remarks, which focused on the administration's policies," the report states. "She referred to the President's then-recent State of the Union address and his framework for the economy. The Secretary highlighted advances made by the Obama administration that benefitted Lesbian-Gay-Bisexual and Transgender Americans."

Lerner said departure from her prepared remarks, advocating for Obama's re- election and the election of Dalton, is where she crossed the line.

In an interview with OSC, Sebelius tried to clarify what happened.

"The Secretary explained that she did not know Mr. Dalton and did not intend to endorse his candidacy," OSC stated Sebelius said during their investigation. "She intended to recognize his presence, as she usually attempts to acknowledge key attendees when she is at events. The Secretary had been told that Mr. Dalton was in attendance, and he had declared his candidacy for Governor. Secretary Sebelius explained that her 'shout out' came across 'as an endorsement.' She expressed regret for the statements, particularly since there were 'other primary opponents who were close by.' She further stated that she rescinded the endorsement."

As for the endorsement of the President, Sebelius told OSC she made "a mistake, and "got a little caught up in the notion that the gains which had been made would clearly not continue without the President's reelection."

Still, OSC concluded that Sebelius violated the Hatch Act.

White House says Sebelius has corrected problem

Sebelius said it's tough to separate the roles as she attends political and official events often on the same day.

"Since the incident, I have met with the ethics attorneys at the department to ensure that I have an accurate understanding of what types of statements are prohibited at an official event," she wrote to OSC. "I appreciate the OSC has not recommended to the President that any particular action be taken and I don't believe that any action would be appropriate."

White House spokesman Eric Schultz said in an emailed statement that Sebelius took the appropriate steps to fix the problems.

"This administration holds itself to the highest ethical standards, which is why President Obama has installed the toughest ethics rules of any administration in history — beginning on his first day in office when he signed an executive order instituting unprecedented reforms," Schultz wrote.

Rep. Darrel Issa (R-Calif.), chairman of the Oversight and Government Reform Committee, said in a release that OSC's findings show the importance of the Hatch Act's safeguards against mixing government business with partisan politics.

"OSC has sent its findings to President Obama, who must now decide on appropriate action," Issa said. "The committee awaits President Obama's decision. As he decides the appropriate consequences for Secretary Sebelius, the President should consider the important leadership role of cabinet secretaries and the example they must set for the entire executive branch."

Sebelius is the highest ranking political appointee to have violated the Hatch Act.

The only other instance in recent memory of a high-ranking political appointee violating the law is when OSC found former General Services Administration Administrator Lurita Doan violated the law in 2007 by asking GSA staff members to help support candidates in an election.

RELATED STORIES:

Lawmakers unveil Hatch Act update

How to avoid Hatch Act hassles