HHS secretary violated Hatch Act during event last February
By Tim Funk
Originally published by The Charlotte Observer: Thursday, Sep. 13, 2012
CHARLOTTE, N.C. — Obama Cabinet member Kathleen Sebelius violated federal law when she made “extemporaneous political remarks” during a February speech to the Human Rights Campaign Gala in Charlotte, the U.S. Office of Special Counsel said Wednesday.
Sebelius attended the event in her official capacity as head of the U.S. Department of Health and Human Services. But during a speech devoted mostly to how HHS and Obama administration programs have helped gays and lesbians, the secretary went “off script,” as she later put it, and made a series of political statements to the crowd at the fundraiser.
She promoted President Barack Obama’s re-election, endorsed Democratic Lt. Gov. Walter Dalton for N.C. governor and called for defeat of Amendment One – the then-proposed state constitutional amendment to reaffirm North Carolina’s ban on same-sex marriage.
These remarks, Special Counsel Carolyn Lerner wrote in a Wednesday letter to the president, were a violation of the Hatch Act, the law that prohibits federal employees from using their official authority or influence to affect the outcome of an election.
Days after the speech, The Charlotte Observer made inquiries to HHS about whether she meant to endorse Dalton – then in the midst of a Democratic primary – and whether the federal government would pay for a trip in which she made such partisan comments.
In response to those inquiries, HHS reclassified her appearance before the Human Rights Campaign – a civil rights group working to achieve equality for gays and lesbians – as a political event. She rescinded her endorsement of Dalton and announced that the federal government would not pay for the trip.
According to an investigation by the Special Counsel’s Office, the Democratic National Committee later reimbursed the government $2,514.50 for her Charlotte trip.
In her letter to the president, Lerner recommended no action against Sebelius, though her case is the only one since 2007 in which a high-ranking presidential appointee has been found to have violated the Hatch Act.
What Sebelius said in Charlotte
Addressing the Human Rights Campaign Gala on Feb. 25 at the Charlotte Convention Center, the HHS secretary said:
• “(Lt. Gov. Walter Dalton) needs to be the next governor of North Carolina.”
• “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 that we re-elect the president and elect a Democratic governor here in North Carolina.”
• Defeating proposed N.C. constitutional Amendment One could serve as “a great template to do what needs to be done to organize people and turn out people for November… It’s hugely important to defeat Amendment One on the ballot in May.”
In that last case, General Services Administrator Lurita Doan was fired by President George W. Bush. The Office of Special Counsel had recommended that Doan be “disciplined to the fullest extent” after finding that she had urged officials in her agency to help GOP candidates.
The U.S. Office of Special Counsel is an independent federal investigative and prosecutorial agency that, among other things, enforces restrictions on political activity by government employees.
It handles such violations itself except when they involve officials who, like Sebelius, were appointed by the president and confirmed by the Senate. The Office can recommend action to the president, but in this case Lerner “really believes it’s up to the president to decide what’s appropriate,” said agency spokesperson Ann O’Hanlon.
On Wednesday, the White House didn’t seem inclined to take any disciplinary action against Sebelius, judging by a statement from spokesman Eric Schultz.
“As the Office of Special Counsel has noted, these were extemporaneous remarks, the Health and Human Services Department has since reclassified the event to meet the correct standard, the U.S. Treasury has been reimbursed, and Secretary Sebelius has met with ethics experts to ensure this never happens again,” Schultz said. “This error was immediately acknowledged by the secretary, promptly corrected, and no taxpayer dollars were misused.”
In a Sept. 7 letter to Counsel Lerner, Sebelius admitted making mistakes, but took issue with the report’s conclusion.
She said that the Special Counsel’s finding that she violated the Hatch Act was “somewhat unfair” since she acted quickly to reclassify the event and get reimbursement and because she spoke mostly about HHS programs and objectives.
The Hatch Act permits federal employees to make partisan remarks when speaking in their personal capacity – as Cabinet members sometimes do – but none of the costs associated with that political activity can be paid with taxpayer money.
“I regret making statements that converted my participation in the event from official to political,” Sebelius wrote. “(But) keeping the roles straight can be a difficult task, particularly on mixed trips that involve both campaign and official stops on the same day.”
Sebelius also wrote Lerner that she has since met with ethics attorneys in HHS to make sure she is clear “what types of statements are prohibited at an official event.”
In her letter to the president, Special Counsel Lerner concluded with this suggestion: “As the upcoming elections approach, this report offers an opportunity to remind federal employees of the complex Hatch Act restrictions.”
One powerful Republican congressman weighed in on the case Wednesday, saying the Special Counsel Office’s findings “underscore the importance of laws prohibiting mixing official government business with partisan political activity.”
“The committee awaits President Obama’s decision,” House Oversight and Government Reform Committee Chairman Darrel Issa, R-Calif., told the Federal Times. “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 and other Cabinet secretaries were in Charlotte last week to speak at the Democratic National Convention. But, according to The Associated Press, whenever a member of Obama’s Cabinet spoke, a soaring American flag was projected on the big screens at Time Warner Cable Arena to avoid violating the Hatch Act, which bars electioneering by federal officials.