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Congress specifically focused on eliminating coerced political activity in structuring the federal civil service system. United States Code, Title 5, Section 2302(b) says that federal employees are protected against “coercion for partisan political purposes.” This protection extends to most employees and applicants for employment in Executive Branch agencies.

There are two procedural circumstances in which the prohibited personnel practice (“PPP”) of coerced political activity can be asserted by an employee: as an affirmative claim or as a defense to an adverse action.

Affirmative Claim to OSC

If a federal employee or applicant believes that a PPP has occurred, the employee may file a complaint with the U.S. Office of Special Counsel (“OSC”). OSC may investigate and prosecute coerced political activity under both the PPP provision of Title 5 and the Hatch Act.

After receiving a complaint of coerced political activity, OSC will conduct an investigation into the allegation. The investigation may include a review of records and interviews of the complaining employee and witnesses. Based on OSC’s investigation, OSC can seek corrective action, disciplinary action, or both. If an agency refuses to take action recommended by OSC, the matter can be brought before the MSPB.

With an affirmative claim of PPP coerced political activity (where the MSPB would not otherwise have jurisdiction over the claim), individual employees or applicants cannot bring a legal claim on their own behalf. The claim can only be brought before the MSPB by OSC.

As Defense to Personnel Action

An employee subject to an adverse action over which the MSPB has jurisdiction may claim that coerced political activity was a motivating factor in the agency’s action. For example, employees have claimed that termination actions were motivated by the employees’ refusal to engage in coerced political activity. OSC has the authority to delay an agency’s proposed personnel action if the action resulted from coerced political activity. If coerced political activity is raised as an affirmative defense in an MSPB appeal of an adverse action, the employee must produce evidence to support the claim.

If you have been subjected to coerced partisan political activity, contact KPW today to discuss your legal options.

The Merit Systems Protection Board (MSPB) hears certain appeals and complaints filed by federal government employees.  The attorneys of Kator, Parks & Weiser have extensive experience handling cases before the MSPB.  Contact KPW today for a free consultation regarding your claims.

The MSPB hears appeals of certain disciplinary actions.  An employee who qualifies for civil service protection may appeal any termination, demotion, furlough for less than 30 days, or suspension of more than 14 days, to the MSPB for adjudication before an independent Administrative Judge.  The adverse action notice from the agency must set forth the applicable deadline, and will provide information about filing the appeal with the MSPB.

An important component of civil service protection is that management may not impose an unduly harsh punishment.  The MSPB has developed a list of factors that management and MSPB judges must consider in determining the appropriateness of a given punishment in a particular case.  Because the MSPB has authority to reduce a serious disciplinary action, an employee may want to pursue an MSPB appeal to fight for a reduced punishment, even if the employee admits to misconduct.

KPW’s MSPB practice group is chaired by Jessica Parks.  Ms. Parks served as an MSPB Administrative Judge, and was later appointed by the President as a Member and then Vice Chair of the MSPB.  Contact KPW today for a free consultation.

The MSPB also hears cases filed under the Whistleblower Protection Act, the Uniformed Services Employment and Reemployment Rights Act (USERRA), and the Veterans Employment Opportunities Act (VEOA).

Whistleblowing means disclosing information that you reasonably believe is evidence of a violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.  In most cases, a federal employee who believes he/she was subjected to retaliation for any such disclosure, must first go to the Office of Special Counsel (OSC), before filing an appeal with the MSPB.

An employee alleging a violation of his/her rights under USERRA, following service in a uniformed service may file an appeal with the MSPB.  USERRA protects the rights of veterans of the uniformed services to return to their work assignments, and protects from discrimination based on being a member or veteran of the uniformed services.

VEOA guarantees veterans’ preference in applications for certain federal civil service positions.  Procedural steps must be taken, including a timely filing with the Department of Labor, before a claim may be filed with the MSPB.

We strongly encourage anyone presented with notice of a proposed adverse action, or anyone considering a claim of whistleblower retaliation, violation of USERRA or violation of VEOA, to seek guidance and assistance immediately from an attorney experienced in handling federal employee adverse actions.  Contact KPW today to discuss your legal options.