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Did Michelle Rhee violate the Hatch Act?

That's what a number of folks have been asking since the chancellor weighed in on the mayor's race last week, asserting that Vince Gray was no Adrian Fenty when it came to education reform.

The Hatch Act, the federal law that regulates political activity by District employees, says they "may not use their official authority or influence to interfere with the result of an election."

In a series of interviews last week Rhee seemed to be doing precisely that, staking out her support for the mayor and characterizing the D.C. Council chairman as a conventional politician too concerned with public opinion.

"I think that the differences between Mayor Fenty and the chairman in how they would approach this effort are very, very clear," she told me. "In fact, in some cases I don't think you can get more stark in terms of those differences, And I think the mayor has also made it clear that I am a part of his vision and his plan."

She told Newsweek that Gray is "very process-oriented and wants less turmoil. That's one way to go about things, but if procedure and harmony are his priorities, I'm not his girl."

I acknowledge that there's something a bit disingenuous about raising this issue. I'd been asking Rhee about the mayor's race for many weeks before her recent statements. She always begged off, expressing reluctance about straying into what she called "a political minefield." So when she finally steps up, I start brandishing the Hatch Act. On the other hand, it's the law, carrying a penalty that can range from a month's suspension without pay to removal from office. District lawyers were concerned enough about it that they briefed her at the start of the political season.

My questions to D.C. Attorney General Peter Nickles and his Hatch expert (Hatch man?) Thorne Pozen, e-mailed Tuesday morning, have not been answered.

The U.S. Office of Special Counsel (OSC), the federal agency that enforces the Hatch Act, wasn't much help. "For OSC to make any determination would require a detailed inquiry and we would look at all sorts of factors," said Nadia Konstantinova, a staff attorney who works on Hatch issues. And for that to happen, she said the agency would have to receive allegations of a violation.

So have there been allegations? "I'm not able to comment on that," Konstantinova said. About the best she could do, she said, was refer me back to the agency's Web site, which sets out "how political activity is defined and what kind of allegations exist."

That clear everything up?

One interesting footnote: A list of advisory opinions on the OSC site includes one affirming that public charter school employees are not covered by the Hatch Act. The December 2008 letter, written to someone whose name has been redacted, responds to a question about staff at Carlos Rosario International Public Charter Schools. It said that under the D.C. Code charter school employees belong to "an excepted category," because the schools are operated by private, nonprofit boards. Hatch only applies to employees of non-profits if the laws through which they derive federal funding specifically provide for it. In the case of charters,OSC said, they don't.

UPDATE: Nickles responded by e-mail at 5:28 pm. "No violation."

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By Bill Turque  |  July 7, 2010; 11:34 AM ET
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You're calling yourself out on possible disingenuousness, but let's not forget there was another response that was entirely at her disposal, namely, brandishing it first:

"Sorry, Bill, I can't answer that question. It would be a violation of the Hatch Act."

Posted by: goldgirl96 | July 7, 2010 12:04 PM | Report abuse

Nickles and Rhee have both openly campaigned for Fenty in violation of the Hatch Act. They have to be very careful in what they say...and I think they may have crossed the line a few times.

Posted by: dcresident12 | July 7, 2010 12:16 PM | Report abuse

The media may have dubbed her as "superwoman" but there is one thing she cannot do. She cannot SHUT -UP! That may end up being her "kryptonite". If not hers it will kill Fenty. Everytime she opens her mouth, he looks dumber

Public opinion: She broke the law! The other agency chiefs seem to know the law. The rest of them are quiet.

Posted by: candycane1 | July 7, 2010 12:25 PM | Report abuse

Did Michelle Rhee violate the Hatch Act?
ANSWER: YES!! Without a doubt, no question about it. Now here's the real question....

Was Nadia Konstantinova or Thorne Pozen appointed, suggested, referred by Fenty administration?

THAT answer will determine for me if this situation will be taken seriously or not. Both Rhee AND Nickles clearly violated the hatch act since they were both being interviewed BECAUSE of their positions. The fact that you kept badgering them (if thats how it happened) is irrelevant. She was even briefed at the start of the political season as you said.

And badgering or continuously asking the same question over and over to get a answer from the Fenty administration has never been a reason to give an answer before. Why start now? How about going through the list of FOIA request that are dating back three years and answering some of those questions? Oh, I forgot, they dont answer those unless ordered by the court. SMH at your trying to get her out of the corner she put herself in.

Posted by: tformation1 | July 7, 2010 12:25 PM | Report abuse

Michelle Rhee has violated the Hatch Act. There really isn't any real question about it. However, this administration has repeatedly disregarded laws that everyone else is asked to follow. Fortunately this is a federal law that AG Peter Nickles would not be able to shield the Chancellor from. The FBI is already investigating one of Fenty's directors. Let's hope they are on the trail of many others.

Posted by: concernedaboutdc | July 7, 2010 1:11 PM | Report abuse

"it's the law, carrying a penalty that can range from a month's suspension without pay to removal from office."

So if Rhee gets suspended for a month, it can be another example of the hard knocks she's willing to take in "the best interests of the children."

And if she is removed from office, then it's just another way, in addition to Fenty losing, to get her ticket to Sacramento.

Posted by: efavorite | July 7, 2010 1:40 PM | Report abuse

Please, I could win this case in my first year of law school. Rhee is safe by a mile. Gray's actions as Council Chair over the last three years illustrate the point.

The word "offical" is the operative word in the passage. It does not say that it is illegal to use influence. Just not "offical" influence.

If it was the case that "influence" alone violated the law...Gray would be violating the Hatch law for several things. Like sanctioning "pro-bono" specical council investigations to investigate his political opponent. And doing so after the councils investigation turns up nothing. Then using those accusations as a basis to run for Mayor.

But is it the candidate doing it? Or is it the council chairman? Which hat is he wearing when he makes his decisions that have a very sefl-serving effect?

That is clearly using his influence as Chairman of The City Council to infleunce the outcome of the election. But you would be hard pressed to prove it was "offical" influence.

Rhee was asked a question about her personal future. She answered the question. She did not seek someone out, Comcast for example, and use her official DCPS letter head to raise money for Fenty. Sound familiar?

Hatch act please. There is a loophole in the sentence you can drive a truck thru. And, Gray runs his investigation trains thru there with regulatity.

Posted by: politicalrealist | July 7, 2010 2:34 PM | Report abuse

I agree with candycane...not only does Rhee not know how to run a school system, she doesn't know how to keep her mouth shut.

As a DCPS employee, I can tell you we have been emailed the Hatch Act at least twice and had hard copies put in our boxes in local schools. Fenty & Rhee's way of scaring teachers into NOT campaigning for Gray.

Unless Gray makes some real egregious blunder, I believe it's safe for Fenty to start job hunting and for Rhee to begin packing up for her move to Sacramento. I'll be glad to see them both go and then get on with real reform in DCPS rather than scare tactics and being a testing mill.

Posted by: UrbanDweller | July 7, 2010 2:35 PM | Report abuse

Talk about journalists creating the news . . .

Posted by: kazmier | July 7, 2010 2:56 PM | Report abuse

@Candycane1, again you are right on the money.

Posted by: fivetogo | July 7, 2010 3:15 PM | Report abuse

You must be kidding. This doesn't even come close to violating the Hatch Act. A Hatch Act violation comes when you say, "Vote for X" or do something which endorses X or encourages someone to vote for X. She said that she would work better with Fenty rather than Gray. This is a factual statement. As most of the people here have demonstrated, they are less likely to vote for Fenty as a result of Rhee's comments. Unless you are trying to say that Rhee's declaration of affiliation with Fenty is her way of influencing people to vote for Gray.

Posted by: univertel | July 7, 2010 3:15 PM | Report abuse

Regardless of whether or not she violated the Hatch Act, we have to ask of Rhee, who does she serve? Does she serve the mayor, or does she serve the city and the city's schoolchildren? Looks like she's already shown us where her priorities are.

Posted by: MrDarwin | July 7, 2010 3:21 PM | Report abuse

I'm not a fan of either, but I pose a question to the author of this "blog". Is it that dry in the "excitement" department of your job that you seek out this person, beg and beg and beg her to give you a forthright answer, and then entrap her by pointing out by the mere act of speaking to you after your consistant "badgering" is a violiation? how empty would this space have been from your side if she had said "STOP HARRASSING ME FOR MY OPINIONS ON POLITICAL MATTERS"?

would you still have found something more news worthy and important to the PEOPLE to write about, or does the Post pay you more for drama and "gotcha" moments. I may be young, but I sure do miss the days when real reporters told the truth in the news and provided information we could use to make better decisions, not this conjecture, opinion and tabloid reporting that it has stooped to in the present.

Posted by: Just_An_Observer | July 7, 2010 3:44 PM | Report abuse

To politicalrealist: Thank you for providing some perspective on the issue....and the law...and counteracting the hysterics of the Rhee-haters.

Posted by: mtaweigh | July 7, 2010 3:50 PM | Report abuse


Do NOT panic--the WP will run an editorial tomorrow declaring Rhee has not violated the Hatch Act and all will be well in DC HAPPY WORLD.

Posted by: dccounselor72 | July 7, 2010 4:17 PM | Report abuse

What no response from Nickels.

Posted by: dccounselor72 | July 7, 2010 4:23 PM | Report abuse

My feeling is that Rhee's handlers checked this out carefully before sending her out to speak (to deflect Fenty's no show at the education debate), so whatever she said, however she said it, would not technically be a violation of the Hatch act.

I also think Bill Turque probably knows this very well and is just stirring things up here.

If you have the answer, Bill - please just give it to us.

Posted by: efavorite | July 7, 2010 4:28 PM | Report abuse

i'll bet you any amount of money that a complaint against rhee has been filed, and the person who filed it is named robert vinson brannum.

take that to the bank.

Posted by: IMGoph | July 7, 2010 4:31 PM | Report abuse

Does it really matter Rhee and Fenty get away with more than any person I have seen in awhile in DC. She is just a puppet for him anyway but in her case she likes it. Not having to be accountable for anything she does wrong. Why answer anyone questions when he doesn't but he's right there to back her up and vice versa. Now the threats that she makes on the job all should have went straight to EEO but, did they NO. But she has been doing what she wants anyway. Fenty is finished anyway Gray may be better for the city and our children. At least he answers questions relavent to the issues of the city and school system. It time for a change, get someone in the Mayor's office as well as our Public Schools who give a darn about someone other then themselves.

Posted by: lolitaj32 | July 7, 2010 4:50 PM | Report abuse

You must be kidding. This doesn't even come close to violating the Hatch Act. A Hatch Act violation comes when you say, "Vote for X" or do something which endorses X or encourages someone to vote for X.

Guess you've never been at a meeting where Rhee has volunteered as part of her speech, not in response to any question, that if you want good schools and her to stay, there's only one person who can make that happen -- Adrian Fenty; I've heard it 2x.

Posted by: grclarkdc1 | July 7, 2010 4:59 PM | Report abuse

Vincent Gray cannot violate the Hatch Act, as the DC Mayor and City Council are explicitly not covered by it.

Among the examples of permitted activities for "Less Restricted Employees" (which Ms. Rhee is) listed on the OSC web site, such employees may "express opinions about candidates and issues". So this whole thing is just poppycock. This is journalism these days? No wonder the Post is dying.

Posted by: thehersch | July 7, 2010 5:07 PM | Report abuse

In response to grclarkdc1 you must be on the payroll. I have been in meetings with Rhee and she is one to avoid questions when asked directly. Unless it's been cleared by her PR person she doesn't answer questions. She needs to leave, you say if you want good schools she needs to stay tell that to all the people she RIF but then found all the money. Every year since she's been in DC there is a restruction. Spending money on contractors when she fired the people who were doing the job. Contractors that don't know what the others are doing having to do the job over spending more money.

Posted by: lolitaj32 | July 7, 2010 5:14 PM | Report abuse

grclarkdc1 "if you want good schools and her to stay, there's only one person who can make that happen -- Adrian Fenty; I've heard it 2x."

Please name the meetings - maybe they were taped or transcribed. Also - they must have been recent meetings, because it's only recently that she's implied she would leave if Fenty lost. I've heard her praise fenty, but never, until now, did she link her staying with Fenty.

Perhaps you don't have all your facts right.

Posted by: efavorite | July 7, 2010 5:27 PM | Report abuse


Examples of possible violations of the HATCH ACT

The Hatch Act prohibits Less Restricted employees from:

• using their official authority or influence to interfere with or affect the result of an election;

• post a comment to a blog that advocates for or against a partisan political party, candidate for partisan political office, or partisan political group

And perhaps,
• engaging in political activity while:
• on duty;
• in a government office;

Posted by: dccounselor72 | July 7, 2010 5:39 PM | Report abuse

Bill Turgue pulled a classic stunt -- ask a question of people who you know are precluded from answering it and then imply that their failure to answer bolsters your position. Officials charged with investigating violations of the Hatch Act cannot express an opinion on a matter that may come before them.

On the other hand, had Turque asked any informed person who could have answered the question (e.g., a lawyer who specializes in political offenses), he would have received a simple answer: No Rhee's comments did not violate the Act.

Instead, Turque chose to throw the unanswered, but easily answerable question out to the readers so that the pack of dogs can fight over a scrap of red meat.

Those who want to attack Rhee should do so on the merits and leave frivolous arguments like the Hatch Act accusation in the gutter where they belong.

Posted by: MdLaw | July 7, 2010 6:04 PM | Report abuse

"She told Newsweek that Gray is "very process-oriented and wants less turmoil. That's one way to go about things, but if procedure and harmony are his priorities, I'm not his girl.""

"I'm not his girl." Ugh.

Even putting that gag-inducing end to her quote aside, the fact that she disapproves of process, procedure and harmony makes me sick.

Posted by: dccitizen1 | July 7, 2010 6:17 PM | Report abuse

Another great article by Bill Turque. He tells it as it is.

Posted by: aby1 | July 7, 2010 7:07 PM | Report abuse

no biggie, ever since she showed up - whatever she does should be excused - she's so much better than the common people.. and as she say's it's all about her money

Posted by: drewseadler | July 7, 2010 7:21 PM | Report abuse

I'm not a DC resident and have mixed feelings about Rhee but do have some experience with Hatch Act violations.

This is not one; not close.

Posted by: ajlerner1 | July 7, 2010 7:28 PM | Report abuse

@UrbanDweller. Wrong again, madame. BTW, do u live in the District?

Posted by: axolotl | July 7, 2010 7:44 PM | Report abuse

@dccounselor72: Yes, but what she actually did was express opinions about candidates or issues. Look, I have no great love for Michelle Rhee, nor any strong view one way or the other about her performance in her job. But this is just a totally phony issue ginned up by a pseudo-journalist trying to get attention. I don't buy it. Sorry.

Posted by: thehersch | July 7, 2010 9:10 PM | Report abuse

The Hatch Act prohibits use of government resources, such as e-mail, for partisan political activities. It also has implications for serving military officers. It does NOT, and was never intended to, prohibit a government employee from expressing an opinion about an election, candidate, or issue - that would be a clear violation of the First Amendment. it would have taken just the smallest amount of research (that's a school thing) to determine the parameters of the Hatch Act (and that applies to all of you commenters). This was not only an example of poor journalistic ethics, it was an equally solid example of an educational deficiency. Let the ombudsman know what you think ( about this kind of journalism. And then do a web search...

Posted by: EGULGuy | July 7, 2010 9:24 PM | Report abuse

The behavior and comments of Rhee and Nickles are the best cure for any anxiety I have at the thought of Fenty winning re-election. Keep it up. I do appreciate Rhee for owning to being Fenty's "girl" and, obviously, little else. As far as the Hatch Act - they all look pretty ugly to me. I am looking forward to some real investigations.

Posted by: mjvdc | July 8, 2010 1:32 AM | Report abuse

EGUL guy - I did do a web search and, as a non lawyer, the exact rules were unclear to me. On the surface, Rhee's actions looked like a violation. however, I figured there must be wiggle room, or Rhee wouldn't have done it, being on the short lease that she is these days.

The clarifications here (in the comments section) helped me understand. She was not actively campaigning during work hours - i.e., initiating contact with voters, handing out campaign literature, appearing at a rally. She was simply answering questions put to her.

Posted by: efavorite | July 8, 2010 7:37 AM | Report abuse

The US Office of the Special Council's web site says that covered employees may "express opinions about candidates and issues" without violating the Hatch Act.

Posted by: quackslikeaduck | July 8, 2010 10:47 AM | Report abuse

I think the question is, was Michelle Rhee answering as an individual (her first amendment right) or as the chancellor? Since she specifically mentioned her position as chancellor during the interview, she has tied her official position to her personal position, hence a violation of the Hatch Act!

Posted by: tacard1 | July 8, 2010 5:38 PM | Report abuse

The Hatch Act is far far more specific than people here are suggesting. There is no potential violation here for a member of a mayor's cabinet to express her support for the mayor's educational policies.

Michelle Rhee is a political appointee appointed by a politician who works in the political field. She is allowed to make all the public statements she wants, virtually, hang up lawn signs in her home, etc.

She is not, I believe, allowed to hold an office within the Democratic Party, a paid position in Fenty's campaign, etc.

When I was a Fed they told us we could pretty much go on as normal but not say or do anything in our office in any way nor get paid by a political party. but I wore buttons and voted and talked to friends.

Posted by: bbcrock | July 9, 2010 2:23 PM | Report abuse

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