Sebelius made the remarks this past February in North Carolina. | M.Scott Mahaskey/POLITICO Report: Sebelius violated Hatch Act

HHS Secretary Kathleen Sebelius violated the Hatch Act, which prohibits certain political activity, when she made “extemporaneous partisan remarks” during a speech in her official capacity earlier this year, the U.S. Office of Special Counsel said Wednesday.

The office sent an official report outlining the rare Hatch Act violation and Sebelius’s response to President Barack Obama.


The special counsel’s office said it “found no evidence that Secretary Sebelius made any other political statements in her official capacity.”

During a speech to the Human Rights Campaign Gala in North Carolina in February, Sebelius said North Carolina Lt. Gov. Walter Dalton “needs to be the next governor of North Carolina.” She also outlined the Obama administration’s accomplishments so far and said, “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.”

The Office of Special Counsel said she made the political remarks in her capacity as a federal employee and thus violated the Hatch Act. If Sebelius had made those remarks in her personal capacity, they would have been acceptable.

After that appearance, Sebelius had the event reclassified from official to political, and done in her personal capacity, in an attempt to avoid a Hatch Act violation. She and HHS also reimbursed the Treasury Department for all the costs associated with the trip. At least some of the cost was picked by the Democratic National Committee, according to the OSC.

But the OSC said the reclassification doesn’t mean the violation didn’t occur, particularly because the gala was advertised using Sebelius’s HHS title.

“OSC concluded that Secretary Sebelius violated the Hatch Act by making extemporaneous political remarks,” OSC Special Counsel Carolyn N. Lerner wrote in a letter to President Barack Obama. “As the upcoming elections approach, this report offers an opportunity to remind federal employees of the complex Hatch Act restrictions.”

Hatch Act violations against sitting Cabinet secretaries are relatively rare.

“This particular type of violation, where you have a Cabinet secretary speaking at an event, is pretty uncommon,” said Scott Coffina, a former associate counsel in President George W. Bush’s White House and a partner at Drinker Biddle & Reath. He said there are “a lot of very garden-variety violations,” citing federal employees who forward political emails or put up campaign photos.

Republicans immediately criticized Sebelius, and conservative groups called for her dismissal.

But Sebelius told the OSC that the endorsements of Obama and the government were unscripted and a “mistake.” OSC quoted her as saying that she “got a little caught up in the notion that the gains which had been made would clearly not continue without the president’s reelection.”

Sebelius, in her response, said the ruling was “somewhat unfair” and the use of her title amounted to a “technical and minor” violation. She said that OSC should have concluded that the violation was “corrected” when the event was reclassified as political.

OSC said that by reimbursing the Treasury, she didn’t violate rules prohibiting government-funded political events, but it didn’t correct the prohibition on making political statements in an official role.

“It is my understanding that the Hatch Act permits Cabinet members to engage in political activities, without regard to location and duty hours, due to the 24-hour nature of our jobs,” Sebelius wrote. “I believe that you should have concluded that the consequence of my going ‘off script’ at an official event was to change the nature of my appearance for cost reimbursement purposes only.

“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 wrote.

Republicans were quick to pounce on Sebelius’s violation.

“That the secretary violated federal law in this manner is disturbing, but hardly a surprise,” said Antonia Ferrier, spokeswoman for Sen. Orrin Hatch (R-Utah). (The law was named after a different Sen. Hatch: Sen. Carl Hatch of New Mexico.)

“Since almost day one, this administration has had a singular focus on politicking — not governing — that’s borne out by the secretary ignoring a strict prohibition on electioneering while working for federal taxpayers,” Ferrier said.

House Oversight Committee Chairman Darrell Issa said Obama should carefully consider how to respond to the report.

“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,” he said in a statement.

Conservative advocacy groups said the violation warranted her departure.

“This is the most high-profile example of a Hatch Act violation since the act was passed in 1939,” said Dan Epstein, executive director of Cause of Action. “Never before has a member of the president’s Cabinet been found to have committed a Hatch Act violation. President Obama should immediately fire HHS Secretary Sebelius for her violation of federal law.”

Maureen Ferguson and Ashley McGuire of The Catholic Association said most of Sebelius’s actions “have advanced the president's political interests” throughout her tenure. “We already know she is willing to violate the First Amendment rights of Americans for political purposes, so why should we be surprised when she bends other laws to score political points?”

This article first appeared on POLITICO Pro at 3:10 p.m. on September 12, 2012.