POGO Concerned About Risk of Implicit Bias in Office of Special Counsel Actions

The Honorable Henry Kerner
U.S. Office of Special Counsel
1730 M Street, NW, Suite 218
Washington, DC 20036

Dear Special Counsel Kerner:

Thank you for forwarding Associate Special Counsel Anne Wagner’s response to my May 6 letter to you.¹ I asked in my letter that the Office of Special Counsel (OSC) evaluate whether implicit bias could have contributed to its decision to single out Lynne Patton, a Black woman, as the only Trump administration appointee against whom it filed a Hatch Act complaint with the Merit Systems Protection Board (MSPB).² Rather than persuading me that POGO’s concerns are unwarranted, the response heightens our concerns. I’m responding to urge again that you consider fortifying OSC’s processes against implicit bias.

We are all subject to implicit bias. The challenge is to recognize that fact and set up systems to combat bias. We are raising questions based on the publicly available record. Without more transparency in OSC’s decision-making process, it is impossible to have confidence that implicit bias has not seeped into OSC’s subjective processes.

Patton Case May Not Be an Isolated Incident

The issues we are raising are systemic, and do not stop with the Patton case. OSC’s recent declaration that Housing and Urban Development Secretary Marcia Fudge, another Black woman, violated the Hatch Act raises similar concerns given that OSC did not hold White House adviser Jared Kushner, a white man, to the same standard.³

Mr. Kushner was the subject of a Hatch Act complaint after he discussed then-President Donald Trump’s candidacy and criticized the Democratic Party in a CNN interview.⁴ OSC concluded that Mr. Kushner did not violate the Hatch Act, but based its conclusions on the remarks CNN aired on television. The office acknowledged that Mr. Kushner made inappropriate remarks in the same interview, but claimed in a footnote that it could not pursue the matter because CNN had published those remarks online instead of airing them on television.⁵ OSC’s rationale is hard to accept at face value because the Hatch Act contains no exception for written materials.⁶ CNN’s online content receives 200 million unique visits per month.⁷

OSC’s treatment of Mr. Kushner was remarkably different from its treatment of Secretary Fudge. They both communicated with media outlets in an official capacity, and they both analyzed their party’s chances of winning an election. Yet OSC reprimanded only the Black woman. The following comparison shows the similarity of their remarks:

Secretary Fudge's Remarks

“Well, I have two friends that are thinking about it [running for Senate in Ohio]. Tim Ryan, of course, is thinking about it. I understand that Nan Whaley is thinking about it. I mean, I think we’re going to put a good person in that race, no matter who we choose. But they’re both friends. I think we have a good shot at it. I know people have written off Ohio. I haven’t written off Ohio. I believe we can win the Senate race.”⁸

Mr. Kushner's Remarks

“‘I think people want to blame the President for the country being divided, but I think they should look at the Dems and what they are doing. 

‘Fifteen percent of the people who disapproved of Donald Trump as a candidate ended up voting for him,’ Kushner continued without providing evidence, ‘so look, I think his base is strong and getting stronger. 

‘The energy that I’m feeling today is stronger than what we felt at the end of the campaign last year,’ Kushner continued, mentioning a recent Trump rally in Iowa. Trump is ‘strong, he’s getting stronger, the campaign is running well, his supporters are fired up and I do think this November is going to be a very, very important election.’”⁹

The disparities in OSC’s treatment of Secretary Fudge and Mr. Kushner further illustrate the concerns raised in my May 6 letter. OSC’s asserted reason for refusing to consider CNN’s article about Mr. Kushner is implausible—and that leaves OSC open to legitimate questions about what influenced its disparate treatment of Secretary Fudge.

OSC’s Explanation Regarding the Patton Case Does Not Withstand Scrutiny

POGO’s May 6 letter observed that OSC accused 17 Trump administration appointees of violating the Hatch Act, but that the agency filed an MSPB complaint seeking penalties against only one of them—Housing and Urban Development Regional Administrator Lynne Patton, a Black woman. Associate Special Counsel Wagner’s response makes a fair point that Ms. Patton committed more than one violation, but other points it makes are so unpersuasive as to cast doubt on OSC’s ability to perceive implicit bias.¹⁰

Associate Special Counsel Wagner’s letter indicates that “OSC’s role under the Hatch Act is to serve as a prosecutor, not a decision-maker.”¹¹ This disavowal of decision-making glosses over the countless decisions OSC makes when choosing who to prosecute. OSC decides which public complaints to reject, what information to collect for its investigations, which witnesses to interview, whether to assert that violations occurred, whether to file MSPB complaints, what penalties to seek, which cases to settle, and what terms to include in settlement agreements. If OSC’s leaders are turning a blind eye to the potential for implicit bias in this decision-making by their employees, they are in no position to reassure the public that the agency’s decisions are consistently free of implicit bias.

Associate Special Counsel Wagner next claims that OSC’s treatment of “high-level White House officials” was different from its treatment of Ms. Patton because the law bars OSC from filing MSPB complaints against them, and she cites 5 U.S.C. § 1215(b) as support for this claim.¹² Under what Associate Special Counsel Wagner calls the “bifurcated structure” of that law, she adds that “OSC is not permitted to send a report to the President and simultaneously file a complaint with the MSPB to fine that same official.¹³

The problem with this argument is its reliance on subsection 1215(b), which expressly covers only individuals appointed “by and with the advice and consent of the Senate.”¹⁴ That provision does not apply to White House officials, for they are not Senate-confirmed.¹⁵ A different provision, subsection 1215(a), applies to White House officials. Subsection 1215(a) commands that the Special Counsel “shall” pursue an MSPB complaint upon finding that an official, other than a Senate-confirmed appointee, violated the Hatch Act.¹⁶ Congress left OSC no discretion in the matter.

Further, contrary to Associate Special Counsel Wagner’s claim about a “bifurcated structure,” nothing in section 1215 prohibits OSC from sending a report of investigation to the president and simultaneously filing an MSPB complaint against a White House official. The MSPB complaint could seek fines against the White House official, as well as a reprimand and debarment from future employment in non-presidentially appointed positions, and the report of investigation could include, for example, a recommendation that the president fire the official.¹⁷

Offering another explanation, Associate Special Counsel Wagner states that the Constitution bars OSC from filing an MSPB complaint against a presidential appointee.¹⁸ POGO’s May 6 letter anticipated this argument, and emphasized that White House officials are not constitutionally immune from administrative fines for employment-related violations.¹⁹ We reminded OSC that two White House officials, senior advisers Ivanka Trump and Jared Kushner, were fined administratively under the Ethics in Government Act.²⁰ In her letter, Associate Special Counsel Wagner responds that, unlike in the Hatch Act, a “court” imposes fines under the Ethics in Government Act.²¹ But the distinction she implicitly draws is meaningless because a constitutional prohibition against fines would apply whether courts or federal agencies imposed them. The underlying assumption is also incorrect. The Ethics in Government Act authorizes courts to impose some fines and the executive branch to impose others.²² It was the executive branch that imposed the fines on Ms. Trump and Mr. Kushner.²³

There may be a legitimate explanation for OSC’s differing treatment of Ms. Patton and White House officials, just as there may be a legitimate explanation for the decision to hold Secretary Fudge accountable for conduct that OSC allowed Mr. Kushner to commit with impunity. But OSC has not yet offered one. That is cause for reflection about the insidious ways implicit bias can creep undetected into decisions.

OSC’s Problems Are of Its Own Making

The subjectivity of OSC’s Hatch Act enforcement raises questions about the office’s processes. A public that wonders if implicit bias influences OSC decisions has only examples of inconsistent enforcement from which to glean clues. It should not, then, be surprising when that public responds skeptically to OSC selecting a Black woman to be the first political appointee it has targeted with an MSPB complaint in 20 years. Nor should it be surprising if that skepticism surfaces again when, soon thereafter, OSC reprimands another Black woman for conduct it declined to reprimand a white man for committing. Whether or not implicit bias is at work here, the subjectivity of OSC’s approach is a problem that makes these questions inevitable.

This subjectivity was also evident when OSC treated the “tea party” and the “resist” movements differently.

During the Obama administration, OSC declared that federal employees could engage in tea party activity at work without violating the Hatch Act, reasoning that the “tea party” is an “umbrella term” and not a “partisan political group.”²⁴ OSC chose a posture of willful blindness to the fact that the tea party is commonly understood to be a movement within the Republican Party.²⁵ Ultimately, the distinction between a movement within a party and the party itself is a matter of perspective about which people can disagree. But therein lies the problem.

OSC made a very different determination when it approached virtually the same question about the “resist” movement. Where OSC had given a movement on the right the benefit of the doubt that it was not actively supporting a candidate or party, OSC erred on the side of finding that a movement associated with the center and the left was “inextricably linked to the electoral success (or failure) of the president.”²⁶ OSC should have recognized that this asserted link to the electoral success of the president was a matter of opinion when it felt compelled to acknowledge that the term “resist” had a broader meaning that “generally referred to opposition to administration policies.”²⁷ Nevertheless, OSC declared that employees might be in violation of the Hatch Act if they were using the amorphous term “resist” at work. OSC found that employees’ use of another phrase, “Black Lives Matter,” did not implicate the Hatch Act, emphasizing that the phrase was an “umbrella term” for a movement that had no leader, involved a variety of groups, and began organically online—factors OSC did not acknowledge applied equally to the phrase “resist.”²⁸

In the same guidance in which OSC addressed the “resist” movement, OSC announced that an employee might be violating the Hatch Act by merely discussing policy issues without referencing a candidate.²⁹ As you know, POGO objected to this guidance at the time, cautioning that discussions not tied to a political candidate or election are merely the free expression of disagreement with a policy, which the Hatch Act expressly authorizes. We added: “This new guidance puts OSC in the position of having to create a subjective, impossible-to-defend test to decide when policy issues are sufficiently partisan—a role the Hatch Act does not create for OSC.”³⁰ These inconsistent outcomes, a direct product of OSC’s approach, also sparked suspicions from Congress. Then-Representative Elijah Cummings (D-MD) wrote, “The new guidance is so out of step with OSC’s past interpretations of the law that it raises concerns about whether OSC itself is engaging in inappropriate political activity.”³¹

OSC’s handling of other matters has been similar. For example, OSC rejected a complaint against White House press secretary Sarah Huckabee Sanders, a white woman.³² On Election Day in 2018, Ms. Sanders issued an official statement touting public support for President Trump and declaring, “He has made the choice clear to the American people: Tonight, we can continue down the path of American prosperity and security or we can go backwards.”³³ At the time, polling sites in every state in the nation were still open, and polls in the western regions of the country would remain so for hours more.³⁴

The lack of objective standards and uniform application keeps federal employees guessing about what conduct is permitted, and it will continue to spur questions about implicit bias or other improper motives. Rather than issuing defensive explanations for inscrutable decisions, OSC can do better by adopting objective standards and applying them uniformly.

Conclusion

I urge you to take up the challenge of making OSC part of the solution in a country that has been plagued by systemic racism since its founding. Instead of denying the possibility of a problem, OSC should appreciate the reasonableness of the public’s concern about a Black woman being the first political appointee in two decades that OSC chose to prosecute. OSC should also be mindful that the last case in which the office prosecuted a political appointee prior to Ms. Patton—21 years ago—involved a political appointee who is Native American, William Yellowtail.³⁵

The guilt or innocence of Ms. Patton, Secretary Fudge, and Mr. Yellowtail is beside the point. Why OSC did not similarly file MSPB complaints against other political appointees is the question that OSC has not answered satisfactorily. Whether or not implicit bias drove OSC’s past actions, you can offer the public no assurances that implicit bias will not drive future actions if you are not on guard against it.

As I indicated in my May 6 letter, POGO remains available and eager to help.

Sincerely,

Danielle Brian

Executive Director