Did NCUA's Hood Violate Hatch Act? Experts Are Split

It’s clear that NCUA Chairman Rodney Hood is a huge fan of President Donald Trump.

He said so in a video posted to the official White House Twitter feed and its Facebook page. The video clearly identifies Hood as NCUA chairman.

What is less clear is whether Hood may have crossed the line and ran afoul of a federal law that limits political activities of federal employees.

In October, Hood, a Republican Trump nominee, appeared on the White House Twitter feed praising Trump, saying that he had done more for African Americans than any other president.

The comments following the post were brutal. One said it simply was embarrassing, while another said, “Thanks for the good laugh.”

Others were racist, while some were supportive of Hood’s comments.

“Amen! And, he wants to do more. We must support him,” one person wrote.

The NCUA refused to discuss the video – declining to address the issue in a list of questions about whether the chairman had sought advice on if the video could violate the Hatch Act, the federal law that limits the public political activity of federal officials.

Sen. Sherrod Brown of Ohio, the ranking Democrat on the Senate Banking Committee, blasted Hood in a letter and subsequent hearing featuring banking regulators. He charged that Hood did not understand the NCUA is an agency independent of the Trump Administration.

Hood simply responded that he would always carefully guard the independence of the NCUA.

CU Times asked six experts to review the October video; three said the statement deserved a review by the Office of Special Counsel, the office charged with Hatch Act enforcement, and three said the video was permissible under the law.

Two of the key reasons why three experts said they believe Hood did not violate the Hatch Act were: The statement was posted to the official White House Twitter feed and not one operated by the Trump campaign, and Hood did not explicitly ask viewers to reelect the president.

The division among the experts might have said as much about the state of Hatch Act enforcement as it did about Hood’s video.

In describing the Hatch Act, the Congressional Research Service said in a 2016 report that the law does not allow federal employees to use their “official authority or influence for the purpose of interfering with or affecting the result of an election.”

And the OSC, the government agency charged with enforcement of the law, has said any partisan political comments on social media must be posted to an employee’s personal email account.

In the most high-profile recent case, the OSC urged President Trump to fire Kellyanne Conway, his White House counsellor, for repeated Hatch Act violations.

Trump has refused to fire Conway, thus ignoring the OSC’s attempt to enforce the law.

So did Hood’s video run afoul of the Hatch Act?

There does not appear to be a clear-cut answer. The six experts CU Times consulted agreed that the NCUA is subject to the law. But they disagreed over whether Hood crossed the line.

“Federal employees can praise the president’s policies and their supposed impact on Americans or any specific group of Americans – they just can’t say re-elect the president because of these policies,” Brett Kappel, a campaign law attorney with Akerman, said.

Kappel, who has worked for three presidential campaigns and a host of congressional ones, added, “And, of course, federal employees couldn’t appear in a commercial for the campaign.”

Another attorney disagreed, saying that Hood had crossed the line.

“Hood uses his official title and touts Trump for successes – job creation, for example – that do not reflect the work of his agency, in an apparent effort to bolster Trump’s appeal to African Americans,” said Mark Cohen, who served as the principal deputy special counsel at the OSC during the Obama Administration.

Cohen, a member of the board of the Government Accountability Project, a private watchdog group, said because we are in a presidential campaign cycle, the video could be viewed as violating the prohibition against working to influence the result of an election.

The issues appear to be subtle, other experts indicated.

“The subject matter of the video does not seem to align with Mr. Hood’s duties,” said Delaney Marsco, the legal counsel for ethics at the Campaign Legal Center, another watchdog group. “That strikes me as more of a political message.”

But Marsco also pointed out the video was not posted to a Trump campaign website, instead appearing on the official White House Twitter feed and Facebook page.

“It’s not straightforward,” said Nick Schwellenbach, a senior investigator at the Project on Government Oversight and the former communications director at the OSC.

He said the video clearly is intended to put Trump in a positive light, but that that by itself does not constitute a Hatch Act violation. He said it would be a “slam dunk” if Hood had called for the reelection of the president.

“He didn’t do that,” Schwellenbach added. “But that still doesn’t mean it’s kosher.”

It was issued during the campaign and Hood is identified by his official title, he said.

“It’s a reasonable inference that this video is motivated by partisan politics and is an effort to advocate for Trump – the candidate – in the lead up to the 2020 election,” he said. “OSC should investigate.”

But Jenna Grande, press secretary at Citizens for Responsibility and Ethics in Washington, D.C., said since Hood was not pushing for any specific political action, but rather Trump’s economic policies, the video appeared to fall outside the Hatch Act.

Kathleen Clark, a law professor who specializes in government ethics at Washington University in St. Louis, agreed that since the video did not make a reference to the upcoming presidential election, it is unlikely to have violated the law.

But she said, “This administration seems to require officials to flatter the President,” adding, “Hood may have been complying with this requirement. It’s not a good look.”

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Hatch Act Cans and Can’ts

The Hatch Act specifies the types of political activities that federal employees may engage in. It specifies two categories of employees – ones that are more restricted and ones that are less restricted. The NCUA would fall into the category of less restrictive agencies.

Can:

• Park car with a political bumper sticker in a government parking lot.
• Listen to a radio with a political message or read a political book while at work.
• Have a television tuned to cable news networks.
• Register to vote and participate in voter registration drives.
• Vote.
• Contribute to a candidate.

Can’t:

• Wear a political button to work.
• Have a screen saver or picture with a political message on office desk.
• Solicit political contributions.
• Run for election to a partisan political position while employed.
• Invite subordinates to a political event.
• Host a political event.

Sources: Office of Special Counsel, Congressional Research Service