Alexander v. Merit Systems Protection Bd.

• Decision Date: 21 January 1999
• Docket Number: No. 97-2131,97-2131
• Parties: Robert D. ALEXANDER, Plaintiff-Appellant, v. MERIT SYSTEMS PROTECTION BOARD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 474

165 F.3d 474

Robert D. ALEXANDER, Plaintiff-Appellant, v. MERIT SYSTEMS PROTECTION BOARD, Defendant-Appellee.

No. 97-2131.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 29, 1998.

Decided Jan. 21, 1999.

George V. Warren (argued and briefed), Lansing, MI, for Plaintiff-Appellant.

Eric D. Flores (argued and briefed), U.S. Merit Systems Protection Board, Washington, DC, Michael H. Dettmer, U.S.Atty., Office of U.S.Atty. for Western District of Michigan, Grand Rapids, MI, Janet Reno, US Atty. General, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendant-Appellee.

Before: GUY, CLAY, and GILMAN, Circuit Judges.

OPINION

RALPH B. GUY, JR., Circuit Judge.

Plaintiff, Robert Alexander, appeals the district court's decision affirming the order of the Merit Systems Protection Board (Board) that he be removed from his employment with the State of Michigan for violation of the Hatch Political Activity Act (Hatch Act), 5 U.S.C. § 1502(a)(3). The Board found plaintiff violated the Hatch Act by being a candidate in a partisan election while principally employed with the Michigan Department of Social Services (DSS) in the Medicaid Program. ¹ On appeal, Alexander argues that the district court failed to properly determine whether the Board's decision was in accordance with law and not an abuse of discretion. Alexander also argues that his due process rights were violated because the Hatch Act does not adequately define who is covered, does not exempt employees who take an unpaid leave of absence, and does not define the penalty of removal. ² Finally, Alexander claims he was denied equal protection because the Hatch Act imposes more severe penalties on state employees than federal employees. After careful review of the entire record and the arguments on appeal, we affirm.

I.

Alexander was employed as a Department Analyst with the Michigan DSS, first in the Energy Services Division and then in the Medical Services Administration. The parties stipulated that (1) the DSS is an executive agency of the State of Michigan, (2) when plaintiff declared his candidacy in May 1992 he was acting as a project officer for the Medicaid Program, and (3) the Medicaid Program is 50 percent funded by reimbursement from the United States Department of Health and Human Services.

In March 1992, Alexander learned that the democratic State Representative for the 53rd District would not run for re-election and considered becoming a candidate. Plaintiff had prior experience with partisan politics and was familiar with the Hatch Act. He knew that the Act prohibited covered state employees from becoming candidates in partisan elections, but questioned whether he was a covered employee. The Act defines a covered employee as an individual employed by a state or local agency "whose principal employment is in connection with an activity which is financed in whole or part by loans or grants made by the United States or a Federal agency," 5 U.S.C. § 1501(4) (emphasis added). Federal medicaid funding was universally referred to as a "reimbursement" within the DSS. Alexander reasoned that if the reimbursements were not loans or grants, he would not be a covered employee and, therefore, the Hatch Act would not prohibit him from participating in the election.

Although Alexander inquired from a number of sources whether a state employee whose position is partially funded by federal reimbursements was covered by the Hatch Act, he was not satisfied with any of the answers he received. Plaintiff's supervisor, Ed Kemp, thought Alexander was covered by the Act and suggested he call Human Resources. On April 9, 1992, Alexander contacted Paul Servais of the DSS's Office of Human Resources, who told him he was covered by the Hatch Act and could not run in a partisan election. Alexander also called the Michigan Department of Civil Service for information on both the Hatch Act and the state civil service requirement that he take a 60-day unpaid leave of absence to run for office. He received a copy of a discussion paper addressing the Hatch Act, which did not mention reimbursements, but commented that the Act had 3,000 confusing contradictory rules.

In late April 1992, plaintiff again specifically asked Servais whether a "reimbursed" employee was covered by the Hatch Act. Although Servais said he was covered, Alexander was not satisfied by this response because Servais could not provide a written explanation verifying his opinion. With that, Servais suggested that Alexander could call Heidi Weintraub, who was his contact at the Office of Special Counsel (OSC) in Washington, D.C. Although he did not have any prior contact with Servais in particular, Alexander distrusted Human Resources generally because he had successfully grieved an earlier demotion on the grounds that Human Resources had failed to follow the proper procedures.

Alexander called Weintraub, not knowing that the OSC prosecuted violations of the Hatch Act, ³ and identified himself as an employee of Michigan's Medicaid Program. Weintraub responded that he was covered by the Act and would have to resign to run in the primary. When Alexander questioned whether medicaid "reimbursements" were "loans or grants" for purposes of the Act, Weintraub responded that he was covered and that was all he needed to know. Alexander called Weintraub again several days later (1) to request a citation to verify that medicaid employees are covered by the Act, and (2) to ask if he would still be covered if he took an unpaid leave of absence. Weintraub unequivocally answered that he was covered by the Act, that state-mandated leave policies were irrelevant to the Act, and that she did not have to provide him with any citations to verify this information. Weintraub nonetheless offered to send him a booklet that would answer his questions.

Alexander received a booklet entitled "Political Activity and the State and Local Employee." Alexander did not find an answer to his question, although he admitted he did not read all of it. An "important note" on the first page of the booklet warned that ignorance of the law does not excuse a violation of the Hatch Act and explained that an advisory opinion could be requested from the OSC. While the booklet listed "public health" as a program that frequently receives federal funds, it did not specifically list medicaid. ⁴ Despite the information provided in the booklet concerning the financial penalties that may be imposed on a state employer under the Hatch Act, Alexander assumed DSS would only be penalized in an amount equal to twice his salary for the one month before his state-mandated leave of absence began. As a result, he did not believe DSS would remove him from his position if he was found to have violated the Act. Relying on the failure of Servais and Weintraub to verify that he was a covered employee, Alexander concluded that it was uncertain whether the Hatch Act applied to him and decided to "run and take a chance on an unclear situation."

On May 11, 1992, Alexander filed his nominating petition to become a candidate. The next day, Alexander called John Sorbet, a DSS federal funding analyst who had been on vacation, to ask about medicaid funding. Sorbet explained that federal medicaid funding is received in the form of a "quarterly grant award." While this information, received from someone outside Human Resources, indicated that medicaid funding was by grant and, therefore, meant he was a covered employee, Alexander disregarded this information as well. About a week later, Alexander told Servais that he had decided to run, explained that he disagreed with Weintraub's opinion, and indicated that the issue might end up in court. Within a few weeks, Servais wrote to the OSC to advise them that Alexander intended to be a candidate in the partisan primary election to be held on August 4, 1992.

On July 23, 1992, OSC investigator Butch Perkins met with Alexander for an hour, explained the Hatch Act to him, and conducted an interview. Alexander complains that Perkins did not offer to "drop" the investigation if he withdrew from the campaign and implies that he would have taken such an offer at that point. Alexander lost the primary a few weeks later and returned to work.

In July 1993, the OSC filed a complaint with the Merit Systems Protection Board alleging that Alexander's candidacy violated the Hatch Act. The Board assigned the case to an administrative law judge (ALJ), who permitted discovery, held hearings, and issued a 72-page recommended decision in July 1995. The ALJ recommended the Board find that Alexander had violated the Hatch Act as alleged, but that the violation did not warrant removal from his position. The ALJ concluded that from May 12 through August 4, 1992, Alexander was a covered employee and had campaigned for partisan political office. While the ALJ found Alexander had acted reasonably and responsibly in trying to determine his coverage under the Act prior to May 12, he nonetheless concluded as follows:

His continuing to campaign after learning from an independent DSS source that his office was funded by so-called quarterly grant awards constituted a knowing assumption of risk that a reasonably prudent person would not have taken and thereby established a knowing and willfull violation of the Hatch Act. The offense of campaigning for partisan political [office] is a serious offense. Nevertheless, the actions of the Petitioner significantly contributed to Respondent's assumption of the risk and accordingly such assumption ought not be a basis for Respondent's removal.

(Emphasis in original). The OSC filed exceptions to the recommendation, to which Alexander responded.

The Board's final decision and order, issued October 6, 1996, adopted in part and reversed in part the ALJ's recommended decision and found that Alexander's "violation [of the Hatch Act] was of such scope and effect as to...