Office of Special Counsel informs Biden that HHS Sec. Becerra violated Hatch Act with endorsement of Democratic senator

April 20, 2023
Ben Marquis

Critics have accused President Joe Biden and his administration of ignoring or violating various federal laws and regulations whenever they see fit, and there is some evidence to support such an assertion.

President Biden was informed on Tuesday that Health and Human Services Sec. Xavier Becerra violated the Hatch Act, which strictly prohibits political activities and speech from government officials when acting in an official capacity, the Conservative Brief reported.

That was the conclusion of the Office of Special Counsel in regard to a complaint filed against Becerra over his apparent endorsement and expression of support for Democratic California Sen. Alex Padilla's re-election while attending an event in 2022 in his official capacity as HHS secretary.

Hatch Act violation

Fox News reported that President Biden was informed of Sec. Becerra's violation of federal law via a letter sent by Special Counsel Henry Kerner.

The violation occurred when Becerra announced to the crowd at an awards ceremony that he intended to vote for the re-election of Sen. Padilla, who had been appointed by California Gov. Gavin Newsom to fill the U.S. Senate seat left vacant by Vice President Kamala Harris when she was elected in 2020 alongside Biden and was sworn into office in 2021.

In Kerner's letter to Biden, he wrote, "OSC concluded that Secretary Becerra violated the Hatch Act by expressing support for Senator Alex Padilla’s reelection while speaking in his official capacity at the Congressional Hispanic Caucus Institute Annual Awards Gala on September 15, 2022."

"The Hatch Act prohibits federal employees from using their official authority or influence to affect the outcome of an election. In delivering his speech, Secretary Becerra impermissibly mixed his personal electoral preference with official remarks," he continued. "While federal employees are permitted to express support for candidates when speaking in their personal capacity, the Hatch Act restricts employees from doing so when speaking as a government official."

"With a presidential election approaching next year, this report offers an opportunity to deter violations by reminding federal employees at all levels of the Hatch Act’s restrictions. Accordingly, I submit to you the enclosed report, together with Secretary Becerra’s response, for your consideration," Kerner concluded.

Staffer overheard saying, "No, no, you can't say that."

The attached report explained that Sec. Becerra had attended the Gala to receive an award for his work at HHS and delivered prepared remarks about his official duties that had been reviewed and approved ahead of the event by an ethics attorney at HHS. Yet, when presented with the award by Sen. Padilla, Becerra went off-script to express his personal support for the senator's re-election campaign.

Becerra said, "To my brother, my friend, and Senator, and someone I will be voting for in a little bit more than a month, Alex Padilla, thank you so much, Senator, for being there for all of us. We are proud to have you as our Senator."

The OCS report noted some of Becerra's HHS staffers who were present and recording his remarks were overheard to audibly gasp and say, "No, no, you can't say that." It further highlighted how Becerra had been fully and repeatedly advised and trained with respect to the Hatch Act's prohibitions and should have known better than to offer up his political endorsement while attending an event in his official capacity.

Becerra "received additional counseling," vows not to violate Hatch Act again

The OCS report also included a copy of an emailed explanation it had received from Sec. Becerra, in which he stated, "I did not intend to use my official authority or influence for purpose of interfering with or affecting the result of an election, and I regret this inadvertent violation."

"While I did not realize at the time that my off-the-cuff remarks concerning my personal voting intentions were in violation of the Hatch Act, I now understand why they were not permitted," he added. "I have received additional counseling on the Hatch Act from the Department's Ethics Division, and I will work hard to ensure that there are no future violations."

The letter from Kerner made reference to 5 U.S.Code Sec. 1215(b), which deals with "disciplinary action" for employees in "policy" positions who violate the rules, but makes no recommendation on punishment and simply leaves it to the discretion of the sitting president what, if any, "appropriate action" should be taken.

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