The United States Office of Special Counsel (OSC) notified President Joe Biden on Tuesday that Health and Human Services (HHS) Secretary Xavier Becerra was found to have violated the Hatch Act with a 2022 speech that advocated for political activity while speaking in his official capacity.
According to Special Counsel Henry Kerner, "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 OSC's letter to Biden notifying him that a member of his cabinet had run afoul of the law explained the violation:
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. 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.
Specifically, Becerra "thanked Senator Padilla for the award and, deviating from his prepared remarks, stated, '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.'"
As part of the OSC's report, it was noted that a member of Becerra's staff accompanying him for the event "can be heard gasping after the Secretary’s comments about Senator Padilla and saying, 'no, no, you can’t say that.'"
When OSC asked Becerra about his comments as part of the investigation, he tried to characterize his remarks about Padilla as "off-the-cuff" and only showed a "longstanding personal relationship" between the two. "I certainly am proud of Alex Padilla and his accomplishments and said so from the perspective of someone who has witnessed many of his achievements," Becerra also told OSC. According to the HHS secretary, he didn't think of his remarks "as conveying anything more than what I as a responsible citizen would be doing in the near future."
The Office of Special Counsel, however, points out in its report to President Biden that Becerra's explanation did not pass muster:
Secretary Becerra crossed the line by conveying his electoral support for the Senator. Not only did Secretary Becerra express pride at having Senator Padilla as his Senator, he referred to him as “someone [he] will be voting for in a little bit more than a month….” In doing so, Secretary Becerra violated the Hatch Act’s prohibition against using his official authority or influence to affect the result of an election.
Moreover, Secretary Becerra should have known that the Hatch Act prohibited him from expressing support for Senator Padilla’s reelection. Since joining HHS, he has participated in comprehensive training on the Hatch Act, including a presentation from the White House Counsel’s Office just three months before the Gala. His statement was so obviously concerning that a member of his own staff, present at the Gala, gasped and said, “no, no, you can’t say that” immediately after hearing it.
Lastly, OSC considered Secretary Becerra’s explanations as to why he made the remarks at issue. Because Secretary Becerra is well‐informed about the Hatch Act’s prohibitions, he knew or should have known that his “longstanding personal relationship” with Senator Padilla did not exempt him from the Act’s prohibition about expressing, even extemporaneously, his electoral support for the Senator in an official speech. Similarly, this belief that his expressed intention to vote for Senator Padilla was merely the statement of a “responsible citizen” is belied by the fact that his speech was clearly conducted in his official capacity as HHS Secretary. Therefore, Secretary Becerra’s proffered explanations do not serve to mitigate the issuance of this Report to the President.
In his official response to the OSC, Becerra said that he "will work hard to ensure that there are no future violations" of the Hatch Act, though his previous attempts to justify the Hatch Act violation at issue call that claim into doubt.
OSC reminded Biden in its report that, "[w]ith 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" and reminded the president that "[v]iolations by high level officials that go unaddressed particularly undermine the viability of the Hatch Act and its purpose of ensuring a federal civil service free of partisan political influence."
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