State of Minnesota, Department of Jobs and Training v. Merit Systems Protection Board
858 F.2d 433
8th Cir.
1988
Check Treatment

*1 determining grant the Un- comply with request Northwest ion’s letter, impose a necessary it was

penalty Northwest. judgment affirmed. MINNESOTA, DEPART- OF

STATE AND

MENT OF JOBS

TRAINING, Appellees, D.C., Schneider, B. Washington, Martha appellant. PROTECTION MERIT SYSTEMS Hamblin, Paul, Minn., Rebecca H. St. BOARD, Appellant. appellees. No. 87-5346. ARNOLD, Judge, Before and Circuit Appeals, TIMBERS,* Court of States and Circuit United ROSS Senior Eighth Circuit. Judges. April 1988.

Submitted ROSS, Judge. Senior Circuit 4, 1988. Decided Oct. (the Systems Board The Merit Protection Board) Opinion appeals from district court’s En Banc Granted Rehearing 16, 1988. its the Board abused determination Nov. Vacated removal of by ordering the Kehoe, upon finding that Kehoe

Thomas J. Activi- willfully the Hatch Political Act), (Hatch 1501- 5 U.S.C. ties §§ political of- federally in a fice while program. agreeing While funded political campaign vio- that Kehoe’s Act, court ruled the district lated such violation was not willful for his removal justification therefore a careful review After arguments record and briefs we reverse the decision parties court. BACKGROUND the Minne- while an Security of Economic Department sota (DES), for election Thomas ran and lost. Legislature State * TIMBERS, designation. States Senior H. United WILLIAM Circuit, sitting by Judge for the Second Circuit *2 supplied Kehoe warning, OSC ap- buttress its Kehoe was on During candidacy, opinion Spe- copy of the Board’s posi- with a from his state of absence

proved leave Daniel, 15 M.S.P.R. cial Counsel employment. tion (1983) validity of the rejecting the 1982, DES the Director of August of Kehoe day, the same sub- holding. On Special Counsel informed the Office requesting application with DJT mitted an filed to run for (OSC)1 Kehoe had 25, July during campaign. On a leave Sep- On partisan candidate. election as a Em- 1984, Department of the Minnesota Ke- 3, 1982, offically warned OSC tember Kehoe that al- Relations cautioned ployee political activities that it considered hoe obligat- Minnesota was though the State of Act, notwithstanding subject to grant him to ed under Minnesota statute state-approved on a the fact that was office, the state pursue political leave to Kehoe, however, main- leave of absence. actions the Board no control over what to apply did not the Hatch Act tained that pursuant to the Hatch Act. might take rul- district court of a federal him because ing by Judge Miles Lord announced his Kehoe Sometime before (D.Minn.1980), F.Supp. Policy its and Pro- candidacy, DJT amended inapplicable to Act held the Hatch which employees that Manual to advise cedure approved leave while employees on state that the position had taken the the Board political office. running for employee while on applied to an Hatch employment with a leave of absence 21,1983, Kehoe the OSC sent On October Moreover, the Manual advised that, due to his the DJT. informing him a letter it has warned that employees OSC confusion about apparent violations, Johnson, prosecute had decided ruling in OSC would court’s discipli- leniency not seek in removal from state exercise and could result to which However, with notwithstanding any him. obli- nary action employment, Kehoe strong language, the OSC warned under Minnesota law to gation DJT had Johnson, contrary language political pursue grant leaves absence employee apply does to an the Hatch Act office. any future and while on leave absence warnings, Kehoe took a leave Despite all activity proscribed political unsuccessfully ran as a and of absence as a willful violation be construed would elections. Kehoe re- in the 1984 candidate removal from state result in Kehoe’s following position with DJT turned to his 1985, 20, defeat, February DJT and on 1984, again Kehoe ran for a seat parti- Kehoe had been a advised OSC that Legislature. Pursuant office in 1984. political san candidate 43A.32, 2(c) subd. Minnesota Statute § instant ac- complaint filed the OSC employees to (1984),2 state which allows 1985, charging that on November partisan to run for take leaves of absence for a a candidate Kehoe had been office, Department of Jobs and political principally employed office while (DJT) (successor agency to the Training funded agency federally state DES) request for again granted Kehoe’s Hatch Act. in violation of the programs pursue a seat in the state in order to hearing on the July after On legislature. (ALJ) judge merits, law the administrative concluding recommended decision issued a 18, 1984, Kehoe OSC advised On June knowingly willfully and Kehoe had he was still a that his while . his removal Hatch Act and that To the Hatch Act. violate would any classified in the ed officer or Special is the The Office of the Counsel 1. prosecutes alleged investigates which service shall: (c) granted Upon request, Act violations. leave of ab- be candidate, during becoming or sence 43A.32, 2(c) states: subd. § 2. Minn.Stat. candidacy, pub- elected the course of of absence for elected Subd. 2. Leaves officials, lic office. Except provid- as herein candidates. On basis for the Board’s warranted. Feb- conclusion that re- was warranted, 27, 1987, moval issued district court ruary required adopting recommended was to defer to that the AU’s conclusion order being re- within and ordered that be of the Board. decision *3 thirty Only if position days the Board’s conclusion had no rea- from within moved refused to com- sonable basis would it the Board’s order. DJT constitute an abuse of and this of discretion. the Board’s order action ply with ensued. Applying principles, these turn we now 30, 1987, petition arguments a the parties DJT filed to raised the on

On March appeal. primary argument decision in the The DJT’s is review Board’s for for Dis- that Court the Kehoe’s removal was be- United States District unwarranted 23, 1987, the cause Kehoe did not willfully trict of Minnesota. On June violate the reversing Instead, argues court issued a decision Act. the DJT district that remanding ruling part Kehoe reasonably the Board’s relied on the district the issuance of an to the for court’s ruling the case Board Johnson v. Cushing that consistent with the apply and order the Hatch not Act does em- to state DJT nor finding neither Kehoe ployees granted court’s that who have been of leaves violated the Hatch willfully knowingly or absence. (D.Minn.1987). F.Supp. 666 1305

Act. Notwithstanding broadly the court’s stat- appeal This followed. ruling Act, relating ed to the Hatch John- DISCUSSION Cushing rights son v. was a civil case under 42 U.S.C. 1983 and not a Hatch § of 5 U.S.C. 1505 the Under § adjudication. Johnson, a em- Act, jurisdic- plenary the has Board ployee brought rights a civil action the Hatch Act tion to determine whether Department of Economic Se- and, hearing, a after the has been curity claiming its Commissioner is authorized to determine whether Board improperly grant the DES failed to removal from em- the violation warrants 1505(2). request job for of leave absence from 5 The ployment. U.S.C. § political order to Board may seek office. The Board’s determination be reversed party was not to the Further- only reviewing the court determines a action. when more, rights its discretion. Johnson claimed that his civil that the abused Okla- the DES him Civil Service were violated when removed homa United States 145-46, Comm’n, 127, actively 67 from when cam- U.S. S.Ct. office, 554-55, (1947). 544, paigned political 91 L.Ed. 794 notwithstand- ing approved his failure to secure an summary judgment On cross motions court, motion of absence. The district on a case court in the instant found summary judgment alleg- the DES for to remove that the Board’s decision claim, ing DES’s rejected failure to state the accordance with law and effectively argument the Hatch Act accordingly the Board’s removal reversed any prohibited reviewing ap decision order. this on deter- office. The court independent this court must render an peal, explanation mined “the Hatch without same on the basis of the adminis decision Act, persons applies presently while it employ the same trative record and stan Department Eco- employed by the State of dard of review as that before district Security, apply persons nomic does not Fayetteville First Nat’l Bank court. of absence, granted have leaves of who been (8th Cir.1974), Smith, 508 F.2d statutory right to secure or who have a denied, 421 95 S.Ct. cert. U.S. leaves of absence from demand (1975). This court must L.Ed.2d deter running for Department purpose of for the an mine whether there has been abuse of partisan political office.” at 611. Id. presumption without undeniably is decision decision of the district court correct. Act. long interpretation incorrect of the Hatch was a reasonable Id. As there factors, legislative history including of number of review the the absence A of office, the Hatch makes it un- provisions political coloring elected employ- mistakably clear that covered state employee’s passive role election in the prohibitions subject ees are expending during seeking in not or funds regardless During of leave status. campaign, superior and the fact that no hearings proposal to on a extend propriety questioned position had of his government employ- Act to state and local his state as an elected official relation to ees, Congress specifically considered and employment. have ex- rejected provision which would espe- The facts in the instant case are prohibitions empted the Act’s those egregious cially consequently distin- leave of ab- candidates who taken a *4 guishable Hayes from those involved in Cong.Rec. pay. sence without 86 2872-75 This second Yoho. is the time that Kehoe (1940). legislative history of the The taken a of for has leave absence to run that the intent of the stat- further discloses political office. When Kehoe filed an affi- candidacy prohibit partisan by ute was to partisan candidacy davit of in the employee had not re- covered who Special officially of the Office Counsel signed employment. his or her See from him his in candidacy warned that was viola- (1940). Thus, Cong.Rec. 86 9447 it is clear response Act. tion In the the legislative history statute and Kehoe’s that he statement relied on John- prohibited that a is employee covered state supra, v. Kehoe son OSC wrote partisan for office in a it disciplinary that would not seek action election, approved if on leave without even against him candidacy, for his 1982 but pay. officially him warned a second time that DJT also relies on the Board's decisions political activity future would constitute Special v. 16 M.S.P.R. Hayes, Counsel willful violation of the Hatch necessi- (1983), Yoho, Special v. Counsel tating his removal from state (1983) support for of M.S.P.R. the Notwithstanding warnings, the OSC’s proposition that Kehoe’s removal is unwar- again Kehoe filed for partisan candi- ranted his the Hatch because violation of dacy legislature. in the Minnesota Kehoe’s knowing. Hayes, Act was not willful or In attitude is indicated letter to OSC employee’s the Board held that an reason- informing impending of his candida- them attorney’s reliance on his able erroneous cy, “[y]ou might your file want dust off candidacy advice office me; again thinking becoming I on am of did not violate the Hatch Act did not war- Legis- rant his dismissal since the candidate violation was knowing. Hayes, not willful or In how- In response, again lature.” OSC informed ever, not the advice was contradicted candidacy remaining Kehoe that his while the Board or the state em- which payroll on the state would violate ployed began campaigning. him before he Act. copy OSC enclosed a Kehoe, employee Hayes, unlike was opinion Special Board’s Counsel v. Dan- Special not notified that the Office of iel, 15 M.S.P.R. 636 in which it candidacy Counsel viewed his as a violation strongly rejected holding as Johnson * * * until after he ran and lost the election. “ipse pronouncement dixit totally disregards prior consistent adminis- similarly distinguishable. Yoho Moreover, rulings.” trative at Id. 638.3 Yoho, the Board held that the dismissal of employer Kehoe’s own warned him that the employee not was warranted based on candidacy Board viewed his on un- good while employee’s faith belief paid of nonpartisan leave a violation the Hatch and therefore was could in his violation of Hatch Act. The which result removal. acknowledged Board found his belief reasonable based on under oath that he had been agreed employee this 3. The district court in case with the instead that a covered state who runs Cushing partisan political Daniel Board’s for Act, office the Hatch Johnson violates reasoning, holding approved pay. and declined to follow its even if without on interpreters of authority reliable and authoritative prosecutorial of OSC’s warned agencies. risk. clearly understood the federal law than administrative and that Apparently this belief was incorrect. To circumstances, find we light of these thinking, entirely it reason- my way of Board’s discretion it was within rely for the here to able involved knowing- willfully and that Kehoe conclude reported interpreta- federal-court campaigning byAct the Hatch ly violated governing statute. Mr. Kehoe while a political office consequences should not to bear the have was, therefore, war- his dismissal and that Court, later, years of the fact that this has on Kehoe’s reliance ranted. determined that the decision on which he warnings the OSC’s disregard paid to correctly relied was not decided. a know- reasonably characterized as be can the risk that the OSC ing assumption of today the Court’s action seems Because against him for violat- charges would file degrada- unjust both and an unwarranted good faith Act rather than a ing expo- tion of the status federal courts Spe- decision. on the See reliance law, of federal I dissent. sitors Daniel, M.S.P.R. supra, 15 cial Counsel at 638. *5 properly ex- the Board conclude that

We it ordered the discretion when

ercised its state Kehoe from of Thomas J.

removal finding knowing- he Act when he became ly violated SHADLE, Appellee, Luther Marion We ac- in a election. a candidate deter- the district court’s cordingly reverse contrary. to the mination SUPERWOOD CORPORATION, Appellant. ARNOLD, dissenting. Judge, Circuit No. 87-2632. when Mr. deciding Kehoe was Appeals, Court of States United again, to run

whether for office he had two Eighth Circuit. pieces legal relevant information before him. He knew that the United States Dis- 14, 1988. June Submitted Minnesota, trict Court for the District of 6, 1988. Decided Oct. jurisdiction, ruled, his own in a case Rehearing En Banc Denied Rehearing and involving very for which 7, 1988. Dec. worked, that his would not be unlawful. (D.Minn.1980).

F.Supp. 608 He also knew Systems

that the Merit Protection Board

thought wrong. Johnson was This Court upholds

now the Board’s determination

that Mr. Kehoe’s violation of law was “will-

ful.” quarrel I have no respectfully

I dissent. proposition that Johnson was decided, that the Board’s wrongly

fact vio- Hatch Act was

legal position —that separate correct. in this case—is lated however, is important question,

and more can be rea- Mr. Kehoe’s conduct

whether today, I Until

sonably classified as willful. more courts were that federal

had believed