Removal is the only penalty authorized for violation of the Hatch Act, under 5 U.S.C.S. § 1505. The Merit System Protection Board (MSPB) has plenary jurisdiction under § 1505 to determine after a hearing whether the violation warrants the removal of the officer or employee from his office or employment. The Board considers whether removal is appropriate on the basis of seriousness of the violation. The Board takes into account all relevant mitigating and aggravating factors, including: (1) the nature of the offense and the extent of the employee’s participation; (2) the employee’s motive and intent; (3) whether the employee received the advice of counsel regarding the activities at issue; (4) whether the employee ceased the activities at issue; (5) the employee’s past employment record; and (6) the political coloring of the employee’s activities. The decision as to whether removal is warranted is a matter of administrative discretion. Thus, a reviewing court will not reverse the Board’s decision unless it concludes that the decision constituted an abuse of discretion or was not in accordance with the law or was unsupported by substantial evidence or was obtained without procedures required by law, rule or regulation. The penalty provision in the Hatch Political Activity Act, 5 U.S.C.S. § 1506(a), clearly gives the employer the choice of removing the employee in question “from his office or employment,” or forfeiting federal funds equal to two years’ pay at the rate or amount the employee was receiving at the time of the violation. Further, for 18 months after his removal from employment, federal funds also will be forfeited if the employee is appointed to an office or employment with a state or local agency within the same state. With respect to federal employees, 5 U.S.C.S. § 7326 provides that an individual who violates the Hatch Act, shall be removed from his position, and the funds appropriated for the position from which removed may not thereafter be used to pay the employee or individual. However, if the board finds by unanimous vote that the violation does not warrant removal, a penalty of no fewer than 30 days’ suspension without pay shall be imposed by direction of the board. Since, removal is the only penalty which may be imposed on a state employee in violation of the Hatch Act and if the Merit Systems Protection Board determines that removal of a state employee is not warranted, it may not impose any penalty. Moreover, a state agency need not remove a violator unless it wishes to avoid the loss of federal funding. In contrast, 5 U.S.C.S. § 7326 requires the board to impose a penalty on federal employees, consisting of not less than 30 days’ suspension without pay, even where the board determines that the violation does not warrant removal. In other words, although a state employee may avoid a penalty for violating the Hatch Act, a federal employee cannot avoid being penalized.
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