MEMORANDUM

TO: FROM: DATE: RE: MEMBERS OF THE PUBLIC COA INVESTIGATIVE STAFF SEPTEMBER 10, 2012 POTENTIAL ILLEGAL ACTIVITY

This memorandum summarizes Cause of Actions (CoA) investigation into allegations of political activity at the Federal Aviation Administration (FAA), particularly during a meeting on May 23, 2012 at the Regional Flight Standards District Office (FSDO) in Seattle, WA. In this memo, we (I) summarize our investigation, (II) detail legally relevant facts, and (III) outline potential legal violations that occurred. It is our opinion that John Hickey engaged in Hatch Act violations as well as voter intimidation, interference and coercion practices that would subject him to criminal liability. We do not have sufficient facts at this time to determine whether John Hickey engaged in any prohibited personnel practices (PPP). Nor do we have any evidence that Ray Towles made any political statements during his meeting, though at least one e-mail reveals that a discussion of politics occurred during a meeting in which he may have presented before FAA employees. I. Summary of Investigation

On June 4, 2012, Cause of Action investigators received a tip that John Hickey and Ray Towles, both officers of the FAA, may have violated of the Hatch Act during a presentation at a Federal Aviation Administration (FAA) regional office in Seattle. 1 On June 6, 2012, an FAA insider confirmed that he received information from an FAA employee from within the Seattle FSDO. 2 At that time, the insider would not name the individual source due to the culture of retaliation that permeates the FAA, specifically at the administration level and I understand that leaves you without a corroborating witness. 3 On July 17, 2012, Cause of Action submitted a Freedom of Information Act (FOIA) request to the FAA requesting all records referring or relating to discussion of political activities by Ray Towles and John Hickey between May 1, 2012 and June 30, 2012. 4 Ten days after Cause of Action submitted a FOIA request, CoA investigators obtained an e-mail from an insider who claimed, After another employee showed the COA request to me the supervisor called me later this morning and I went down to his office. He printed out the COA and had a smile on his face. He said he was glad they got the FOIA because he didn't feel that legal counsel had done anything with the complaint. 5 On August 16, 2012, the FAA produced the requested documents to Cause of Action. II.
1

Facts

E-mail from Ed Jeszka to Carol Lerner (OSC) et al, Hatch Act (Jun 4, 2012, 12:39 PM), available at http://www.scribd.com/doc/95884131/Possible-FAA-Hatch-Act-Violation. 2 E-mail from Ed Jeszka to CoA Staff (June 6, 2012 16:54 EST) (on file with author). 3 Id. 4 Letter, CoA to Annjanette Cummins (FAA) (July 17, 2012) at 2 (on file with author). 5 E-mail from Rand Foster to Ed Jeszka [Attachment] (July 27, 2012 12:57 EST) (on file with author).

A. John Hickey and Raymond Towles travel to Seattle was funded by the American taxpayers and their presentation before the FAA regional office used federal resources. According to records obtained by Cause of Action investigators, Hickey and Towles were visiting the Seattle Field Office for Aviation Safety (AVS) business. 6 One e-mail states that Hickey was planning to be in Seattle on May 24 for the NextGen Advisory Committee meeting 7 a meeting described as a clear priority by President Obama. 8 Hickey stated he would like to take a few days to visit some of our offices. Ray Towles has agreed to accompany me for the visits. 9 Internal FAA calendar requests describe that Hickey and Towles meetings occurred in federal offices, particularly conference room number 122 at the Seattle Regional Office. 10 Hickey and Towles transportation in Seattle was paid for with U.S. Treasury funds as stated in an e-mail from Rick Domingo to John Hickey, We will accommodate your visits to the off-sites away from the Regional office. John, let us know if you need transportation to the NGAC meeting. Finally, let us know your arrival time so we can provide necessary transportation. 11 Records obtained from the Seattle regional office indicate that senior FAA staff explained to regional employees, [t]he meetings with John Hickey and Ray Towles scheduled for next week should be considered formal meeting[.] 12 Calendar requests also indicate that the meeting was an All hands meeting with Ray Towles (AFS-2) and John Hickey (AVS-2). 13 B. John Hickey and Raymond Towles discussed political activity during their presentation in Seattle. Immediately following the May 23, 2012 presentation by Hickey and Towles, employees at the FAA came forward to the regional supervisor with complaints about Mr. Hickeys political advocacy. Regional director Ken Snyder sent e-mails to several employees stating, Would you please send to me an email regarding Mr. Hickeys comments yesterday concerning the effects

6 E-mail, John Hickey to Rick Domingo et al cc: Ray Towles, John Allen, Field Office Visit, (Apr. 17, 2012, 12:09 PM EDT) (on file with author) [hereinafter April 17 Hickey E-mail]. 7 Id. 8 See NextGen WorkPlan, FAA, at 3 (Statement of Margaret Gilligan, 2010), available at http://www.faa.gov/about/office_org/headquarters_offices/avs/nextgen_workplan/media/avs_nextgen_workplan.pdf. 9 April 17 Hickey E-mail, supra note 7. 10 Calendar Request, Jeffrey Sumabat (ANM-200, Flight Standards Division) to Lynn Godfrey et al, Schedule for John Hickey (AVS-2) and Ray Towles (AFS-2F) Visit (May 16, 2012 14:04) (on file with author). 11 E-mail from Rick Domingo to John Hickey et al cc: John Allen et al., Re: Field Office Visit (April 18, 2012 10:17 AM) (on file with author) [emphasis added]. 12 E-mail, Chuck Sicotte (ANM/FAA) to Jim Phoenix (ANM-FAA), Dave A May (ANM/FAA) et al (May 17, 2012 16:51 EST), Meetings with AVS-2 and AFS-2 Next Week are Formal Meetings (on file with author) [emphasis added]. 13 Calendar Request, AVS-2/AFS-2 Lunch Meeting (May 23, 2012, 12:00 EST 15:00 EST) (on file with author) [emphasis added].

of the Democrats or Republicans winning the election this November on our operating budget? 14 One employee responded to Mr. Snyder with the following: I would not be able to quote Mr. Hickey exact words but what I took out of it was, if the conservative republication (sic) gain control of congress then the FAA could be looking a as much as a 15% cut in budget and we my (sic) be looking at furloughs. If the liberal Democrats take control of congress then we would be looking at a flat budget. In short if the Republicans win office our jobs may be effected (sic) (furloughs) if the Democrats win office then our jobs would not be effected (sic). 15 Another e-mail to Snyder stated: I agree Mr. Hickey probably shouldnt have mentioned politics and how the FAA budget and/or employee pay could be effected as a result of the upcoming election. . . . when Mr. Hickey made the following short summation of comments, If a conservative Republican congress is elected we would probably see continued and/or additional budget cuts and If a Democratic congress was elected, thing would probably remain flat, so was Mr. Hickey acting or being partisan? I dont think so, but politics is always hot button especially during an election year! 16 Following his internal review, Mr. Snyder sent an e-mail to supervisory counsel outlining his belief that a Hatch Act violation may have occurred, and documenting his opinion that employees perceived Mr. Hickeys comments to be a threat: Jeff and Doug, Thank you for taking the time to discuss my concerns regarding a possible violation of the Hatch Act by Mr. Hickey, during the meeting yesterday. . . . I did not personally attend the meeting but became aware of Mr. Hickeys comments regarding the potential consequences if either party wins the elections this fall. There seems to be some energy within the office as a reaction to Mr. Hickeys, inappropriate at best, comments and more than a few employees took umbrage that a person in such an elevated position in the agency would make those remarks. . . . My understanding is that more than one employees perception was that Mr. Hickey was essentially telling them how to vote if they wanted to keep their job. 17

E-mail, Kenneth Snyder (Supervisor, Seattle Flight Standards District Office) to Bob Archibald (ANM/FAA), May 23, 2012 meeting with AVS-2, John Hickey (May 24, 2012, 10:08:47 AM) (on file with author); E-mail, Kenneth Snyder (Supervisor, Seattle Flight Standards District Office) to Marvin C Moye (ANM/FAA), May 23, 2012 meeting with AVS-2, John Hickey (May 24, 2012, 10:12:29 AM) (on file with author). 15 E-mail, Bob Archibald (ANM/FAA) to Kenneth Snyder (ANM/FAA), Re: May 23, 2012 meeting with AVS-2, John Hickey (May 24, 2012 10:52 AM) (on file with author) [emphasis added]. 16 E-mail, Marvin C Moye to Kenneth Snyder (ANM-SEA-FSDO-01), Re: May 23, 2012 meeting with AVS-2, John Hickey (May 24, 2012, 1:07 PM) (on file with author) [emphasis added]. 17 E-mail, Kenneth Snyder (Supervisor, Seattle Flight Standards District Office) to [Redacted], Fw: May 23, 2012 meeting with AVS-2, John Hickey (May 24, 2012, 11:13 AM) (on file with author) [emphasis added].

14

An e-mail sent from Ray Towles to colleagues in the FAA regional office in Seattle subsequent to Mr. Hickey and Towles presentation stated, It was my sincere pleasure to be able to have a cup of coffee with you, and spen[d] (sic) the two days sharing information and experiences, without too much concern for politics (smile). 18 C. John Hickey and Raymond Towles are more restricted employees under the Hatch Act. Neither John Hickey nor Raymond Towles are Presidentially Appointed and Senate Confirmed (PAS) employees. 19 Raymond Towles is the Deputy Director, Flight Standards Service at the Federal Aviation Administration. 20 John J. Hickey is the Deputy Associate Administrator for Aviation Safety. 21 Hickey and Towles are Non-PAS employees, which includes Schedule C, non-career SES, and all other employees except PAS, career SES members, administrative law judges, and members of the Interior Board of Contract Appeals. III. Potential Legal Violations

A. John Hickey violated the Hatch Act The Hatch Act limits certain political activities of most executive branch employees. 22 The law prohibits covered federal employees from engaging in political activity while on duty 23 or in a government room or building. 24 Under the Hatch Act, no federal employee, whether on or off duty, may use official authority or influence to interfere with an election. 25 Under the Act, no federal employee may solicit or discourage political activity of anyone with business before his agency. 26 For purposes of the Hatch Act, the term federal employee means any individual, other than the President and the Vice President, employed or holding office in one of the following: 1) an Executive agency other than the General Accounting Office; 2) a position within the competitive service which is not an executive agency; or 3) the government of the District of Columbia, other than the Mayor, City Council members, or the Recorder of Deeds. 27 Under the Hatch Act, political activity is defined as activity directed toward the success or failure of a political party, candidate for a partisan political office or partisan political group. 28 Non-PAS employees may participate in partisan political activities only when outside of official duty status and government offices. Moreover, because non-PAS employees may not
E-mail, Ray Towles (Deputy Director, Office of Flight Standards) to Keeton Zachary, bill Heliker, David Menzimer, Dave A May, et al cc: Rick Domingo et al. (May 31, 2012 10:44) (on file with author) [emphasis added]. 19 See The White House, Nominations & Appointments, available at http://www.whitehouse.gov/briefingroom/nominations-and-appointments. 20 LinkedIn Profile, Raymond Towles, available at http://www.linkedin.com/pub/raymond-towles/1a/817/7. 21 Federal Aviation Administration, Key Officials, John J. Hickey, available at http://www.faa.gov/about/office_org/headquarters_offices/avs/key_officials/hickey/. 22 5 U.S.C. 7321-7326. 23 Id. at 7323. 24 Id. at 7324. 25 OSC Hatch Act Flyer, available at http://www.osc.gov/documents/hatchact/haflyer.pdf. 26 Id. 27 Frequently Asked Questions, Office of Special Counsel, available at http://www.osc.gov/haFederalfaq.htm. 28 5 C.F.R. 734.101.
18

engage in political activity during official duty hours, they may not use appropriated funds to pay for any political activity, and must avoid subsidizing political activity. John Hickey, a federal employee, advised other federal employees to vote for Democrats in the upcoming November 2012 election and he did this while on duty, in a government building, under his official authority, during a trip paid for with U.S. Treasury Funds. Thus, there is a prima facie claim of Mr. Hickey having violated the Hatch Act. B. John Hickey engaged in a number of election crimes Under 18 U.S.C. 594 Intimidation of voters, Whoever . . . threatens . . . or attempts to . . . threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives. . . at any election held solely or in part for the purpose of electing such candidate, shall be fined under this title or imprisoned not more than one year, or both. FAA regional employees alleged that they felt threatened by Mr. Hickey into voting for Democrats in the upcoming November election. Under 18 U.S.C. 595 Interference by administrative employees of Federal, State, or Territorial Governments, Whoever, being a person employed in any administrative position by the United States, or by any department or agency thereof, . . . in connection with any activity which is financed in whole or in part by loans or grants made by the United States, or any department or agency thereof, uses his official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives. . . . shall be fined under this title or imprisoned not more than one year, or both. Mr. Hickey used his official position, during a presentation funded by the U.S. Department of Transportation, to affect the election of Democratic candidates in the upcoming November 2012 election. Under 18 U.S.C. 600 Promise of employment or other benefit for political activity, Whoever, directly or indirectly, promises any employment, position, compensation, contract, appointment, or other benefit, provided for or made possible in whole or in part by any Act of Congress, or any special consideration in obtaining any such benefit, to any person as consideration, favor, or reward for any political activity or for the support of or opposition to any candidate or any political party in connection with any general or special election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, shall be fined under this title or imprisoned not more than one year, or both. Because John Hickey claimed that FAA employees jobs would be threatened if the Republicans won in November, Mr. Hickey indirectly promised employment in an agency funded by Congress as consideration for the employees support for Democratic candidates. Under 18 U.S.C. 610 Coercion of political activity, It shall be unlawful for any person to intimidate, threaten, command, or coerce, or attempt to intimidate, threaten, command, or coerce, any employee of the Federal Government . . . to engage in, or not to engage in, any political activity, including, but not limited to, voting or refusing to vote for any candidate or measure in any election, making or refusing to make any political contribution, or working or 5

refusing to work on behalf of any candidate. Any person who violates this section shall be fined under this title or imprisoned not more than three years, or both. Because Mr. Hickey led FAA employees to believe their employment depended upon how they voted in the upcoming election, Mr. Hickey threatened or attempted to threaten or coerce Federal employees to vote or refuse to vote for candidates in a federal election. If Mr. Hickey instructed FAA employees to make political contributions under threat of loss of employment otherwise, he may be liable under 18 U.S.C. 601 Deprivation of employment or other benefit for political contribution, and 18 U.S.C. 606 Intimidation to secure political contributions. Moreover, if Mr. Hickey did make any solicitations for contributions, he would be liable under 18 U.S.C. 607 Place of solicitation, because such a solicitation would have occurred in a federal building to federal employees by someone functioning in his official capacity. C. John Hickey engaged in Prohibited Personnel Practices (PPP) Under 5 U.S.C. 2302(b)(1)-(9), Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority discriminate for or against any employee or applicant for employment . . . on the basis of . . . political affiliation, as prohibited under any law, rule, or regulation; . . . coerce the political activity of any person (including the providing of any political contribution or service), or take any action against any employee or applicant for employment as a reprisal for the refusal of any person to engage in such political activity[.] 29 Mr. Hickey is a federal employee with authority to take personnel action and his presentation to the Seattle regional office may have constituted discrimination on the basis of political affiliation or constituted coercion of political activity, especially when, as is the case here, certain FAA employees felt they would be retaliated against based on their votes in the upcoming November 2012 election. Moreover, because insiders came forward to Cause of Action investigators with claims that whistleblowers would be retaliated against, Mr. Hickey or any other supervisory employee might engage in a prohibited personnel practice if they were to take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of (A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences (i) a violation of any law, rule, or regulation, . . . (B) any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences (i) a violation of any law, rule, or regulation[.] 30

29 30

5 U.S.C. 2302(b)(1)-(9). Id.