Education Secretary Betsy DeVos is under investigation by the Office of the Special Counsel (OSC) for a potential violation of the Hatch Act, after a clip from an interview with Fox News in early September, where she took a political stand against Democratic candidate Joe Biden, was published on her department’s YouTube channel. The Hatch Act (1939) prohibits any federal employee from engaging in political activity while on duty, within a government room or building, in official uniform or using a government vehicle to promote said political activity. The OSC is an independent agency that is in charge of investigating violations of law that include violations of the Hatch Act.

The complaint was filed by investigative watchdog blog, the Checks and Balances Project. The head of the blog, Scott Peterson, was told in an interview with OSC Hatch Act attorney Eric Johnson, that the matter was going to be investigated, and that although “the incident seems very well documented,” it may be difficult to form an exact timeline due to the fact much of the government work was done remotely, as a result of the coronavirus pandemic.

If found guilty, DeVos would be the second Trump cabinet member to violate the law. According to the OSC, more than 12 Trump officials have violated the Hatch Act, but most of the infractions were only minor enough to merit only an official warning. The OSC has the choice to discipline, but could also pass it on to either the Merit Systems Protection Board, or the employee’s supervisor (a more common choice). White House Counselor Kellyanne Conway, when caught in a violation, was sent to Trump for disciplinary action, which he did not take.

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DeVos is specifically under investigation for the channels in which her interview’s promotion took place. In early September, the video clip from the Fox News interview where she criticized Biden on his wish to roll back her school choice policies (some of which he previously supported in the 1990s) was posted on the Education Department’s YouTube page. Her department also sent out a blast to the link of the clip, under the title “From the Desk of the Secretary,” to an official distribution list. This could potentially be considered a move for political gain through an official government agency, which would be considered a violation of the law.

In the clip, DeVos stated that Biden has “turned his back on the kids… and he’s turned his face in favor of the teachers union,” which she finds “shameful.” DeVos has also been critical of the coronavirus pandemic preventing American children from returning to in-person classes.

Angela Morabito, an Education Department spokesperson, said that DeVos was not in violation of the Hatch Act.

“The Secretary was asked to respond to oft-repeated criticism of her and her policies, and she defended her polices… The Hatch Act does not prohibit that kind of exchange with a journalist… Of course, we will cooperate with OSC,” Morabito stated. The OSC has stated that they “generally cannot comment on or confirm the status of Hatch Act investigations.”

This is not the first time the Checks and Balances Project has pushed inspector general investigations, including one during the Keystone Pipeline debate and another regarding an FBI probe in Arizona.

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