There's a new Hatch Act and whistleblower retaliation sheriff in town

with a big and contentious election coming on there's a new Hatch Act sheriff in town attorney Hampton deler was recently confirmed as special Council leading the office of special counsel for some current topics and its plans for the agency Hampton deler joins me in studio good to have you with us Tom thank you for having me and you are replacing the redoutable Henry ker who has moved on to the Merit systems protection board but having chatted with you before the interview you're no slouch either tell us about yourself where the heck do you come from well mainly from North Carolina I was born in Mississippi raised in Durham and Chapel Hill North Carolina went to University of Michigan for undergrad y Law School served as a deputy attorney general in North Carolina I was head of the office legal policy in the US justice department from 21 to 23 and was planning to return to private practice but was asked if I'd be willing to be nominated to head up the office of special counsel and I'm glad I said yes and what have you found there so far I have found an amazingly small agency of incredibly dedicated talented colleagues it's daunting to think about it and even to say it we've got 2.2 million federal employees and there are approximately 130 members of the office of special council with this incredibly broad mandate we do enforce the Hatch Act and we take that very seriously it's something that I've thought about a lot and have made an announcement about out but we also look to deter government misconduct and maybe at the core of our mission protect whistleblowers within the federal Workforce to make sure that they are respected and protected and what are your observations I guess about the comprehensiveness of whistleblower protection at least legally in the federal government because you know every five or six seven years there's a Gambit legislatively to extend protections and that includes the federal contract side of it what's your sense of how much the blanket covers that bed at this point I know there's more to be done on the legislative side and that's something I will think about and talk about in the future but the law on the books is robust and obviously Senator Grassley The Whistleblower protection caucus in the Senate have been at the Forefront of this effort but if you look at the protections as written I think they're very meaningful and they ought to give a level of comfort that federal workers who see wrongdoing can speak up and should not and will not be retaliated against obviously it's up to our office to be vigorous and we are in making the protections on paper reality in practice the Merit systems protection board obviously as the adjudicator plays a key role and it is wonderful that they now have all three members of the board we went five years without a quorum and so those protections I think is a practical matter dipped because the back stop of the mspb was not functioning as intended but the mspb is back my predecessor Henry Kerner was just sworn in and he has got incredible experience having been at the office of special counsel and knowing what the law is and how to protect whistleblowers so I think there is a lot of protections that are available right now all right and what about on the contractor's side any sense of that I have not been able to delve into yet in the way that I wanted the first thing I did Tom when I got to the agency just a couple months ago is have one-onone individual meetings with every one of my co-workers so that was wonderful meaningful took some time it also brought home though how small we are the fact that I could do that and have a meaningful meeting with every colleague so certainly there is the opportunity for federal government employees to call out misconduct by contractors but that's an area want to spend more time looking into in the near future we're speaking with Hampton Dinger he's special counsel in the office of special counsel and you mentioned Senator Grassley this is one area in generally hatack too for that matter that both sides of the aisle so to speak pretty much come together when it comes to whistleblowers you're exactly right and that's part of the attraction for me you know at the justice department it is a nonpartisan agency the rule of law is what governs when you're a federal prosecutor not partisanship so I was very comfortable with that I worked in the State Attorney General's office we were focused on the rule of law and not politics and so the fact that it's really a Cornerstone of the office of special Council that it is above politics apart from politics it's even-handed that's something that attracted me to the agency and I've tried to continue that tradition and let's talk about your recent Hatch Act guidance because everyone is kind of bracing themselves for this election I don't even want to say upcoming because we're already into the campaign because the two candidates were decided by the party so early and because it is I think it's fair to say unusually contentious and there is such a vast contrast between the positions and the candidates is there in your sense maybe a little bit more I don't know magnetic attraction to things that would violate the Hatch Act this time around well I'm sure election years always lead to an uptick in Hatch Act related questions for one but I do want to make clear Tom that my announcement about the Hatch Act was not related to this election was not related to a past president a current president or future president or White House for me it was based on coming into the office looking at the law and trying to make sure I was and the agency was following uh the requirements of the law as closely as possible so the major point of the announcement I think which has received the most attention is the belief that as it's written in the law White House Personnel should be subject to the same enforcement scheme as the two million other federal workers and that's in the statute so I'm happy to talk more about it but I I want to make sure there's no misunderstanding with your audience this wasn't about this election or any politician this was about me doing my best to try to follow the law and when you refer again in the announcement to White House personnel that's really several types of employee there is the politically appointed Senate confirmed level then there is a level below that that may not be Senate confirmed you know you have the schedule C I believe it is people and so on so there's not one type of White House employee that's right but I want to be clear that the law as written has one car out and that is for Senate confirmed personnel and actually as I understand it I don't think there's many if if any Senate confirmed Personnel who would work in a typical white house they are in the rest of the of the federal government throughout the agency so for Senate confirmed Personnel Congress has said if my office sees a Hatch Act violation we should report that to the president and in that narrow category of presidentially appointed Senate confirmed Personnel the president will decide should there be some type of sanction or punishment for a hatch act violation but for everyone else the law says my office should take those matters and has to take those matters it says my office shall take those matters to the Merit systems protection board so I understand my office had a different view before I got there but a lot of that was driven by the lack of a functioning Merit systems protection board so for five years as we said there wasn't a quorum so there wasn't any place to go but now the board is back the law is clear and I think think a Level Playing Field for all federal workers whether you're in the West Wing or Western Kansas or on the west coast is the right thing and it's what Congress has said right so that means functionally then it's the same for everybody except that carv out group a complaint is lodged and then you pursue it through the mspb because there is one exactly exactly and Congress was very clear on this point again the cases we're going to bring and the office has traditionally actually brought front of the Merit system production board are the most serious cases egregious conduct recidivist conduct you know hatack violations over and over again our office focuses a lot on Education and Training we're trying to prevent haschack violations before they happen and we're very focused on that we can issue warning letters we can ask someone we believe who has violated the Hatch Act to immediately Rectify to uh to delete the tweet that may have sought campaign contributions for example for a particular candidate so we're looking to do lots of things in addition to taking the most serious cases all the way we're speaking with Hampton delinger he's special counsel in the office of special Council well let's talk about what constitutes you know Hatch Act violations I mean it gets trivial a button on someone's lapel or even I've heard over the years a bumper sticker you know that you drive into the federal garage and then there's saying people hey we're going to lunchtime have a fundraising for candidate XYZ clearly egregious and so tell us about the balance of free speech for government people and this hatch Shack situation that's exactly right Tom Congress has said two things and and the courts as well have backed up Congress on these points that one we need to have an apolitical Federal Workforce nonpartisan and so doing Politics on the job at the office office is