HHS Secretary Xavier Becerra violated Hatch Act, Office of Special Counsel finds

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HHS secretary refuses to answer questions on federal employee telework

HHS Secretary Xavier Becerra hedged his answers to questions about how many of his employees at headquarters are still telecommuting more than three years after the COVID-19 pandemic.

The U.S. Office of Special Counsel (OSC) found that Department of Health and Human Services (HHS) Secretary Xavier Becerra violated federal law.

Special Counsel Henry Kerner sent a letter to President Joe Biden in which he said that Becerra violated the Hatch Act by publicly expressing support for California Democrat Sen. Alex Padilla’s reelection while appearing in an official capacity as HHS secretary.

"As explained in the accompanying report, OSC concluded that Secretary Becerra violated the Hatch Act by expressing support for Senator Alex Padilla’s reelection while speaking in his official capacity at the Congressional Hispanic Caucus Institute Annual Awards Gala on September 15, 2022," Kerner wrote.

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The Office of Special Counsel found that Department of Health and Human Services Secretary Xavier Becerra violated the Hatch Act by publicly expressing support for California Democrat Sen. Alex Padilla’s reelection while appearing in an official capacity. (Reuters / File)

"The Hatch Act prohibits federal employees from using their official authority or influence to affect the outcome of an election," Kerner continued. "In delivering his speech, Secretary Becerra impermissibly mixed his personal electoral preference with official remarks."

"While federal employees are permitted to express support for candidates when speaking in their personal capacity, the Hatch Act restricts employees from doing so when speaking as a government official," he added.

Kerner wrote that with "a presidential election approaching next year, this report offers an opportunity to deter violations by reminding federal employees at all levels of the Hatch Act’s restrictions."

"Accordingly, I submit to you the enclosed report, together with Secretary Becerra’s response, for your consideration," Kerner concluded in the letter.

In his response to the OSC, Becerra called his words an "inadvertent violation" and said he regrets them, and added that he "did not realize at the time that my off-the-cuff remarks" regarding his "personal voting intentions were in violation of the Hatch Act."

"I now understand why they were not permitted," Becerra said, also saying he received "additional counseling" from the HHS ethics department on the Hatch Act. Becerra said he would "work hard to ensure that there are no future violations."

Padilla first came to the Senate after Vice President Kamala Harris left the chamber to join the Biden administration.

Alex Padilla first came to the Senate after Vice President Kamala Harris left the chamber to join President Joe Biden's administration. (Kevin Dietsch / Getty Images / File)

Becerra's policies have come under fire by Republicans in Congress who grilled him last month about his agency’s remote work policies.

Becerra refused several times to answer questions about what percentage of his workforce is still teleworking more than three years after the onset of the COVID-19 pandemic and at a time when many offices have returned to work.

During a budget hearing at the Senate Finance Committee, Sen. Bill Cassidy, R-La., repeatedly asked Becerra how many HHS employees are still working from home, but the questioning got nowhere.

"This is a picture taken at 10:40 a.m. last Monday at HHS headquarters. It’s, like, empty," Cassidy said as he showed a picture of an empty lot. He later clarified that it was the parking lot for the Centers for Medicare & Medicaid Services headquarters.

"Can you give a breakdown of how many full-time employees are at their desk in one of these buildings every day?" Cassidy asked.

"Senator, when you take a look at the workforce at HHS, and we’re close to 90,000 throughout the country and working in various parts of the country, some here at headquarters … by the way, headquarters —" Becerra began to answer.

"I’ve got limited time," Cassidy interrupted. "So, tell me, of what percent of the employees are at their desk … on any given day?"

Sen. Bill Cassidy, R-La., repeatedly asked HHS Secretary Xavier Becerra, above, how many department employees are still working from home. (Shawn Thew / Pool via AP / File)

"Our folks are working full time," Becerra said.

"No, but how many are at their desk as opposed to being at home or someplace else, a coffee shop or whatever?" Cassidy said.

"What we make sure we care about is that they’re performing and they’re delivering," Becerra said.

"That’s not really answering my question because I know the best practices now in many industries is to bring people back in. So, is it 5%, is it 10%, is it 1%? How many folks are actually sitting at their desk in a government building when they are working full time every day?" Cassidy said.

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"And we have folks who, as they’re working full time," Becerra started before being interrupted again.

"Clearly, sir, you don’t want to answer that question, and I don’t mean to be rude, but you don’t, and that kind of begs that the answer may not be flattering," Cassidy said.

Fox News Digital's Peter Kasperowicz contributed reporting.