The Hatch Act for Feds, Once More

With the election race ratching up the heat index in the last few weeks of the campaign, not just here but overseas (check out the global electoral college and these three guys from Iceland), I thought it might be a good idea to look over the Hatch Act once more.

In 2006: A Team Leader with a federal agency, disseminated four partisan political e-mails to agency employees, including subordinates, and other individuals. One of the e-mails the employee distributed contained a video that was 12:39 minutes long and was paid for by the Republican National Committee and the Bush/Cheney ‘04 campaign. The employee was on duty and in his federal workplace when he disseminated this e-mail. OSC concluded that the employee’s actions violated the Hatch Act. OSC, the federal agency and the employee agreed to informally settle this complaint. The employee was suspended without pay for ten consecutive work days, from October 23, 2006, through November 3, 2006.

In 2004: OSC investigated events surrounding a 2004 presidential campaign appearance by Sen. John Kerry at a federal agency in Florida. OSC found that broadcasting and Web-streaming this campaign event to 2,000 agency employees and 13,000 agency contractors in the community, while on duty and in the federal workplace, violated the Act. OSC’s investigation revealed that senior management officials at the agency relied on incorrect advice of counsel and then-existing agency guidelines in authorizing the broadcasting and web-streaming of the Kerry campaign event to the community. As a result of OSC’s investigation, the agency has updated its guidelines so that they are consistent with the protections and prohibitions of the Hatch Act. In addition, as part of a settlement agreement, all agency employees are required to view an OSC training video on the Hatch Act.

Just a couple of examples how one could get in trouble with the OSC. The U.S. Office of Special Counsel (OSC) is an independent federal investigative and prosecutorial agency. Its basic authorities come from three federal statutes, the Civil Service Reform Act, the Whistleblower Protection Act, and the Hatch Act.

The Hatch Act restricts the political activity of executive branch employees of the federal government, District of Columbia government and some state and local employees who work in connection with federally funded programs. In 1993, Congress passed legislation that significantly amended the Hatch Act as it applies to federal and D.C. employees (5 U.S.C. §§ 7321-7326). Under the amendments most federal and D.C. employees are now permitted to take an active part in political management and political campaigns. A small group of federal employees are subject to greater restrictions and continue to be prohibited from engaging in partisan political management and partisan political campaigns.

Permitted/Prohibited Activities for Employees Who May Participate in Partisan Political Activity.

These federal and D.C. employees may-

• be candidates for public office in nonpartisan elections
• register and vote as they choose
• assist in voter registration drives
• express opinions about candidates and issues
• contribute money to political organizations
• attend political fundraising functions
• attend and be active at political rallies and meetings
• join and be an active member of a political party or club
• sign nominating petitions
• campaign for or against referendum questions, constitutional amendments, municipal ordinances
• campaign for or against candidates in partisan elections
• make campaign speeches for candidates in partisan elections
• distribute campaign literature in partisan elections
• hold office in political clubs or parties

These federal and D.C. employees may not-

• use official authority or influence to interfere with an election
• solicit or discourage political activity of anyone with business before their agency
• solicit or receive political contributions (may be done in certain limited situations by federal labor or other employee organizations)
• be candidates for public office in partisan elections
• engage in political activity while:
• on duty
• in a government office
• wearing an official uniform
• using a government vehicle
• wear partisan political buttons on duty

Agencies/Employees Prohibited From Engaging in Partisan Political Activity

Employees of the following agencies (or agency components), or in the following categories, are subject to more extensive restrictions on their political activities than employees in other Departments and agencies:

Administrative Law Judges (positions described at 5 U.S.C. ?5372) Central Imagery Office Central Intelligence Agency Contract Appeals Boards (positions described at 5 U.S.C. ?5372a) Criminal Division (Department of Justice) Defense Intelligence Agency Federal Bureau of Investigation Federal Elections Commission Merit Systems Protection Board National Security Agency National Security Council Office of Criminal Investigation (Internal Revenue Service) Office of Investigative Programs (Customs Service) Office of Law Enforcement (Bureau of Alcohol, Tobacco and Firearms) Office of Special Counsel Secret Service Senior Executive Service (career positions described at 5 U.S.C. ? 3132(a)(4))

Note that employees of the State Department are not subject to the additional restrictions under the Hatch Act. However, you may want to contact the Ethics Office at the State Department for information about additional restrictions placed on political appointees at the Department.

Permitted/Prohibited Activities for Employees Who May Not Participate in Partisan Political Activity

These federal employees may-

• register and vote as they choose
• assist in voter registration drives
• express opinions about candidates and issues
• participate in campaigns where none of the candidates represent a political party
• contribute money to political organizations or attend political fund raising functions
• attend political rallies and meetings
• join political clubs or parties
• sign nominating petitions
• campaign for or against referendum questions, constitutional amendments, municipal ordinances

These federal employees may not-

• be candidates for public office in partisan elections
• campaign for or against a candidate or slate of candidates in partisan elections
• make campaign speeches
• collect contributions or sell tickets to political fund raising functions
• distribute campaign material in partisan elections
• organize or manage political rallies or meetings
• hold office in political clubs or parties
• circulate nominating petitions
• work to register voters for one party only
• wear political buttons at work

OSC issues advisory opinions to persons seeking advice about political activity under the Hatch Act. You may request such advice by phone, fax, mail or e-mail.

Hatch Act Unit U.S. Office of Special Counsel 1730 M Street, N.W., Suite 201 Washington, D.C. 20036-4505 Tel: (800) 85-HATCH or (800) 854-2824 (202) 254-3650 Fax: (202) 653-5151

E-mail: hatchact@osc.gov

Here's the full text of the Hatch Act from the Code of Federal Regulations.