Monday, October 25, 2010

Eight days till election day - do you know your Hatch Act Rules?

The Hatch Act of 1939 is a United States federal law whose main provision is to prohibit federal employees from engaging in partisan political activity.

The 2010 midterm election is predicted to be one of the most expensive and heated elections in recent years. The Office of Special Counsel (OSC), an independent investigative and prosecutorial agency with jurisdiction to enforce the Hatch Act recently cited two Merit Systems Protection Board (MSPB) decisions to remind all federal employees of the importance of understanding and observing the Hatch Act’s restrictions on political activity. As seen from these decisions, the penalties for violating the Hatch Act are significant. The federal employee in the first case was ordered removed; and the second employee was ordered suspended without pay for 120 days. According to OSC:

The first employee was a Program Analyst/Contracting Officer Technical Representative with the Bureau of Engraving and Printing (BEP). This employee, while on duty and in the federal workplace, forwarded several partisan political e‐mails, including two that solicited political contributions, to BEP employees and BEP contractor employees over whom she had authority and influence. In finding that the BEP employee violated the Hatch Act’s restrictions on using official authority or influence to affect the result of an election, soliciting, accepting or receiving political contributions, and engaging in political activity while on duty or in a room or building occupied in the discharge of official duties, the MSPB found that the employee’s conduct was “little different than distributing campaign literature prepared by others, a clear violation of the Hatch Act.” Special Counsel v. Ware, 114 M.S.P.R. 128, 138 (2010). The MSPB also ruled that “soliciting contributions from persons doing business with an agency is a serious violation of the Hatch Act because of the threat of coercion and the appearance that government contracts are awarded based on political patronage rather than competitive bidding.” Id. at 137.

The second case involved an employee of the Internal Revenue Service (IRS). The employee, while on duty and in the federal workplace, disseminated a fundraising e-mail to approximately 44 recipients. The e‐mail requested contributions for then‐Presidential candidate Barack Obama, and provided three links for recipients to make contributions online. In affirming the Initial Decision finding that the IRS employee violated the Hatch Act’s restrictions on soliciting, accepting or receiving political contributions, and engaging in political activity while on duty or in a room or building occupied in the discharge of official duties, the MSPB stated that “any Hatch Act violation by a federal employee, on duty and in government offices, [is] a serious matter.” Special Counsel v. Mark, 114 M.S.P.R. 516, 520 (2010). Also, the MSPB determined that the employee’s violation warranted a “significant penalty” of a 120‐day suspension. Id. at 525.

Read the whole thing here.

In the September issue of AFSANet, the organization issued a Hatch reminder and cited the "most recent cable on this issue" (the text unfortunately, appears to be extracted from the original cable and does not contain any daytimegroup indicator, so we can't tell how recent this is). Here is a summary: 
For Foreign Service employees: Hatch Act requirements and Department policy place broad restrictions on what political activities Presidential appointees may undertake. All employees are prohibited from engaging in partisan political activities while "on duty." For Chiefs of Mission serving overseas, this restriction has a large footprint; you are considered to be "on duty" twenty-four hours per day while at your post of assignment. Accordingly, you may not engage in any partisan political activities while at post, including host ing events at the Embassy or official residence on behalf of a partisan political candidate or group (after consultation with L/Ethics, however, the Embassy may be able to meet with such candidates or meet with members of these groups under other limited circumstances). You also may not leave post for the primary purpose of participating in partisan political activities in the United States.

In addition, your partisan activities are considerably restricted even when not at post. You may not endorse or oppose a candidate for partisan political office in a political advertisement, broadcast, campaign literature, or similar medium. You may not attend a political party convention or an election night celebration, unless authorized to attend due to special circumstances by the Department's Designated Agency Ethics Official, Deputy Legal Adviser Jim Thessin. You may not run for a partisan political office or work for a partisan political campaign. You also may not speak, attend or host a fundraising event for a partisan political candidate or party, or conduct any fundraising activity in this regard, even if the candidate is a spouse or family member.

Like other employees, Chiefs of Mission may register and vote; express personal opinions on partisan political subjects; and be a member of a partisan political party or group. You also may make contributions to political parties or candidates, subject to state and federal limitations. Additionally, when authorized by the Executive Secretary of the Department, you may provide foreign policy briefings in your official capacity to candidates and political groups on a nonpartisan basis.
For your ready reference, we have reprinted below the Department's more detailed guidance on political activity restrictions applicable to PAS employees. This is also available on the ethics webpage at If you have further questions, please contact the attorneys at L/Ethics, preferably by e-mail on the SBU at L-EMP-Ethics-Attorney-Mailbox, or, by phone at 202-647-4646.  We also urge that all employees familiarize themselves with 5 FAM 790, Social Media Use and Policy, which may also affect political activity.
Read the whole Hatch Act Rules and detailed guidance for FS personnel here.

OSC has put together a Federal Q&A on the Hatch Act here.

If you are a Federal employee and is active on Facebook Twitter, blogs, etc., the OSC's FAQ regarding social media and the Hatch Act may also be worth a read. Reposted below via USNavy in Slideshare: