On November 27, the U.S. Office of Special Counsel (OSC) — not Robert Mueller’s but the federal agency with authorities to investigate cases related to the Civil Service Reform Act, the Whistleblower Protection Act, the Hatch Act, and the Uniformed Services Employment & Reemployment Rights Act (USERRA) — issued a new guidance regarding political activity. It says that  its Hatch Act Unit has received several questions regarding whether the following constitute “political activity” for purposes of the Hatch Act:

1. Is strong criticism or praise of an administration’s policies and actions considered political activity?

Criticism or praise that is directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group is political activity. Absent evidence that the criticism or praise is so directed, criticism or praise of an administration’s policies and actions is not considered political activity. Whether a particular statement constitutes political activity depends upon the facts and circumstances.

Consider, for example, the administration’s recent decision to move the U.S. embassy in Israel to Jerusalem. An employee who strongly criticizes or praises that decision during a workplace discussion with a colleague in the days immediately following the decision is less likely to be engaging in political activity than one making those same statements in the run-up to the next presidential election—when the decision will likely have been out of the news for several years—to a colleague that the employee knows has strong feelings about
the subject.

Read more here.

2. Is advocating for or against impeachment of a candidate for federal office considered political activity?

Yes. Read more here.

3. Is activity related to “the Resistance” considered political activity?

To the extent that the statement relates to resistance to President Donald J. Trump, usage of the terms “resistance,” “#resist,” and derivatives thereof is political activity. We understand that the “resistance” and “#resist” originally gained prominence shortly after President Trump’s election in 2016 and generally related to efforts to oppose administration policies. However, “resistance,” “#resist,” and similar terms have become inextricably linked with the electoral success (or failure) of the president. During the period when President Trump was not considered by OSC to be a candidate for reelection the terms did not raise any Hatch Act concerns. Now that President Trump is a candidate for reelection, we must presume that the use or display of “resistance,” “#resist,” “#resistTrump,” and similar statements is political activity unless the facts and circumstances indicate otherwise.

Note that this presumption is only relevant to employee conduct that takes place on duty, in the workplace, while wearing an agency uniform or insignia, or while invoking any official authority or influence. Provided that they comply with the Hatch Act’s restrictions, employees are free to engage in political activity while off-duty and away from the federal workplace.

In OSC’s example, if you tweet “I must #resist the temptation to eat another donut from the break room” – you would not/not be engaging in political activity but OSC would presume that “the use or display of the hashtags #resist and #resistTrump, in isolation, is political activity under the Hatch Act.”  Read in full here.

The thing is, Foreign Service folks are considered on duty 24/7, so what does this guidance means in the real world? We’ve asked the OSC; will update if we hear anything back.

You may also call the Hatch Act Unit at 202-804-7002 or send an e-mail to Hatchact@osc.gov  for your Hatch Act-related questions.

I’m a former @US_OSC employee and this goes too far in chilling the 1st Amendment rights of federal employees. read @charlie_savage’s latest… https://t.co/G5KlkYmFQ2

— Nick Schwellenbach (@schwellenbach) November 30, 2018

Federal Employees Barred From Discussing Trump’s Impeachment at Work https://t.co/kkmlXe1p8k

— Intelligencer (@intelligencer) November 30, 2018

Two million federal workers receive memo warning they can’t use the word ‘resist’ or discuss Trump impeachment at workhttps://t.co/jakRSeFtAB

— Raw Story (@RawStory) November 30, 2018

NEW: Office of Special Counsel (not Mueller) Hatch Act guidance effectively bans federal employees from advocating for impeachment or using the words “resist” or “resistance” to oppose administration policies. We’re calling on OSC to rescind the guidance: https://t.co/AZuRXZo1Rn pic.twitter.com/lG1kSZcjER

— American Oversight (@weareoversight) November 29, 2018

OSC’s new interpretation of the Hatch Act “runs the risk of turning the OSC into an Orwellian enforcer inside the federal workforce.” —@schwellenbach https://t.co/pUrTTtgvZr

— Kathleen Clark (@clarkkathleen) November 30, 2018

The point of the Hatch Act is to prevent an Administration from misusing federal employees for its own political purposes. Overzealous enforcement to bar federal employees from publicly _resisting_ bad policies turns the Hatch Act on its head. https://t.co/vxBnhNAmSM

— Sasha Samberg-Champion (@ssamcham) November 30, 2018

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