OSC’s Hatch Act Guidance: No Advocacy For/Against Impeachment, No #Resist, #ResistTrump Use

 

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.

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Watch Out! Hatch Act Snares HUD Secretary Julián Castro, Other Federal Employees

Posted: 3:38 am ET
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On July 18, 2016, the U.S. Office of Special Counsel (OSC) announced its finding that Secretary of Housing and Urban Development Julián Castro violated the Hatch Act during a Yahoo News interview on April 4, 2016. According to OSC’s report, Secretary Castro’s statements during the interview “impermissibly mixed his personal political views with official agency business despite his efforts to clarify that some answers were being given in his personal capacity.”

OSC apparently conducted an investigation after receiving a complaint about the interview. The OSC stresses that “federal employees are permitted to make partisan remarks when speaking in their personal capacity, but not when using their official title or when speaking about agency business.” The investigation concludes:

While the Hatch Act allows federal employees, including cabinet secretaries, to express their personal views about candidates and political issues as private citizens, it restricts employees from using their official government positions for partisan political purposes. In passing this law, Congress intended to promote public confidence in the Executive branch by ensuring that the federal government is working for all Americans without regard to their political views. Despite his efforts to clarify that he was speaking only for himself and not as a HUD official when answering political questions, Secretary Castro’s statements impermissibly mixed his personal political views with official government agency business.

OSC’s report can be found here (PDF) or read it below.  Secretary Castro’s response can be found here (PDF).

Take note of these other cases:

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Presidential Appointees With Senate Confirmation (PAS) and the Hatch Act

Posted: 12:52 am EDT
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Via U.S. Office of Special Counsel (OSC) | Hatch Act:

 

 

The Hatch Act, a federal law passed in 1939, limits certain political activities of federal employees, as well as some state, D.C., and local government employees who work in connection with federally funded programs. ​The law’s purposes are to ensure that federal programs are administered in a nonpartisan fashion, to protect federal employees from political coercion in the workplace, and to ensure that federal employees are advanced based on merit and not based on political affiliation.​ Below is an excerpt from its FAQ on Presidential Appointee With Senate Confirmation (PAS):

I am an employee who was appointed by the President, by and with the advice and consent of the Senate (PAS). Am I covered by the Hatch Act?

Yes. An employee appointed by the President, by and with the advice and consent of the Senate (PAS), is subject to the provisions of the Hatch Act. However, certain PAS’s are not subject to the Act’s prohibition against engaging in political activity while on duty, in a federal room or building, wearing an official uniform or insignia, or using a government vehicle. To be exempt from this prohibition, a PAS must meet all of the following criteria:

1) the duties and responsibilities of his position must continue outside normal duty hours and while away from the normal duty post;

2) his position must be located within the United States; and

3) he must determine policies to be pursued by the United States in relations with foreign powers or in the nationwide administration of federal laws.

If a PAS meets all these criteria, he is not prohibited from engaging in political activity while on duty, in a federal room or building, wearing an official uniform or insignia, or using a government vehicle, provided the costs associated with the political activity are not paid for by money derived from the Treasury of the United States. However, the PAS remains subject to all the other prohibitions of the Hatch Act, and thus, may not: use his official authority or influence for the purpose of interfering with or affecting the result of an election; knowingly solicit, accept, or receive a political contribution from any person; be a candidate for public office in a partisan election; or knowingly solicit or discourage the political activity of any person who has business before the employee’s employing office.​​​

I am an employee who was appointed by the President, by and with the advice and consent of the Senate (PAS). Does the exemption from the Hatch Act’s prohibition against engaging in political activity while on duty, which applies to me, also apply to my staff?

No. Assuming a Presidential appointee with Senate confirmation (PAS) meets the criteria outlined in the answer to the previous question, he—but only he—may engage in political activity while on duty, in a government room or building, wearing an official uniform or insignia, or using a government vehicle, so long as, the costs associated with the political activity are not paid for by money derived from the Treasury of the United States. The appointee’s staff, however, is not subject to this exemption. Therefore, the appointee’s staff members are still prohibited from engaging in political activity while on duty, in a federal room or building, wearing an official uniform or insignia, or using a government vehicle.​​

May an Presidential appointee with Senate confirmation (PAS), ask his chief of staff (or any other subordinate employee) to contact and/or liaise with a political party to find out where, or if, the party needs the PAS’s help?

No. The Hatch Act prohibits federal employees, including PAS’s, from soliciting or accepting uncompensated volunteer services for any political purpose from an individual who is a subordinate. 5 C.F.R. §§ 734.302(b)(3)​734.303(d)​​. Thus, the Act prohibits a supervisor from asking subordinate employees to contact a political party to inquire about opportunities for the PAS to assist the party.​​​

Click here for the printable FAQ (PDF). OSC also issues advisory opinions to persons seeking advice about their political activity under the Hatch Act. Individuals or their legal representatives may request an opinion about their own political activity. E-mail: hatchact@osc.gov.

 

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Related post:

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