Federal employees work in a unique cross section of political influence and public service, and the Hatch Act, which was signed into law in 1939, is designed to ensure that the work of career civil servants is not impacted by political motivations. Hatch Act violations can come with serious repercussions.
The only members of the executive branch that are wholly exempt from the Hatch Act are the president and vice president, though some feds have greater or fewer restrictions depending on their position.
The easiest baseline for avoiding Hatch Act violations is to avoid any political activity while on the job, at the office or representing oneself as an official federal employee.
All feds are permitted to register, vote and donate to campaigns as they see fit as part of their constitutional rights.
All employees also have the right to express their opinions about candidates and issues, so long as it is not promoting the success or failure of a particular party or candidate.
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In today’s politics for example, the Office of Special Counsel has ruled that federal employees cannot wear or display “Make America Great Again” slogans or paraphernalia while at work, as they are associated with President Donald Trump’s campaign to be reelected president. Such restrictions would also apply to the Biden campaign.
On the other hand, OSC ruled in July of this year that feds can display and discuss support for the Black Lives Matter movement, as the organization is not inherently partisan.
Due to the COVID-19 pandemic closing many federal offices, OSC released guidance in April that clarified federal employees were considered “on duty” while they were in normal work hours or performing official duties even if they are teleworking to do so. This means that partisan political paraphernalia or discussions should be removed while videoconferencing in an official capacity.
But some employees have more restrictions than others.
Less restricted vs further restricted
The vast majority of the federal workforce falls under the less restricted category, which means that they have more freedom to engage in political activity, so long as it does not influence their government work.
Such employees can run for office in a nonpartisan election, participate in political clubs or organizations, hold office in such clubs, campaign for candidates or issues and volunteer to work on political campaigns, so long as such activities are entirely removed from their work as feds.
Regardless of whether they are in the office or not, such feds are prohibited from running for partisan political office, influencing the political participation of anyone doing business with their agency, using their authority as feds to influence an election, or soliciting or accepting donations to a partisan political group.
Feds do have a very narrow exception for soliciting and accepting donations so long as they are for a federal labor organization or federal employee organization that has a multicandidate political committee. The employee donating funds must be a member of that organization and not a subordinate of the employee collecting funds, and all such activities must take place outside of the federal workplace.
Further restricted employees are those that work in intelligence or enforcement agencies or in positions such as the Senior Executive Service, administrative law judges, contract appeals board members and administrative appeals judges.
These employees cannot take active part in political campaigns or lead political organizations, even on their own time, though they may still attend political events, vote and contribute money as they see fit and express opinions about candidates or issues.
Political appointees
Select top-level federal officials are exempt from some elements of the Hatch Act outlined under amendments to the law and Office of Personnel Management guidance.
“Certain federal officials, such as assistants to the president paid from appropriations of the Executive Office of the White House, and officials appointed by the president with the advice and consent of the Senate [PAS officials] who determine national policy, while still covered by the Hatch Act Amendments, are exempt from the specific prohibition on engaging in political activities while on duty or in a federal office space,” a 2007 memorandum issued by the Congressional Research Service notes.
Such officials, including the heads of federal agencies and certain White House staff, must still walk a narrow line to avoid Hatch Act violations, as they are prohibited from using any other government resources in engaging in political activity.
“Federal officials, such as heads of federal departments, are expressly forbidden to use their federal position or influence to affect the results of a federal election,” the memo states, adding that those officials must repay any government costs incurred from their authorized political activities.
“Costs which the government would have incurred in any event, regardless of whether such activities were political or not, such as employee salaries, the value of federal office space, and security, would generally not be included in costs that must be reimbursed; and those costs which are additional but which are considered de minimis, such as for ’local calls’ do not have to be reimbursed.”
Such officials cannot involve subordinate employees in their political activities, such as Schedule C political appointees who often serve as assistants, policy experts and special counsels to agency heads and are still fully subject to Hatch Act restrictions.
“Because of what has been recognized as the inherently coercive nature of the superior-subordinate relationship, the interpretations of this language make it clear that a violation of this provision would occur even if the superior official did not request the participation in political activities or the political services from a subordinate employee, but merely accepted from a subordinate employee services or activities, even voluntary in nature, when such services or activities are of a partisan political character,” the memo states.
Some agencies also have a standing practice to keep leadership out of political involvement, even when they are permitted to do so under the Hatch Act, in order to maintain perceived objectivity.
Penalties
Consequences for violating the Hatch Act can range from a formal reprimand, to grade reductions, removal from federal service and even debarment from federal employment for five years, depending on the severity of the violation.
The OSC and the Merit Systems Protection Board are tasked with identifying and determining the appropriate penalties for Hatch Act violations.
Jessie Bur covers federal IT and management.
