NAVIGATING THE HATCH ACT

In 1993, Federal and postal employees finally gained access to the political process when the Congress passed, and President Clinton signed into law, amendments to the Hatch Political Activities Act (“Hatch Act”). The original Hatch Act, first enacted in 1939 wanted to maintain neutrality and impartiality within the Civil Service by forbidding its involvement in political activities. The Hatch Act Reform Amendments now give federal and postal employees the right to participate in political activity as private citizens and protects their right to be free from improper political solicitation. However, the right to political participation has its own challenges. For the right to participate in political activity is not absolute. Despite many workshops and memoranda given by government agencies explaining the newfound rights of Federal and postal employees, employees are finding themselves before the Merit Systems Protection Board for violations of the Hatch Act. Below, is a discussion of the rights under the Amendments and why Federal employees must be vigilant to ensure that they are following all the proscriptions of the Hatch Act.

The Hatch Act Amendments apply to civilian federal employees, postal employees, part-time employees, D.C. government employees, special government employees and others who occasionally engage in government business. It does not cover the President, Vice President, General Accounting Office employees and members of the uniformed armed services or employees of security and crime prevention agencies. Generally, covered employees may actively participate in the management of political campaigns. However, this participation has clear defined limits. Also, permitted political can only occur under particular circumstances. First and foremost, Federal employees are prohibited from engaging in partisan political activities while on duty or on Federal property. This is called the “bright-line rule.” When this bright-line rule and other restrictions are violated, the Amendments give the Office of Special Counsel (“OSC”) the right to investigate and prosecute violations before the Merit Systems Protection Board. The OSC is aggressively enforcing this right.

Basically, Federal and postal employees can participate in the political process on their own time. They may: register and vote; be a candidate in nonpartisan elections; participate in political organizations; express opinions about candidates and issues; make a political contribution; attend and be active at political rallies and meetings; campaign for or against candidates in partisan elections; distribute campaign literature; make campaign speeches for candidates in partisan elections; wear a button on a partisan political campaign when not on duty; and sign nominating positions. This list is not exhaustive, but it gives an idea of the activities that are permitted.

Hatch Act Amendments prohibitions include, but are not limited to: being a candidate for partisan political office; engaging in political activity on duty or in a government office or while wearing a official uniform; soliciting political contributions from the general public; using official authority or influence to interfere with an election; placing a partisan bumper sticker on a government vehicle; and wearing a button on a partisan political campaign while on duty or at a work site or wearing an official uniform.

Some cases prosecuted by the OSC illustrate the pitfalls of the Hatch Act Amendments. The OSC suspended a postal employee for thirty days after he ran as a partisan candidate in a school board election. The postal employee tried to circumvent the prohibitions of the Hatch Act by filing as both a Democrat and a Republican. The OSC ruled that filing as both a Democrat and a Republican does not negate the Hatch Act’s prohibition against participation in a partisan campaign.

In another case, a federal employee took an extended leave to run for partisan political office. Again the OSC decided that such action was a violation of the Hatch Act.

Pitfalls are not only found in determining the partisan nature of a campaign and how to circumvent the prohibition against endorsing candidates. A federal employee was charged with violating the Hatch Act when he wrote a letter of endorsement, which included a request for contributions. An employee may not personally request, accept, or receive political contributions. However, the employee may solicit, accept or receive a political contribution from a person who is of the same federal labor organization or federal employee organization that has a multicandidate political committee.

The penalty under the act is removal from office or suspension of not less than thirty days. Removal would occur if circumstances show a deliberate disregard for the act. There continues to be a debate about whether the Act allows for debarment from federal employment. However, the Merit Systems Protection Board has determined that the act does not authorize debarment of employees removed for violation of the Hatch Act.

Federal and postal employees can protect themselves from prosecution for violating the Hatch Act by requesting an advisory opinion from the OSC. Inquiries can be made by phone, fax, mail or email to: Hatch Act Unit, U.S. Office of Special Counsel, 1730 M Street, N.W., Suite 300, Washington, D.C. 20036-4505; Telephone: (800) 854-2824, (202) 653-7143; Fax: (202) 653-5161; Email: hatchact@osc.gov.