Federal Manager's Daily Report

The AFGE union has filed a suit challenging an Office of Special Counsel’s policy that advocating for or against impeachment of President Trump is prohibited in the workplace and other settings the Hatch Act applies, as is use of terms such as “resistance” and “#resist,” because he is a candidate for partisan political office.

Those terms have become “inextricably linked with the electoral success (or failure) of the president” said the policy, issued late last year, which added that generalized praise or criticisms the administration’s policies and actions are not necessarily banned political activities.

The AFGE and other federal employee unions criticized that guidance when it was issued, saying it is overly broad and confusing and that it will have a chilling effect on speech and allowable political activities under the Hatch Act.

The suit, filed in partnership with an advocacy group, calls the guidance “an unprecedented attempt to stifle the speech of public employees on matters of the utmost public concern” and goes beyond the restrictions allowable under the Hatch Act. They are seeking an injunction against enforcement of the policy; penalties for Hatch Act violations—which are prosecuted by the OSC before the MSPB—can range up to firing and debarment from federal service.

The guidance says that whether a statement of praise or criticism implicates the Hatch Act depends on the circumstances: it is considered political activity only if directed toward the success or failure of a political party or candidate for partisan office. “There are no “magic words” or express advocacy necessary for statements to be considered political activity under the Hatch Act,” it says, adding that factors such as whether the statement relates to an approaching election must be considered.

But it adds that in general, an employee “must be careful to avoid making statements” directed toward the success or failure of a candidate in settings covered by the Hatch Act—on duty, in the workplace, while wearing an agency uniform or insignia, or while invoking any official authority or influence.