Fedweek Legal

A U.S. Court of Appeals has ruled that postal workers are prohibited by the Hatch Act from displaying political campaign posters on union bulletin boards in non-public areas of post offices. Burrus v. Vegliante, 17 LRRM (BNA) 3155, 2003 WL 21648686 (July 2003). The Second Circuit’s reasoning would apply to other federal employees, in other federal buildings, as well.

Postal employees had hung posters on union bulletin boards during the 2000 election comparing the voting records of candidates. Although alleging to be factual, the union admitted that the purpose of the posters was to encourage support for Al Gore. The Office of Special Counsel opined that the posters violated the Hatch Act, and the union filed suit to prevent the Postal Service from ordering the posters taken down.

In 1993, Congress passed the Hatch Act Reform Amendments, which increased the rights of federal employees to take part in political activities while off the job, but strengthened prohibitions against political activity while on duty or at the workplace. The restrictions on political activity include general prohibitions, not limited by time or place, such as a ban on federal employees using official authority to affect an election, engaging in political fundraising, and running for partisan political office, and specific on-the-job circumstances in which all political activity is banned. While at work, the Hatch Act prohibits federal employees from engaging in political activity: (1) while on duty, (2) in any room or building occupied in the discharge of official duties by an individual employed or holding office in the federal government, (3) in government uniform, or (4) while using a government vehicle. While the Hatch Act does not itself define “political activity,” the Office of Personnel Management’s regulations define “political activity” to mean an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.

The regulations contain examples of prohibited conduct, including banning employee from wearing partisan political buttons or displaying partisan political signs, stickers, or badges while he or she is on duty or at his or her place of work. Despite this example in the regulations, the union argued (and the district court agreed) that the posters hung on the union bulletin boards by federal employees that compared the voting records of political candidates were not “political activity” under the Hatch Act because the display of the posters was not “coordinated with or in concert with a political party or candidate.” The Court of Appeals reversed the district court, finding the definition of “political activity” in the Hatch Act (as defined by OPM’s regulations) broad enough to encompass the posters, which the court noted were “directed towards the success or failure of a political . . . candidate.” Moreover, the court noted that even if the posters were hung by employees who were “off duty,” they were hung in a room occupied in the discharge of official duties and thus was prohibited by the Hatch Act.

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **