The OSC has issued controversial new guidance saying that while generalized praise or criticisms the administration’s policies and actions are not necessarily banned political activities under the Hatch Act, that advocating for or against impeachment of a partisan candidate for office is prohibited, as is activity related to “resistance” in circumstances where the Hatch Act applies.
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.
It was more definitive regarding advocating for or against impeachment of a partisan candidate—including President Trump, since he has formally declared for reelection—because that is directly related to the candidate’s eligibility to seek or hold office. However, such statements regarding someone who is not a candidate would not be considered political activity, it says.
The guidance also says that terms such as “resistance” and “#resist” have become “inextricably linked with the electoral success (or failure) of the president” and that their usage is considered political activity “unless the facts and circumstances indicate otherwise.” It added, though, that the presumption applies only in the work-related circumstances in which the Hatch Act applies, and use of such terms is not prohibited when not directed to the failure or success of a political party, candidate or group.
More on the Hatch Act and politicking in the federal workplace at ask.FEDweek.com
“This guidance is a broad reach that employees may find confusing. It could unnecessarily have a chilling effect on employees’ First Amendment free speech,” the NTEU union said. The AFGE union said it “will serve only to strike fear into America’s workforce and prevent future workers from blowing the whistle on waste, fraud, and abuse.” Several public advocacy and whistleblower support groups echoed that view.
The Hatch Act prohibits federal employees from sending messages through social media that advocate for a political party or candidate for partisan public office while on duty or in a federal building; engaging in such activity may subject them to disciplinary action. There is no distinction regarding the amount of political content, nor regarding the number of people receiving the message.
– Link: Social Media Policy for Federal Employees