Issue Briefs

Following are excerpts from testimony by the Office of Special Counsel at a House hearing considering revisions to the Hatch Act political Activities restrictions on federal employees.

OSC’s primary mission is to protect the merit system and provide a safe and secure channel for government whistleblowers who report waste, fraud, abuse, and threats to public health and safety. The agency also protects veterans and service members from discrimination under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Finally, OSC enforces the Hatch Act, which was enacted in 1939 to restrict partisan political activity of federal employees and certain employees of state and local governments.

On June 14, 2011, I was sworn in as Special Counsel. During my initial months in office, I carefully reviewed OSC’s Hatch Act program. I quickly discovered the overreach of this otherwise important federal law.

At its best, the Hatch Act keeps partisan politics out of the public workplace and prevents those in political power from abusing their authority to advance partisan political causes. At its worst, however, the Hatch Act causes the federal government to unnecessarily interfere with the rights of well-qualified candidates to run for local office.

This concern, along with several others about the current state of the law, prompted me to send Congress a legislative proposal for amending the Hatch Act in October of last year. I applaud the bipartisan group of lawmakers that introduced legislation in March to make these proposed reforms a reality.

The Hatch Act Modernization Act of 2012, H.R. 4152, was introduced on March 7, 2012.

Companion legislation, S. 2170, was introduced on the same day in the Senate. And, similar legislation, H.R. 4186, was also introduced in the House on March 8, 2012.

Modifying Overly-Restrictive Penalty Structure

The Hatch Act Modernization Act of 2012 would also modify the Hatch Act’s penalty structure for federal employees. OSC supports this reform because it will result in more flexibility and fairness in OSC’s enforcement efforts. Current law requires that employees be removed from office for violating the Hatch Act — unless the Merit Systems Protection Board (MSPB) unanimously finds that the violation does not warrant removal. Even in these cases, the MSPB may not impose a penalty of less than 30 days’ suspension without pay. This structure is overly restrictive, can lead to unjust results, and may even deter agencies from referring potential violations to OSC.

The pending legislation would amend the penalty provisions of the Hatch Act to mirror the range of penalties provided in 5 U.S.C. § 1215, which apply to other disciplinary actions under OSC’s jurisdiction. Under section 1215, depending on the severity of the action and other mitigating factors, the Board may impose a range of disciplinary actions consisting of removal, reduction in grade, debarment from federal employment for a period not to exceed 5 years, suspension, reprimand, or an assessment of a civil penalty not to exceed $1,000. OSC supports this reform, and believes it will aid our enforcement efforts in federal sector cases.

Other Issues for Congress to Consider

In prior communications with Congress, OSC has noted several other potential areas for legislative reform of the Hatch Act to ensure that OSC’s advisory and enforcement efforts are consistent with both congressional intent and the realities of the 21st century federal workplace.

It is also important to clarify ambiguities in the law so that employees have full and fair notice of their obligations under the Hatch Act.

Codify a Definition of "Political Activity" and Clarify the Definition of "Federal Workplace" The Hatch Act prohibits most federal employees from engaging in political activity while on duty, in uniform, in the federal workplace, or while using a federal vehicle. The statute, however, does not define "political activity." The Hatch Act’s attendant regulations define the term as activity directed at the success or failure of a candidate for partisan political office, political party, or partisan political group. 5 C.F.R. § 734.101. Congress should consider defining "political activity" in the statute to make clear its intent regarding this prohibition and to provide clearer notice to federal workers on the law’s prohibitions. OSC believes that the current definition in the regulations is appropriate.

In addition, the restriction on political activity can be confusing given technology-driven workplace developments not anticipated in 1993, when Congress last reformed the Hatch Act.

For example, there is confusion about the application of the "on-duty" political activity prohibition to the telework model. Current telework policies have led to a large number of employees working from home several days a week and using government issued equipment to perform their duties where they reside. In general, the regulations define federal workplace as federally owned or leased space. Employees’ homes do not meet the definition of federal workplace. While extending the definition of the federal workplace to an employee’s home would be inappropriate, Congress may want to consider clarifying that the "on-duty" political activity prohibition applies to an employee while teleworking.

Additionally, although the statute currently restricts the use of government vehicles to engage in political activity it is silent as to government laptops, Blackberries, and iPhones. Agencies should be encouraged to develop clear computer-usage and government equipment policies.

And, Congress may want to consider whether the use of ".gov" email addresses to engage in political activity, even while off duty, is consistent with the goals of the Hatch Act.

Similarly, the internet and social media have dramatically changed the way we gather and share information, communicate our views, or engage in the political process. These changes were not contemplated when the Hatch Act was last amended to restrict political activity on duty or in the federal workplace. OSC has issued detailed advisory opinions on the use of social media and the Hatch Act. Congress may want to consider OSC’s guidance in this area in any effort to reform the Hatch Act.

Clarify the Scope of the Exemption for High Level and White House Employees The Hatch Act, under 5 U.S.C. § 7324(b), exempts certain employees from the prohibition against engaging in political activity while on duty or in the federal workplace, as discussed above. This exemption includes an employee paid from an appropriation for the Executive Office of the President (EOP), the duties of whose position continue outside normal duty hours and while away from the normal duty post. The Committee’s June 2011 Hatch Act hearing highlighted differing views on the proper scope of this exemption. Clarifying the scope of the §7324(b) exemption would benefit OSC’s advisory efforts and all impacted employees.

In addition, section 7324(b) applies only to a Presidentially-appointed, Senate-confirmed (PAS) employee who "determines policies to be pursued by the United States in relations with foreign powers or in the nationwide administration of Federal laws." Clarifying the scope of this limitation would similarly benefit OSC’s advisory efforts and impacted employees.

District of Columbia Employees The Hatch Act, under 5 U.S.C. § 7322, includes in the definition of employee an individual employed or holding office in the government of the District of Columbia, other than the Mayor, a member of the City Council, or the Recorder of Deeds. According to this definition, the Hatch Act currently applies to all District of Columbia employees, including those in the judicial and legislative branches of government. In contrast, the Hatch Act’s application to federal, state and local employees is limited to executive branch employees. Any Hatch Act reform should consider this discrepancy. Pending legislation in the House and Senate would move District of Columbia employees from the provisions of the federal Hatch Act to those that cover state and local employees under chapter 15 of title 5. The change would address the discrepancy cited above.

Statute of Limitations Under 5 U.S.C. § 1216(a)(2), OSC is required to investigate Hatch Act allegations after receiving a complaint, regardless of when the underlying conduct occurred. Congress has not provided a statute of limitations for Hatch Act allegations, and may want to consider this issue as it pursues other reforms to the Hatch Act.

Political Activity of State and Local Elected Officials Pending legislation in the House and Senate would allow sheriffs to participate in designated political activities in their official capacity without violating the Hatch Act’s prohibition on the use of official authority for political purposes. These proposed legislative changes are consistent with OSC’s current understanding of the law in this area. In fact, OSC recently issued an advisory opinion that clarifies the scope of permissible political activity for all state and local elected officials. For example, in recognition of the fact that these individuals already hold a partisan political office, OSC concluded that state and local elected officials would not violate the Hatch Act by wearing their uniforms or using their titles while campaigning or supporting another candidate for office. Congress may want to consider codifying these rules, which would provide greater clarity to affected state and local elected officials.