With the fall season comes football, pumpkin-flavored everything and Election Day. This year it’s the highly anticipated midterm elections, and federal employees may be tempted to get involved by making political donations, campaigning for a candidate, attending rallies or just chatting about politics with co-workers.
Federal civilian employees need to be careful, however, not to run afoul of the Hatch Act, which restricts partisan political activity while on the job, even for those working remotely. How severely it restricts activities depends on your job. In the first installment of our election ethics series, we will break down how federal employees are grouped with respect to the Hatch Act. Future pieces will look more closely at what employees within each group can and can’t do.
Most federal employees fall into the less restricted category and have a “fairly long” list of partisan political activities in which they can participate while they’re not on duty, Debra D’Agostino, founding partner of the law firm Federal Practice Group, previously wrote in Government Executive.
For employees in this category, the long-standing rules have been: don’t engage in political activity while at the workplace or on duty. Also don’t engage in this kind of activity in an official capacity anytime, and don’t solicit or receive political contributions, D’Agostino explained.
Political appointees who are Senate confirmed also fall into the less restricted category, but don’t need to worry as much about the “prohibition against engaging in political activity while on duty or in the federal workplace,” an attorney in the Hatch Act division of the Office of Special Counsel, which enforces the law, told Government Executive. “And that’s mainly because they’re considered to be on duty all of the time because of the nature of their position.” White House commissioned officers, who are the top-ranking White House officials, are also exempt from the on-duty prohibition. That being said, federal funds may not be used for these activities.
Also, as outlined in a 2007 memo from the Congressional Research Service, “‘exempt’ personnel are prohibited from inviting, requesting, asking or suggesting to other federal employees, who are below those officials in rank and who are not exempt from the on-duty or on-premises restriction of the Hatch Act, to attend and to participate in meetings, or strategy or ‘informational’ sessions, which are ‘directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.’ ”
Employees in the further restricted category work at intelligence and enforcement-type agencies or in certain classes of positions. While these employees may still take part in some political activity, they are more limited than those in the “less restricted” category due to the sensitive nature of their positions.
“In addition to the prohibitions that apply to other federal employees, members of this further restricted group are also prohibited from, for example, taking an active part in any political management or partisan political campaign, or ‘sharing,’ ‘liking,’ or ‘retweeting’ any social media post directly from a campaign or political party or requesting contributions for a candidate or political party,” wrote D’Agostino.
Employees from the following agencies or agency components, except those who are presidentially appointed and Senate confirmed, fall under this section: the Federal Election Commission; Election Assistance Commission; FBI; Secret Service; CIA; National Security Council; National Security Agency; Defense Intelligence Agency; Merit Systems Protection Board; Office of Special Counsel; Office of Criminal Investigation of the Internal Revenue Service; Office of Investigative Programs of the United States Customs Service; Office of Law Enforcement of the Bureau of Alcohol, Tobacco, and Firearms; National Geospatial-Intelligence Agency; Office of the Director of National Intelligence; Criminal Division of the Justice Department; and National Security Division of the Justice Department.
Administrative law judges, career members of the Senior Executive Service, contract appeals board members and administrative appeals judges are also part of the more restricted group.
The Military, and Other Special Cases
Military service members are not subject to the Hatch Act; rather a Defense Department directive governs their political activity, said the OSC attorney. However civilian employees at Defense are covered by the Hatch Act.
Similarly, the U.S. Public Health Service Commissioned Corps is not covered by the Hatch Act, but “Public Health Service officers are subject to strict limitations on their political activity that parallel the provisions of the Hatch Act as they existed prior to the 1993 amendments,” a spokesperson told Government Executive.
Most political appointees who are not Senate confirmed and work at places other than the White House—such as those in Schedule C or the non-career Senior Executive Service—“are subject to the Hatch Act the same way as career employees,” said the OSC attorney. “For example, a Schedule C at a further restricted agency, such as the FBI, is further restricted. They are not exempt from any of the prohibitions.”
However, some agencies that would otherwise fall under the “less restricted” category have more stringent rules for their political appointees. These include the State, Defense, Homeland Security and Justice departments, the attorney noted.
“Be Aware” of Consequences for Violations
“Federal employees should be aware of what could happen if they violate the Hatch Act,” Stephanie Rapp-Tully, partner at the law firm Tully Rinckey, who specializes in federal employment law, told Government Executive. “They could be removed, reduced in grade, debarred from federal employment for five years, suspended, issued a letter of reprimand or subject to civil penalties [up to] $1,000.”
She added, “that’s a wide range of potential penalties and it’s better to be safe than sorry.”