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Hatch Act Penalties: Non-Feds Still Face Violations like Federal Employees

August 16, 2021

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Due, in part, to the past two presidential administrations, the general public knows that the Hatch Act prevents federal employees from participating in certain political activities. Some of these include: utilizing a Social Media account in their official capacity to engage in political activity; sending partisan political emails while on duty or in the workplace; or, utilizing their official position to influence or interfere with upcoming elections.

In addition to restrictions on federal employees, the Hatch Act also applies to state and local municipality employees, including the District of Columbia. Notably, the Office of Special Counsel has jurisdiction over any alleged violations by state and local municipality employees.

The Office of Special Counsel is authorized by statute to investigate violations of the Hatch Act, 5 U.S.C. § 1216(a)(1)(2). When the Office of Special Counsel charges an employee with violating the Hatch Act, the charge is presented to the Merit Systems Protection Board for adjudication, 5 U.S.C. §§ 1215, 1504-1508, 7321-7326. This is true of any violation of the Hatch Act; even those alleged to have been committed by a state, D.C., or local employee. The Office of Special Counsel and Merit Systems Protection Board have absolute jurisdiction over Hatch Act violations and those charges must go through both of these entities as prescribed by 5 U.S. Code § 1504.

So what happens when the Office of Special Counsel investigates a non-federal employee for a Hatch Act violation? Essentially, all of the same steps are followed as they would be if they were a Federal Employee, except the Office of Special Counsel would be looking to see if the state, D.C., or local agency that employs the person alleged to have violated the Hatch Act receives federal grants or loans. Then, the Office of Special Counsel will assess whether, as a normal and foreseeable incident of their employment, the employee performed duties in connections with those federally received funds. In these cases, the Office of Special Counsel can bring this Hatch Act Violation to the Merit Systems Protection Board.

If a charge is presented to the Merit Systems Protection Board for a state or local employee, there are distinct differences that could result should a violation be found. For a federal employee, they can be removed, reduced in grade, debarred from federal employment for up to five years, suspended, issued a letter of reprimand, or subject to a civil penalty that will not exceed $ 1,000, 5 U.S.C. § 7326(2). However, for a non-federal employee, there is only one penalty available: removal, 5 U.S.C. § 1506.

For non-feds, the employing agency can choose not to remove the employee. However, if they do, they must forfeit their federal loans or grants in the amount of up to two years of the employee’s salary. If another state, D.C. or local entity employs the removed employee within eighteen months of their removal, that agency, or the agency from which the employee was removed, may lose some of their federal funding.

Whether you are a federal or non-federal employee, the Hatch Act may apply to you. It is important to know the differences in how the Hatch Act applies and the differences in the associated penalties. For example, if a local municipality makes the wrong decision, they may find themselves with a significantly reduced operating budget because of that employee’s actions. This result could lead to public unrest and a risk of losing an upcoming re-election bid. On the other hand, if federal employees misinterpret the Hatch Act provisions and believe the provisions do not apply to them, they may face removal from federal service. Regardless of being a federal or non-federal employee, if someone believes that they may have violated the Hatch Act, they should immediately contact an experienced employment firm or attorney for advice on how to proceed.

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