A political-themed flag was spotted on a New York Post Office flagpole over the weekend, hanging under an American flag and a POW/MIA flag. According to multiple news reports, the political flag was not hung by postal workers and was quickly removed after authorities were alerted. An investigation is now underway.
The Hatch Act, a federal law passed in 1939, prohibits partisan political activity on federal property and limits the political activities of federal employees. Named for Senator Carl Hatch of New Mexico, it also prohibits civil-service employees in the executive branch – except for the president and vice president – from engaging in some forms of political activity.
LESS RESTRICTED VS. FURTHER RESTRICTED
Not all employees of the executive branch – which includes independent agencies, commissions and committees – are covered by the same restrictions. Those who are considered under the Hatch Act to be “Less Restricted” may engage in political activity while off-duty, outside of Federal buildings, out of uniform (if there is any), and without using their respective position title or Federal resources. However, most agencies required that employees who wish to volunteer for political campaigns must seek prior guidance on the relevant rules.
Moreover, those in senior executive positions within the executive branch are considered under the Hatch Act to be “Further Restricted,” and may not engage in certain political activities, even on their own time. In addition, all federal employees are prohibited from soliciting political contributions from any person or organization at any time – and that includes hosting a political fundraiser at one’s personal residence.
It is also important to note that federal employees are generally barred from soliciting donations to a campaign, political party, or political action committee (PAC), while employees are also prohibited from sending or forwarding campaign fundraising emails, reposting or sharing requests for donations on social media. In fact, when using government-issued devices, nothing politically related should be shared or posted on social media.
This is certainly not the time for those working in the federal government, especially the executive branch, to push their luck when it comes to the Hatch Act.
“Presidential election years are always years where Hatch Act related conduct is more heavily scrutinized,” explained Stephanie Rapp-Tully, partner in the Tully Rinckey Law Office’s Washington, D.C. office.
“With social media being the way it appears most Americans engage in political discussions, the opportunities for employees to commit a Hatch Act violation are more likely than decades prior,” Rapp-Tully told ClearanceJobs. “This is complicated by more employees working from home, and those lines between “on duty” and “off duty” being more blurred. Employees should take a protective approach to this election season and if there is any question about whether conduct could violate the Hatch Act, given Office of Special Counsel’s heightened scrutiny, the employee should consult an attorney.”
OFFICE OF SPECIAL COUNSEL LOOKS TO CRACK DOWN
Earlier this month, the Office of Special Counsel (OSC) also announced it would increase its Hatch Act oversight, and some former federal employees could face proceedings before the independent, quasi-judicial Merit Systems Protection Board despite their departure from government service.
“OSC can generally pursue disciplinary action in Hatch Act cases by filing complaints with the Merit Systems Protection Board (MSPB). However, certain Senate-confirmed Presidential appointees (PAS) were exempted from those enforcement actions at the MSPB,” Allen Shoikhetbrod, managing partner of Tully Rinckey’s Albany Office, also told ClearanceJobs.
“For PAS, OSC was required to submit a report to the President of the United States (POTUS) describing the violations, and the POTUS may then take appropriate action,” Shoikhetbrod added. “There is no similar exemptions for other political appointees, such as other White House commissioned officers. Now, however, OSC has announced it may consider pursuing disciplinary actions for Hatch Act violations of non-PAS political appointees, including those serving in the White House, by filing a complaint with the MSPB.”
As noted, OSC will now consider taking action against those who engaged in violations as a federal employee, but have since left the federal government.
“The new changes close a ‘loophole’ where senior White House personnel were not subject to full enforcement mechanisms,” Shoikhetbrod continued. “Hatch Act violations are typically a hot topic during an election season. There is a new Special Counsel, Hampton Dellinger, who was recently sworn in, and likely wants to make an immediate impact.”
