How to navigate the Hatch Act

Former special counsel offers do’s and don’ts for federal employees to follow

Political Activity (Hatch Act)

The Hatch Act of 1939, which imposes restrictions on partisan political activities by federal employees, doesn’t often make headlines. But the law, once known as “an act to prevent pernicious political activities,” has been in the news recently as controversy over alleged political briefings at the General Services Administration has embroiled senior officials at the White House and top political appointees at federal agencies.

This raises the issue of what rights and responsibilities do federal employees have under the Hatch Act. Federal Computer Week news editor Jason Miller asked Washington attorney Elaine Kaplan, former special counsel at the Office of Special Counsel, an independent agency, to provide some answers. The special counsel’s office enforces the Hatch Act and whistle-blower laws.

FCW: What right to privacy do federal employees have when they use government e-mail systems?

Kaplan: Federal employees have no right to privacy in their government e-mail accounts. Most, if not all,  agencies have official e-mail policies that limit personal use of government e-mail systems and the Internet. Those policies also notify employees that anything sent through the government e-mail system is subject to review by the agency.

FCW: How prudent is it for employees to keep their political views to themselves in the government workplace?

Kaplan: I cannot answer that question in the abstract. The extent to which employees may prudently share their political views with others in the government workplace depends completely upon the context in which the political discussions occur.

FCW: If a federal employee is being investigated for an alleged Hatch Act violation, what legal recourse does he or she have? Is that employee entitled to Justice Department representation under the Code of Federal Regulations?

Kaplan: Federal employees are not represented by the Justice Department in Hatch Act cases. They are entitled to be represented by their own counsel during Hatch Act investigations conducted by the Office of Special Counsel and during any subsequent prosecution.

If the special counsel finds a Hatch Act violation and decides to prosecute that violation, he or she must file a complaint against the subject employee with the Merit Systems Protection Board. An evidentiary hearing is held before an administrative law judge, and it is the special counsel’s burden to establish that the employee violated the Hatch Act.

The full Merit Systems Protection Board hears appeals for the administrative law judge’s decision. The Court of Appeals for the Federal Circuit hears appeals from the decision of the Merit Systems Protection Board. If an employee prevails, he or she may be entitled to recover attorney fees.

FCW: What types of e-mail messages should federal employees be concerned about in terms of possible Hatch Act violations? Are political jokes or cartoons a potential problem?

Kaplan: The Hatch Act prohibits employees from engaging in “political activity” when on duty or in a government building. Political activity is defined as activity directed toward the success or failure of a candidate for election or a political party. In light of the lack of clarity about how this definition of political activity might apply in any particular circumstance, and given the Office of Special Counsel’s aggressive enforcement and broad reading of the Hatch Act in this context, employees should not send political jokes or cartoons through the agency e-mail system.

FCW: What should employees do if they are concerned about whether an activity is a Hatch Act violation?

Kaplan: They have several options. They can contact the Office of Special Counsel for an advisory opinion. They also can contact their designated agency ethics officer for advice. Employees may also seek the advice of private attorneys or their unions.

FCW: With the impact of technology on the federal workforce, does the Hatch Act need to be updated?

Kaplan: I do not see a need for the Hatch Act to be updated to address the impact of technology. The general rule that employees should follow is that they should not use agency resources, including the e-mail system or their government computers, to engage in political activity.

FCW: Do you consider the investigation started by the House Oversight and Government Reform Committee and sent to the Office of Special Counsel regarding alleged political briefings at GSA a common type of investigation under the Hatch Act?

Kaplan: It is not uncommon for OSC to investigate allegations that political activity has occurred on duty. During my tenure, I do not recall receiving complaints about meetings held by political appointees at the worksite to discuss election-related matters. My sense is that briefings among political appointees to discuss past election results or prospects for future elections have routinely taken place through many administrations.

My assumption is that some care was taken in the past to avoid turning these briefings among political appointees into occasions for soliciting campaign workers or engaging in other forms of electioneering. What makes the GSA situation special are the allegations that, during the meeting, [GSA Administrator Lurita Doan] specifically expressed a desire to use the GSA to “help” Republican candidates and may have made some suggestions for how to do so. The GSA case, therefore, involves not only allegations of on-duty political activity, but possible violations of the Hatch Act’s prohibition against the use of official authority to influence the outcome of an election.

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