Hatch Act Enforcement Tightens With New Guidelines Targeting Political Activities of Federal Employees

The White House is visible through the fence at the North Lawn on June 16, 2016. (Andrew Harnik/AP Photo)

In an update to enforcement of the Hatch Act, the U.S. Office of Special Counsel (OSC) on May 20 issued new guidelines aimed at clarifying and tightening the rules governing political activities by federal employees.

The Hatch Act restricts the political activities of government employees to ensure a nonpartisan federal workforce. The Act has seen evolving interpretations and enforcement mechanisms since its enactment in 1939.

The new advisory opinion from OSC head Hampton Dellinger outlines several key changes that will impact how these regulations are applied, particularly concerning White House personnel and the display of political items in federal workplaces. Mr. Dellinger was recently confirmed by the U.S. Senate and took office in March, with prior experience overseeing the U.S. Department of Justice Office of Legal Policy.

Mr. Dellinger wrote in an opinion article published in Politico on May 20 that the updates are meant to target a loophole that has allowed senior White House personnel to evade full compliance with the Hatch Act.

He noted that the changes mark a decisive move to ensure that the law’s restrictions on political activities apply uniformly across all federal employees, including top White House staff.

Mr. Dellinger emphasized the importance of balancing robust Hatch Act enforcement with protecting federal employees’ speech rights.

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“While this Advisory Opinion updates OSC’s approach to Hatch Act enforcement in certain areas, it is important to note what remains unchanged,” the advisory opinion announcing the changes stated. “OSC will continue to provide extensive training, education, and advice to inform federal agencies and employees of Hatch Act obligations. Relatedly, OSC continues to encourage government workers to come into immediate compliance once alerted of violations. Quickly remedied and minor violations often can be addressed and closed through warnings from OSC rather than a filed case.”

Enforcement Actions and White House Personnel

The OSC has announced a shift in how it handles Hatch Act violations by White House commissioned officers and other senior staff.

Previously, because of the absence of a quorum in the U.S. Merit Systems Protection Board (MSPB) and historical legal opinions, the OSC would refer cases involving White House personnel to the president.

With the MSPB now having a quorum, the OSC will bring such cases directly to the MSPB for adjudication, in line with the clear statutory mandate, according to an advisory opinion announcing the changes. This change underscores that all non-Presidential Senate-confirmed appointees (PAS) will be subject to the same disciplinary processes as other federal employees.

Political Activity Restrictions Extended

In an effort to create a uniform and clear standard, the OSC has also updated its guidance on the display of political candidate or party items in the federal workplace.

Previously, there was a distinction between items supporting political candidates, which were prohibited only during election periods, and those supporting political parties, which were banned year-round. The new rule eliminates this distinction, imposing a year-round ban on both types of items.

This change reflects the increasing association of candidates with specific political parties, rendering any distinction between candidate and party items practically insignificant.

Another notable update concerns former federal employees. The OSC clarified that the Hatch Act’s prohibitions apply even after an employee has left federal service.

This means that individuals who violated the Hatch Act while in government can still face disciplinary actions post-resignation. This extension ensures accountability and deters future violations, maintaining the integrity of federal service, according to the advisory opinion.

Balancing Free Speech and Political Neutrality

The OSC has also addressed the balance between protecting federal employees’ speech rights and ensuring political neutrality in government operations.

While the Hatch Act restricts overt political advocacy by government employees, it allows for certain policy-related discussions that may touch on politically sensitive issues.

“Importantly, OSC will always find violations of the Hatch Act when on-the-job speech or conduct includes express advocacy (i.e. please support the election of, vote against, donate to, or variations thereof),” the new policy explained. “Beyond that, prohibited advocacy can also include using words, phrases, or images associated with a specific candidate or party, particularly when they appear alone, virtually alone, or gratuitously.”

The new advisory reaffirms that clear advocacy for or against political candidates or parties in the workplace remains prohibited. However, discussions involving policy matters related to federal programs or legislative proposals may be permissible, provided they do not serve as covert political endorsements.

The OSC’s updated enforcement approach is an attempt to ensure that federal employees adhere to political neutrality and accountability.