By Dan Gephart, February 19, 2020
As a young child, I never dreaded a trip to the doctor’s office because that meant I would get my hands on an issue of Highlights for Children. I’d flip right past that boring Timbertoe family and dive into the latest adventures of Goofus and Gallant.
These cartoon brothers (or were they the same person?) explained right and wrong in the simplest of terms. You know what’s not so simple? Navigating a hyper-partisan presidential election season as a federal employee.
For more than 80 years, the Hatch Act has kept political activity out of the day-to-day running of the federal government. But the Hatch Act is under fire. High-ranking administration officials flaunt the law, and critics claim that the Hatch Act restricts free speech. In an op-ed for Federal News Network, Special Counsel Henry Kerner countered these claims and declared that the Hatch Act remains “foundational to good government.”
I agree with the Special Counsel.
In these unique times, it’s critical that you, your employees and all others who fall under the auspices of the Hatch Act execute your duties as civil servants in a non-partisan manner – and that the taxpayers you serve know they can count on you to do that. It’s not easy, and it’s about to get even more difficult. Super Tuesday is a couple of weeks away, but it’s still 9 long months until Election Day. If you feel like you’re being assaulted by political clatter now, hold on. This racket is getting turned all the way up to 11.
So we’re introducing you to a new Goofus and Gallant to help you understand how you can participate in the political process without violating the Hatch Act. Please welcome Hero and Half-wit.
[Note: These examples are not meant to make any political statements themselves. Also, these examples were created by FELTG, not OSC, but they are based upon OSC guidance. It is the OSC who would have to determine whether to bring a Hatch Act violation before the Merit Systems Protection Board. And those decisions are made on a case-by-case basis. These examples are meant to provide a distinction between various levels of political speech.]
Photographs
- Hero has the official Presidential photograph of Donald J. Trump framed on her office wall.
- Half-wit has the official Presidential photograph of Donald J. Trump hanging upside down on her office wall with the words “Impeached” written in big red letters.
- Hero has had a framed photo of herself and her then-new husband with Michael Bloomberg hanging on her cubicle wall for the last eight years. The photo was taken at her wedding, and the former New York mayor, who is her second cousin, was a guest.
- Half-wit has a picture of herself and her husband with Joe Biden on her cubicle wall. The photo was taken at a recent Biden campaign event.
It’s not a stretch to conclude that the Hatch Act prohibits federal employees from displaying pictures of political candidates in the federal workplace. There is an exception. However, it’s an awfully difficult bar to reach, as OSC pointed out way back in a 2008 advisory opinion.
“We advise that an employee would not be prohibited from having a photograph of a candidate in his office if all [our emphasis] of the following apply: the photograph was on display in advance of the election season; the employee is in the photograph with the candidate; and the photograph is a personal one.”
In a 2019 advisory opinion, OSC stated that the Hatch Act does not prohibit the display of official photographs of the president in the workplace. However, the photograph must be from an official source – either the White House or the Government Publishing Office. That means no pictures distributed by a political party, the president’s campaign or any other partisan organization. Also, official presidential photographs may not be altered in any way, and must be displayed in a traditional size and manner. Sorry, no life-size cutouts.
Political books and campaign material
- During her lunch break, Hero quietly reads the latest political screed by a cable news personality in the cafeteria.
- While away from her desk on lunch break, Half-wit’s computer screen saver flashes Make America Great Again, which her coworkers and some members of the public can see.
OSC says that displaying campaign material qualifies as a political activity, so that’s a big NO on MAGA screen savers. On the other hand, merely reading a book about politics or political candidates while in the federal workplace is not a Hatch Act violation.
Bumper Stickers
- Hero parks her SUV with its Trump/Pence 2020 bumper sticker in a private garage for which the employee receives a subsidy from her agency.
- While on federal duty, Half-wit drives her car, which not only has a Trump/Pence 2020 bumper sticker, but also has the front hood covered with a wrap of President Trump giving a thumbs up.
The Hatch Act regs at 5 CFR 734.306 state that an employee may place a partisan political bumper sticker on his personal vehicle and park that vehicle in a federal parking lot or garage. An employee may also park the car with a bumper sticker in a private lot or garage for which the employee receives an agency subsidy. OSC has even ventured to suggest that two bumper stickers for different candidates is probably OK.
However, a May 2018 advisory letter cautioned against “displaying other partisan political materials, or even bumper stickers, in such a way that makes the vehicle appear to be a campaign mobile.” It’s my opinion, that a hood wrap is probably crossing that line, and without question, that’s the case when the car is being used while on duty. Oh, and if you don’t think car wraps like Half-wit’s exist, you should spend some time in Florida.
- Hero receives an email on her work account inviting her to contribute to Pete Buttigieg’s campaign. She immediately deletes the email.
- Half-wit clicks on the link in the Pete Buttigieg Campaign email, and then forwards the email to her co-workers.
This is a real Hatch Act danger area. The definition of a partisan political email is broad – it’s any email that is directed at the success or failure of a partisan group or candidate in a partisan race. Simply receiving a partisan political email while on duty does not violate the Hatch Act. If that happens, hit delete. Once you forward the email, you’ve committed a Hatch Act violation.
Social media
- At home, while no longer on duty, Hero likes a friend’s Facebook post expressing anger at Senator Majority Leader Mitch McConnell’s failure to act on specific legislation. The post suggests that friends in Kentucky vote for McConnell’s competitor Amy McGrath.
- At home while no longer on duty, Half-wit refers to her official government bio whenever she posts on her Twitter account titled Moscow Mitch, which regularly suggests that followers contribute to Amy McGrath’s 2020 Senate campaign.
Social media complicated the Hatch Act so much that OSC had to create a whole new set of guidance several years ago. With time, those guidelines have started to make a lot of sense. Whether you are a less-restricted or further-restricted employee, you may express your opinions about a partisan group or candidate by posting, liking, sharing, tweeting or retweeting. However, you cannot:
- Engage in political activity on social media while on duty or in the workplace.
- Refer to your official title or position while engaged in political activity.
- Suggest that anyone make political contributions.
Further-restricted employees are also cautioned against posting and linking to a partisan group or candidate’s Facebook or Twitter accounts, as well as sharing or retweeting content from those accounts.
For more information, I suggest you read our recent interview with the OSC Hatch Act Unit and visit the OSC website where there is a lot of guidance. And if you can’t find an answer, no problem. All you need to do is ask. If you are seeking advice about your political activity or the activity of another employee, you may request an advisory opinion from OSC by calling (800) 854-2824 or (202) 804-7002. You can also email the Unit at [email protected].
