By William Wiley, August 29, 2017

Oh, boy. It hit the fan a couple of weeks ago, didn’t it. “Postal Workers Campaign for Clinton on Government Time!” screamed one headline I saw. Several Congressman have expressed outrage and a couple of oversight chairmen have asked various agencies to produce information related to federal employees participating in “union-official political activity.” Other postal employees had to be paid overtime to cover for the employees out campaigning. The US Office of Special Counsel reportedly issue a finding that postal officials violated the Hatch Act by granting leave requests for employees to campaign for union-endorsed candidates. If you didn’t read closely, you might have concluded that the postal service actually hired individuals just so they could campaign for Democrats.

Well, I just don’t get it. According to OSC’s website, the Hatch Act says that federal employees, like these union folks at the postal service, cannot “engage in political activity while on duty or in the workplace. Federal employees are ‘on duty’ when they are in a pay status, other than paid leave, or are representing the government in an official capacity.” As for off-duty conduct, away from a federal worksite, “federal employees may express their opinions about a partisan group or candidate in a partisan race.”

As for the status of the postal service employees who were campaigning politically, every report I can find that gives any detail says that they were on leave without pay. As I read the Hatch Act and OSC’s guidance, if the individual is not “on duty,” then he is free to “express opinions about a partisan candidate” (e.g., campaign). I’ve been around a long time, and that’s always been the rule. Be careful and refrain from political activity:

  • When on the clock,
  • On government property, or
  • Using your governmental position in some way (sorry we didn’t get this article out sooner, Secretary Carson).

If these guys were in an LWOP status, where’s the Hatch Act prohibition on campaigning? And why in the world would it be the postal service’s management officials who approved the LWOP who have been found by OSC to have engaged in a “systematic violation” of the Hatch Act? If you have had experience with collective bargaining, you know that unions often bargain for time off for things; sometimes paid official time (e.g., to represent in Weingarten meetings) and sometimes unpaid time (e.g., to attend union conventions).

Is the violation of the act found in the fact that the agency knew that the LWOP was being used to campaign? Even if the agency knew of the purpose when it agreed to the excused time off, how does that make it a Hatch Act violation? Individuals are free to campaign as long as they are not on duty time. These individuals were not on duty time. They have a Constitutional right to express their political views (freedom of speech and association, as I remember my Constitutional law hornbook). Just because they earned the right to be on non-duty time through collective bargaining doesn’t seem to me to make this into a Hatch Act violation on the part of agency management. What if an employee had individually asked for LWOP (or annual leave) to campaign. Would it have been proper for agency management to deny that request? I don’t think so. Denying a leave request for political reasons seems a lot more like a Hatch Act violation than does what happened here.

I’ve never worked at OSC and been responsible for giving out Hatch Act advice. However, I have helped adjudicate a couple of charges of Hatch Act violations brought by OSC. Even so, I am the last person in the room to claim to be a Hatch Act expert. And with all those disclaimers, I have to admit ignorance. How this is a Hatch Act violation on the part of postal service management (or the individuals in the postal service union) has got me befuddled. I think I’ll take some leave without pay to consider it more deeply. Wiley@FELTG.com

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