Political Activities as a Fed: The Hatch Act

It's all politics all the time lately in the media. As a fed, we have some restrictions on what we can and cannot do at work and at home when it comes to political activity. We want to keep you out of hot water, particularly since the Hatch Act's authorized penalty is removal from your job as a fed.

According to the Washington Post, "there have been 88 complaints of Hatch Act violations" since October 1, 2015. Five of those resulted in disciplinary actions and six more in informal settlements with penalties ranging from three to fourteen days suspension.

And while high-placed political appointees get a pass with no punishment for clear violations, the little guy gets hammered. And since we're all little guys (you too ladies), we need to watch out. Below is a quick question-and-answer list put out by the EPA Office of General Counsel on what you can and cannot do:

This law proscribes the political activity of federal employees.  There are certain activities that we can never do, no matter what time of day or even in the privacy of our own homes.  And there are other activities that some of us can do while others cannot.  How the Hatch Act applies depends on your type of appointment. I’ll explain that in greater detail below.

Political activity is defined as “any activity directed toward the success or failure of a political party, candidate for a partisan political office or partisan political group.”

The following rules apply to all employees, all the time.  We call these the “24/7” restrictions:

  • Don’t use official authority to interfere with or affect the result of an election.  You can’t use your EPA title or affiliation when participating in political activity, and can’t use your EPA authority to coerce another to participate in political activity, or to solicit or receive volunteer services from a subordinate for any political purpose
  • Never knowingly solicit, accept, or receive political contributions, even on your own time or through social media or email
  • Never knowingly solicit or discourage the participation in political activity of any person who: (a) has an application for any compensation, grant, contract, ruling, license, permit, or certificate pending before your office, or (b) is the subject of, or a participant in, an ongoing audit, investigation, or enforcement action being carried out by your office
  • Don’t run for partisan political office
  • Don’t intimidate, threaten, command, or coerce any Federal employee to engage in or not engage in any political activity
  • Do not permit or engage in fundraising or fundraisers on official government property.

On your own time and off EPA premises, you can: 

  • register and vote or make financial contributions to a party or candidate campaign committee
  • display a standard sized bumper sticker (one per candidate) on your personal vehicle
  • sign a nominating petition
  • take an active part in support of, or be, a candidate in a non-partisan race
  • be politically active in connection with a question that is not specifically identified with a political party, such as a constitutional amendment, referendum, municipal ordinance, or any other question or issue of a similar character.

Beyond the 24/7 rules described above (the ones that apply to all employees all the time), how the rest of the Hatch Act applies to you depends on what kind of employee you are.  Career SES employees and Public Health Service officers are “further restricted,” which means that they have a lot of constraints on what they can do, even in their personal time.  The rest of us are “lesser restricted.” Consult the document attached to this email, "Hatch Act chart 2015."

Okay, so let’s talk first about the “lesser restricted” rules, as most of us are in this category. The employees who are “lesser restricted” are GS, ALJ, SL/ST, Title 42, Administratively Determined, Schedule C or non-career SES. 

Provided that they are off duty, outside of a Federal office, not wearing official insignia, and not using Federal resources, then “lesser restricted” employees can:

  • take an active part in managing or volunteering on a political campaign;
  • initiate or circulate a nominating petition;
  • serve as an officer of or organize a political party or other political group, or serve as an officer or a member of a national, state, or local committee of a political party;
  • attend and participate fully in nominating caucuses of political parties;
  • actively participate in a political convention, rally, or other political gathering, including serving as a delegate or alternate to a political convention;
  • canvass for votes in support of or in opposition to a political candidate;
  • endorse or oppose a candidate in political advertisements, broadcasts, or campaign literature;
  • address a convention, rally, caucus, or similar gathering of a political party in support of or in opposition to a partisan candidate for public office;
  • serve as a party or candidate challenger or poll watcher;
  • participate in political fundraisers, so long as such participation does not constitute solicitation of political contributions;
  • solicit, accept, or receive uncompensated volunteer services from any individual for a political purpose (other than from a subordinate employee); and
  • possibly run as an independent candidate in a partisan election as set forth at 5 C.F.R. Part 733 (just contact OGC/Ethics or your regional ethics counsel for advice on this one). 

Even if you’re “lesser restricted,” remember that the Hatch Act applies to your telework location during those telework hours. So don’t wear campaign buttons if you’re teleworking and using video conferencing.  For your reference, I’ve attached some social media FAQs for “lesser restricted” employees as well as a poster created by the Office of Special Counsel. See the attached documents titled, "Social Media FAQs for lesser restricted employees July 2016," and "HA Poster Lesser Restricted 2016."

The employees who are “further restricted” are career SES and Public Health Service officers.  If you’re acting in an SES position but are still GS, then you are in the “lesser restricted” category.  So if you’re further restricted, go back and read the preceding section on what those “lesser restricted” people can do (go ahead, I’ll wait).  Guess what? You can’t do any of them! You are prohibited under the Hatch Act from working “in concert” with any partisan candidate, group or party.  Sure, you can vote, but not much else. Check out the Office of Special Counsel’s poster attached to this email titled, "HA Poster Further Restricted 2016."

Yes.  Presidential Appointees (e.g., the Administrator and the confirmed Assistant Administrators) can engage in some political activity in the federal workplace.  They still can’t engage in the “prohibited activities for everyone” activities listed above, but they can engage in some political activity while on duty and on government property. For them, some incidental use of government resources is permitted.  But they can’t work with subordinates or accept volunteer services from subordinates in connection with political activity, so basically, EPA’s six confirmed political appointees can talk only amongst themselves.  The White House Counsel’s office recommends that even the Presidential Appointees “avoid using official offices, phones, computers, and email for political activities to the extent possible.”

It’s hard to anticipate every question that might arise, and we know that you might want some reassurance or guidance.  We’re here to help!  Send me an email at keith.jennie@epa.gov.

If you want to learn more, check out the Office of Special Counsel's Hatch Act page or their frequently asked questions page.