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By Debra Roth

Understanding new Hatch Act rules

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Six months ahead of the first primary elections of the 2014 election cycle, government employees across the country should take notice of how, for the first time since 1993, Congress has expanded some public employees’ ability to participate in the democratic process, under the Hatch Act Modernization Act of 2012.

An Act to Prevent Pernicious Political Activities, the official name of the Hatch Act, as enacted in 1939, has long prohibited federal employees (with very limited exception) and many state and local government employees from engaging in partisan political activity, threatening career-ending penalties for violations of any degree.

Before the new law went into effect in February, public employees whose salaries were paid in any part with federal funding were not allowed to run for partisan political office.

The least severe penalty that could have been levied against a public employee found to have committed even a minor Hatch Act infraction, e.g., forwarding a political email using their government email account, was a 30-day unpaid suspension.

The new law was signed by the president in December 2012, the same year the Office of Special Counsel (OSC), the federal agency charged with implementing the Hatch Act, received 503 new complaints of alleged Hatch Act violations, up from 445 in 2008, and from 108 in 1996 (the year of the first presidential election following the 1993 update to the Hatch Act), according to annual OSC reports.

It is unclear how the revised law will affect the number of new complaints filed with OSC.

However, it will assuredly reduce the number of Hatch Act violations that actually occur, reported to OSC or not.

The new law loosened restrictions on many state and local government employees. These employees, so long as not prohibited by state or local law, and whose salaries are not paid completely with federal funds, may now run for partisan political office.

And, employees and lower-level elected officials (such as Advisory Neighborhood Commissioners and members of the District’s State Board of Education) of the District of Columbia, who were formerly treated the same as federal employees under the Hatch Act, will now be treated the same as state and local government employees.

For federal employees, although it does not loosen restrictions on their partisan political activities, the newly revised law does allow OSC to acknowledge that not all unlawful political activities are equal.

Under the updated statute, OSC may now select from the full spectrum of traditional penalties to enforce the Hatch Act. So, instead of potentially ruining her career by facing a suspension of 30 days or more, the federal employee who forgets to remove a campaign button from her jacket before entering the office could merely be subject to a letter of reprimand, other minor discipline, or a civil fine up to $1,000.

All actions brought by OSC against public employees will still be heard before the Merit Systems Protection Board (MSPB). But, unlike the range of penalties available against federal employees, the only penalty available for the MSPB to impose when presented with a Hatch Act violation by a state or local government employee is to force the employing agency to either remove the employee or forfeit a portion of its federal assistance equal to two years’ salary of the employee.

Public employees seeking advice about their political activity under the Hatch Act may contact OSC for a written or oral advisory opinion.

Similarly, employers may contact OSC to request an opinion about the political activity of their employees.

Although it remains to be seen how the new law will affect the overall number of new complaints OSC will receive for alleged Hatch Act violations, there may be a boom in the number of advisory opinions issued by OSC, similar to the boom that followed the 1993 update.

So, if you have any questions about how the updated federal ethics law applies to either yourself or to someone you know, contact OSC for an advisory opinion; if experience has granted it wisdom, the agency should be expecting your (and thousands of others’) questions.

Specific contact information for obtaining an advisory opinion may be found on the OSC website, www.osc.gov.

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