Hatch Act Modifications Reflected in New OPM Rule

The Office of Personnel Management (OPM) has issued a final rule in the Federal Register pertaining to the Hatch Act which governs political activity of federal employees as well as a number of state and local government employees. The new rules implement the Hatch Act Modernization Act of 2012.

The new rules reflect policies that took effect in early 2013 under the new Hatch Act law. It allows more discretion in disciplining employees who are in violation of the Hatch Act. Previously, the penalty for a Hatch Act violation was removal of the errant federal employee from employment unless the Merit Systems Protection Board (MSPB) imposed a penalty of not less than a 30-day suspension without pay with a unanimous vote. Each election season, there are federal employees who are subjected to disciplinary action, including removal, for engaging in political activity that can destroy a career.

Federal employees would be well advised, in the election season that is occurring again this year, to be particularly careful. Publicity about allegations of unauthorized political activity by employees in the Internal Revenue Service (IRS) has earned notoriety for some IRS employees and descriptions of some IRS offices makes it sound as though some organizations or locations within the agency were a hotbed of political activity. These actions and the resulting publicity may put the spotlight on federal employees in general who may choose to engage in partisan political activity.

Those who wish to do so may want to become more familiar with the restrictions than most to avoid watching your federal career unexpectedly implode. The new OPM rule on the Hatch Act adds a variety of lesser penalties to the existing penalty of removal.

It also abolishes the requirement that the Merit Systems Protection Board must vote unanimously to impose a lesser penalty than removal. A federal employee can still be debarred from federal employment for up to five years in addition to being fired. At the other end of the disciplinary spectrum, an employee could get with as little as a reprimand, shorter suspensions, a reduction in grade and pay and civil penalty up to $1000. The new rules also allow a federal employee to run for office in a partisan election when OPM determines that, in view of special or unusual circumstances,  it would be in the employees’ domestic interest to permit such participation. Generally, this includes:

  • The District of Columbia,
  • A municipality or political subdivision in Maryland or Virginia and in the immediate vicinity of the District of Columbia, or
  • A municipality in which the majority of voters are employed by the Government of the United States.

Federal employees who run in these elections must run as an independent candidate in local elections of their locality. This same relaxation of the Hatch Act may also apply in localities where most of the voters in an election are federal employees. Most federal employees can participate in political activities but some agencies are more restrictive because of the mission of the agency.

Generally, federal employees may participate in most partisan political activities, except for using their official authority or influence to interfere with, or affect the result of an election; running for public office in a partisan campaign; soliciting, accepting, or receiving political contributions; and, participating in political activities while on duty, on Federal premises, in uniform, or using a Government owned or leased vehicle.

Employees in a few designated agencies are considered to be “further restricted” employees and they may not participate actively in partisan political activities. The case which became public in recent days involved an attorney with the Federal Election Commission (FEC) who participated in partisan political activities. Employees of the FEC are considered “further restricted” employees. Under the less stringent rules as a result of the modified Hatch Act, the attorney agreed to resign and was also barred from employment within the executive branch for two years. In general, the new rule based on the Hatch Act modification is more lenient than in the past.

As noted above, federal employees would be well advised to take the time to become familiar with the restrictions, especially those in agencies which have more restrictions, before yielding to the fervor in favor of your preferred candidate and harming your future promotion prospects or even losing your federal job.

Hatch Act Modernization Act of 2012

© 2016 Ralph R. Smith. All rights reserved. This article may not be reproduced without express written consent from Ralph R. Smith.

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About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources.

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