If you are a federal employee and unfamiliar with the Hatch Act, it would be well worth taking a few minutes of your time to become acquainted with this law and how it could impact your federal career. The Office of Special Counsel investigates and prosecutes Hatch Act violations. It has recently issued guidance for federal employees in view of the approaching presidential election in 2016.
The federal civil service was created as a politically neutral, professional workforce with hiring based on a merit system. The result was to be a cadre of professional employees that work to serve the administration that is in power. There are restrictions on federal employees regarding politics and political activity. Of course, there are also protections for federal employees, and there is no longer a turnover of employees who are fired after an election as happened earlier in our country’s history.
Americans have become more divided along political lines. Perhaps these strong differences lead some people to conclude they are serving a greater good by helping to elect a candidate who shares their political views.
Unfortunately, some federal employees have let their political enthusiasm replace sound judgment when it comes to engaging in political activity. In these cases, the employees involved appeared more concerned about influencing voters instead of serving the public using government services. Using the opportunity to expound their political views from their position as a federal employee sometimes resulted in adverse or disciplinary actions against the perpetrator.
With the increasing importance of social media with programs and websites such as Twitter and Facebook, it is easier than ever for a federal employee (or anyone else) to reach a large number of people in order to disperse political preferences. But, for a career federal employee, the power of social media outlets also makes it easier to track a person’s political activity. Hitting the send button to distribute a political rant could derail a successful political career.
Taking note of the increasing impact of social media, the OSC is advising federal workers what they can or cannot do with social media without violating the Hatch Act. Here is a quick summary of the latest OSC advice:
- Federal employees may display campaign logos or candidate photographs as their cover or header photo situated at the top of their social media profiles on their personal Facebook or Twitter accounts.
- Federal employees may display campaign logos or candidate photographs as their profile pictures on their personal Facebook or Twitter accounts. However, because a profile picture accompanies most actions on social media, employees would not be permitted, while on duty or in the workplace, to post, “share,” “tweet,” or “retweet” any items on Facebook or Twitter, since each such action would show their support for a partisan group or candidate in a partisan race, even if the content of the action is not about those entities.
- “Further restricted employees”—similar to all federal employees—may “like” a social media post from a partisan group or candidate in a partisan race and may comment on such an entity’s social media pages when not at work. Note: No federal employee may “like” a post soliciting for partisan political contributions at any time. Most further restricted employees work in law enforcement and intelligence agencies.
Some federal workers who should know better or have been warned to quit engaging in political activity decide to openly ignore the Hatch Act restrictions.
In the last presidential election, an attorney with the Federal Election Commission (FEC) posted “dozens” of partisan political tweets that included soliciting campaign contributions to his election campaign. The employee also participated in a Huffington Post internet broadcast via webcam from an FEC facility criticizing Republicans and Obama’s opponent in the campaign, Mitt Romney.
In other cases resulting from political enthusiasm by federal employees, an employee of the Internal Revenue Service was given a 100 day suspension. In that case, the complaint filed by the Office of Special Counsel alleged that, when fielding taxpayers’ questions on an IRS customer help line, the employee repeatedly urged taxpayers to reelect President Obama in 2012 by delivering a chant based on the spelling of the employee’s last name. In the settlement agreement resolving the complaint, the IRS employee acknowledged that he had used his authority and influence as an IRS customer service representative for a political purpose and did so while at work.
And, in a separate case involving an IRS office, the Office of Special Counsel concluded it was necessary to issue a warning to all IRS employees in the Dallas Taxpayer Assistance Center that they were not allowed to wear or display any items advocating for or against a political party, partisan political group, or partisan candidate in the workplace.
Here is how federal employment has evolved since the 1800’s with regard to political activity:
The “spoils system” was created in the 19th century by Andrew Jackson. After Jackson’s election in 1828, he implemented his philosophy of “to the victors go the spoils.” In practice, this meant that he could fill federal jobs with his political supporters. He set a precedent followed by the major parties for the next fifty years and new presidents were inundated by those who wanted a federal job. One of these disappointed job seekers, who had worked in the Garfield campaign, shot President Garfield in 1881. After his assassination, Congress decided that a system of hiring federal workers who owed their political loyalty to the party in power did not create an effective system of government.
The result was the Pendleton Act of 1883 which mandated competitive examinations for federal employees rather than political loyalty or affiliation. In order to enforce the merit system, the Act also created the United States Civil Service Commission.
In 1912, the Lloyd-Lafollette act was passed to provide job protection for federal employees who were subject to politically motivated removals without recourse. More recently, competitive examinations are no longer used in selecting people to fill most government positions.
The Hatch Act was passed in 1939 and modified in 1993 by removing the prohibition on participation in “political management or political campaigns.” There have been further modifications in the Hatch Act, and the Office of Personnel Management issued a new rule in 2014 implementing the most recent changes. (See Hatch Act Modifications Reflected in New OPM Rule) Generally, the changes implemented since it was passed in 1939 have weakened the original restrictions.
There has historically been tension between the desire of politicians to use the federal workforce to secure their hold on power and the preference for a workforce that is professional, efficient and works to implement the policies of the administration in power. Unions have played a role in altering the balance of a professional cadre of federal workers with using government to reward political supporters. Unions did not have significant authority in government until President Kennedy issued an executive order in 1962 granting unions the right to represent employees. While we are a long way from the spoils system of the 19th century, the role of government employee unions has introduced a strong political element into the federal workforce, and some employees have gotten caught up and let their enthusiasm damage a successful career.
Federal employees are generally insulated from much of the political pressure that may be applied to employees working for a local government. While this is an advantage of being a federal employee, the restrictions of the Hatch Act are the trade-off for this insulation from political pressure.
Generally, if a reader has doubts about whether political activity could lead to disciplinary action, it would be wise to check with your agency’s ethics advisor. If you are convinced your actions are legitimate or authorized, and you begin taking action on behalf of your preferred candidate, keep in mind that the fall-out of violating the Hatch Act could result in serious disciplinary action or removal from the federal service.