Note: OSC issued revised guidance about this Hatch Act memo. See OSC Clarifies its Hatch Act Guidance on ‘Resistance’ in the Workplace for details.
New Hatch Act guidance from the Office of Special Counsel warns federal employees to be careful what they say about President Trump when in the workplace.
OSC said that it has received several questions recently as to whether specific actions constitute political activity in the federal workplace and therefore would violate the Hatch Act.
New Hatch Act Guidance
The new guidance addresses three areas which would potentially constitute political activity by a federal employee: “(1) strong criticism or praise of a presidential administration’s policies and actions; (2) advocation for or against impeachment of a candidate for federal office; and (3) activity related to “the Resistance” and/or “#Resist.”
On the first point, OSC said that there are no “magic words” that would constitute strong criticism or praise to be considered political activity for Hatch Act purposes. “…the employee must be careful to avoid making statements directed toward the success or failure of, among others, a candidate for partisan political office,” said the memo.
Also, advocating for or against impeachment is considered political activity.
Lastly, OSC addresses a trend that it noted which gained traction after the last election.
Readers may recall that various “resistance” efforts shortly after the election surfaced, such as numerous “alt” Twitter accounts that carried the name of federal agencies that were not the official agency-sanctioned accounts designed to challenge the Trump administration’s policies.
One agency that gained particular attention was the Environmental Protection Agency since it was the target of numerous budget cuts by the Trump administration. FOIA lawsuits were filed seeking evidence of the existence of a “deep state” within the EPA, and the agency even was conducting its own investigation into whether employees were sending encrypted text messages after news reports surfaced saying it was taking place within the agency.
One lawsuit was filed by the Cause of Action Institute seeking information on the use of Signal, a secure messaging application for smartphones, by employees within the EPA to work against changes to the agency. An Inspector General report later issued said that Signal was not used to “purposefully circumvent the applicable Federal record retention rules,” although it did find that two employees violated EPA policy by downloading the unapproved application and there were numerous other apps present on employees’ phones that were not approved applications.
OSC said it was compelled to issue new types of guidance around the use of certain terms or hashtags, likely because of these types of reports that arose after the last election:
To the extent that the statement relates to resistance to President Donald J. Trump, usage of the terms “resistance”, “#resist”, and derivatives thereof is political activity. We understand that the “resistance” and “#resist” originally gained prominence shortly after President Trump’s election in 2016 and generally related to efforts to oppose administration policies. However, “resistance”, “#resist,” and similar terms have become inextricably linked with the electoral success (or failure) of the president. During the period when President Trump was not considered by OSC to be a candidate for reelection the terms did not raise any Hatch Act concerns. Now that President Trump is a candidate for reelection, we must presume that the use or display of “resistance,” “#resist,” “#resistTrump,” and similar statements is political activity unless the facts and circumstances indicate otherwise.
Regarding the above quote, OSC did note that this presumption is only relevant to conduct “that takes place on duty, in the workplace, while wearing an agency uniform or insignia, or while invoking any official authority or influence.”
OSC added, “Provided that they comply with the Hatch Act’s restrictions, employees are free to engage in political activity while off-duty and away from the federal workplace.”
OSC issued updated Hatch Act guidance earlier this year after it was officially announced that President Trump intends to run for a second term in 2020. As the above quote notes, this latest memorandum also stems from his candidacy for the upcoming election.
OSC has also previously provided Hatch Act guidance in conjunction with the use of social media.