The Office of Special Counsel (OSC) announced recently that it was rescinding an advisory opinion issued last year regarding the Hatch Act.
The opinions that are being rescinded were issued on May 20, 2024, along with a related advisory from October 15, 2024, under the Biden administration.
Among other things, the May 2024 advisory mandated referring all Hatch Act violations to the Merit Systems Protection Board (MSPB) for enforcement. Additionally, it prohibited political candidate and party displays in the workplace year-round, clarifying that this does not infringe on federal employees’ free speech rights.
By rescinding those opinions, OSC is replacing its Hatch Act guidance with older guidance that was most recently published on November 4, 2020.
OSC explained the ramifications of this change as follows:
First, the May 20 Advisory stated that OSC would pursue disciplinary action for Hatch Act violations by White House commissioned officers before the U.S. Merit Systems Protection Board (MSPB). OSC had previously sought disciplinary action against such employees by submitting a report to the President because of concerns that the MSPB might lack jurisdiction to discipline commissioned officers. Those jurisdictional concerns have not been alleviated. Therefore, OSC will return to its traditional practice of referring Hatch Act violations by White House commissioned officers to the President for appropriate action.
Second, the May 20 Advisory stated that in appropriate cases OSC would seek
disciplinary action at the MSPB against a former employee who left federal service before OSC filed a complaint alleging that the former employee violated the Hatch Act. OSC is currently litigating such a case before the MSPB. Until the legal question concerning jurisdiction is resolved to OSC’s satisfaction, OSC will refrain from filing any new complaints against former employees.Third, the May 20 Advisory created a “year-round workplace political item prohibition” for items related to the campaigns of “current or contemporaneous political figures” (CCPFs). Having seen the policy applied in practice, OSC concludes that the CCPF rule creates too great a burden on First Amendment interests and must therefore be discarded. OSC is therefore returning to its previous advice that the Hatch Act does not prohibit displaying campaign items in the workplace after election day, which was most recently published on November 4, 2020. A copy of that November 4, 2020 advisory opinion is attached.
The third point is the one with the potential to impact the most federal employees. The November 4, 2020, guidance addresses common questions about federal employees wearing or displaying campaign items in the workplace after Election Day and participating in certain post-Election Day activities.
These are some of the key points of that advisory:
- Post-Election Day Activities: With a few exceptions, after Election Day the Hatch Act does not prohibit employees from wearing campaign items, like t-shirts or hats, and displaying candidate photographs while they are on duty, in the federal workplace, wearing an official uniform or insignia, or using a government vehicle.
- Hatch Act Prohibition: The Hatch Act primarily prohibits engaging in political activity while on duty, in a government building, wearing an official uniform, or using a government vehicle. They also are prohibited from using official authority, influence, or resources to interfere with or affect the result of an election.
- Post-Election Political Activity: Expressing views about election results or candidates is not considered political activity under the Hatch Act. However, the Hatch Act continues to prohibit employees from using official resources to affect the outcome of the presidential election after Election Day.
- Political Party Support: The Hatch Act prohibits employees from showing support for or opposition to political parties or partisan groups while on duty, even after the election.
For more information about the advisory opinion, OSC’s Hatch Act Unit can be contacted at 202-804-7002 or [email protected].
