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Election season? Time to revisit the Hatch Act!

On Behalf of | Sep 26, 2022 | Firm News

Federal employees live between two worlds. On the one hand, you go to work every day to participate in non-partisan activities on behalf of the American public. On the other hand, you’re a part of the government. You’re more likely than your private sector peers to feel your skin tingle as the political currents charge up ahead of an election.

However, you could face real consequences should you allow these worlds to mix or bleed into each other. As the Government Executive recently reminded us, the Hatch Act exists to keep personal politics out of public governance. And those who fail to abide by the law can face some stiff penalties.

To whom does the Hatch Act apply?

The Hatch Act applies to most federal executive branch employees. The odds are you belong to one of two different groups:

  • Less Restricted Employees. Most federal executive branch employees belong to this category. It is essentially a catch-all for anyone who does not belong to the Further Restricted Employees category.
  • Further Restricted Employees. This category applies primarily to employees who deal with national security, intelligence and enforcement, as well as judges.

The U.S. Office of Special Counsel (OSC), which enforces the Hatch Act, lists the agencies and positions that fall into this category. These include:

  • CIA
  • FBI
  • Secret Service
  • Federal Election Commission
  • MSPB
  • OSC
  • Criminal and National Security Divisions of the Department of Justice
  • Administrative Law Judges
  • Administrative Appeals Judges

Less Restricted personnel may act personally in political campaigns and management. Further Restricted personnel are prohibited from such activities.

What activities does the Hatch Act prohibit?

The Hatch Act places different restrictions on your political activities, depending whether your position is Less Restricted or Further Restricted.

Less Restricted personnel may not:

  • Use their title, position or power to influence an election
  • Collect donations or other funds for a political party or candidate
  • Run for office as part of a political party
  • Try to sway the political opinions of anyone working with their agencies
  • Engage in any political activities while on duty, within a federal building or room, wearing official insignia or using a federal vehicle, whether leased or owned

Further Restricted personnel face all the same restrictions, plus more. In addition to the restrictions set upon Less Restricted personnel, Further Restricted personnel may not:

  • Take an active part in a political campaign by distributing campaign materials, making speeches or performing similar activities
  • Actively participate in campaign management by serving as a campaign officer, organizing rallies, circulating petitions or performing similar activities

Obviously, these activities become more noticeable as the election cycle ramps into high gear. That’s all the more reason to be careful. If you violate the Hatch Act, you may find yourself in deep trouble.

The penalties you can face for violating the Hatch Act

You might think that no one ever gets in trouble for violating the Hatch Act, but this just isn’t true. The perception that the law is toothless may owe to the fact that many notable, high-level officials have flagrantly violated it.

During the Trump administration, for example, the OSC found that White House advisor Kellyanne Conway had violated the Hatch Act multiple times, and it called for the White House to remove her from her position. The White House refused.

However, your agency may not be as forgiving of you as the previous White House was of its top staff. According to the OSC, violations of the Hatch Act can lead to:

  • Suspension
  • Demotion
  • Reprimand
  • Removal from federal service
  • Monetary fines

Responding to Hatch Act accusations

The OSC often opens a Hatch Act investigation after receiving a complaint. Whether or not that complaint is valid, you could find yourself needing to defend your name, reputation and career.

In June of 2019, the OSC Special Counsel spoke to the House of Representatives’ Oversight and Reform Committee about Conway’s Hatch Act violations. While much of what he said likely won’t apply to you, he noted that the OSC “carefully calibrated” its recommendations based on her actions. He said the decision to recommend her removal owed to the frequency and flagrancy of her violations, as well as her unwillingness to come into compliance with the law.

This suggests that you may not face the stiffest penalties for lesser violations. However, if you make any mistakes, you want to be proactive about correcting them. You shouldn’t allow your political and professional worlds to bleed into each other, but neither should you lose your job for accidentally sending a political message from the wrong email or Twitter account. You can argue for a more appropriate response.


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