OSC Claims It Will Ratchet Up Hatch Act Efforts

In an “advisory opinion” issued May 20, 2024, the newly confirmed Special Counsel sought to inform “federal employees and the public of updates to [OSC’s] enforcement approach in several areas.” Listing four separate changes, the Special Counsel’s opinion broadens the enforcement scope of the Hatch Act in meaningful ways.

First, the opinion announced that OSC will seek disciplinary actions directly from the MSPB in Hatch Act matters under their jurisdiction, and stated that OSC believes that enforcement mechanism should be brought to bear against White House commissioned officers, so long as they are not Presidentially-appointed and Senate-confirmed (PAS). The opinion noted that in the past, OSC has expressed that they felt bound against seeking independent disciplinary action from the MSPB by a 1978 opinion by the Department of Justice’s Office of Legal Counsel (OLC). The advisory opinion explained that for a variety of reasons, OSC no longer feels so bound, and will “pursue disciplinary action for Hatch Act violations as expressly provided for by statute,” including against non-PAS political appointees…serving in the White House.”

The advisory opinion also announced the Special Counsel’s intent to seek Hatch Act penalties against former employees who engage in “material misconduct while a federal employee but who have since left government service.” Unlike typical disciplinary proceedings, where federal agencies lack any jurisdiction or penalty to impose against an already-separated employee (such as termination or an unpaid suspension), OSC has additional civil penalties that they can seek, such as debarment from federal employment for a period of up to five years, and fines of up to $1,000.

In a change from prior advisories, the opinion also informed federal employees that OSC would consider display of political candidate or political party items in the workplace to be violations of the Hatch Act, no matter when those items were displayed. Previously, OSC only considered such displays to violate the Hatch Act if they were displayed in the lead-up to an election, rather than the time after an election or when no election was pending. But OSC is now withdrawing that opinion in favor of a “more straightforward and uniform standard that does not depend on federal workers knowing precisely when or whether a particular individual officially has become a candidate for office including re-election.” According to OSC, because the Hatch Act’s constraints on federal employees’ support for politicians and parties “serves to instill public faith in government,” the change is consistent with the Supreme Court’s view of the law, expressed in U.S. Civil Service Commission v. Nat’l Assoc. of Letter Carriers, 413 U.S. 548, 564-565 (1973).

OSC claimed in its advisory opinion that this blanket prohibition on tangible items intended to convey support for a political candidate or party was not inconsistent with its support for “federal employee speech rights generally,” and that it instead represented an attempt to strike the balance described in Pickering v. Board of Education, 391 U.S. 563, 568 (1968), between the free speech interests of the employee as a citizen in commenting upon matters of public concern, and the interests of the government as an employer in promoting the efficiency off the public service that it performs through its employees. 

Read the full advisory opinion here.

Conor D. Dirks

Conor D. Dirks is a Partner at the law firm Shaw Bransford & Roth, where he has practiced law since 2013. Mr. Dirks’ law practice concentrates on representing federal officials and employees in all aspects of federal personnel employment law. Mr. Dirks litigates cases in federal courts, and administrative forums such as the United States Merit Systems Protection Board, U.S. Court of Appeals for the Federal Circuit, Foreign Service Grievance Board, and U.S. Equal Employment Opportunity Commission.

Mr. Dirks represents federal employees of all grade levels confronted with proposed disciplinary action, and also advises employees subject to federal investigations, including investigations conducted by Inspectors Generals, Congress, the Office of Special Counsel, the Department of Justice’s Office of Professional Responsibility, or administrative investigations by the employee’s own agency. He has briefed questions of due process in federal court, and has years of experience with a wide range of legal issues arising in federal employment. Mr. Dirks also represents federal whistleblowers and has assisted many employees in successfully disclosing wrongdoing at their agency to the Office of Special Counsel or to an Inspector General, and in seeking corrective action for whistleblower retaliation.

In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.

In law school, Mr. Dirks clerked at Shaw Bransford & Roth. He conducted legal research on a wide array of federal employment cases. He aided in the preparation of arguments for hearing before the Merit Systems Protection Board and Equal Employment Opportunity Commission. Mr. Dirks also served as a clerk at the High Court of the Republic of the Marshall Islands, where he updated and modernized the Marshall Islands Rules of Civil Procedure, the Marshall Islands Rules of Criminal Procedure, and the Juvenile Rules to reflect changes in the United States Federal Rules of Civil Procedure and electronic discovery practices. As a clerk at the high court, he helped craft decisions in cases involving government fraud, shareholder derivative actions, and family law, among others.

Mr. Dirks has also covered the Washington Wizards for the ESPN Truehoop Network since 2012, where he has provided NBA game coverage and long-form articles as a credentialed member of the media. His work has been featured and linked on a variety of major outlets, including Yahoo! Ball Don’t Lie, SBNation and ESPN.

https://www.shawbransford.com/conor-d-dirks
Previous
Previous

SCOTUS: Untimely Federal Circuit Appeals May Not Be Doomed, After All

Next
Next

SCOTUS: Preliminary Hearings Are Not Required For Seized Personal Property Before Forfeiture