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.
