In the wake of protests from unions and civil-liberties groups, the U.S. Office of Special Counsel took the unusual step of backing off its original guidance for Federal employees that “strong criticism or praise” of a presidential administration—including discussing impeachment or “resistance”—constituted a violation of the Hatch Act prohibiting on-duty Federal workers from engaging in political activity.
The independent ethics agency’s revision said its earlier guidance “was not intended to prevent all discussions of impeachment,” such as when Federal workers are talking about such a scenario “without advocating for or against its use.”
NTEU, AFGE Protested
The recalibration was first reported in the New York Times and came after OSC was blasted by the National Treasury Employees Union, the American Federation of Government Employees and civil-liberties and government-accountability groups.
OSC said that Federal employees were prohibited from displaying any signs or bumper stickers at their workplace or on an official vehicle that expressed an opinion about a potential presidential impeachment.
The OSC also clarified its earlier directive on using the word “resist” or “resistance,” saying they were both permitted as long as they were used in relation to an issue, not directed at President Trump specifically.
“We appreciate the clarification that OSC says it will consider the specific facts of an employee’s intent and the full context of the speech in question,” Tony Reardon, president of the NTEU, said in a statement. “Circumstances matter in evaluating whether speech is considered a political activity. However, we remain concerned that broad, general guidance can lead to confusion among employees, and we intend to closely monitor the implementation of this guidance to make sure individual employees are not adversely impacted.”
Look Who’s Talking
“It is laughable that the Trump administration is so interested in the potential Hatch Act violations by Federal employees, while many of his top-level appointed staff continually violate it with impunity," AFGE President J. David Cox Sr. said in a statement. “If Hatch Act violations were at the forefront of concern of this administration, we would see compliance among his most-vocal White House leadership.”
A spokesman for the AFGE said that even though Mr. Cox’s statement was issued before OSC’s effort at clarification, the union stood by it.
“President Trump is yet again overstepping his authority as President,” wrote Mr. Cox. “The 2.1-million Federal workers who serve our country are entitled to First Amendment rights and should feel comfortable discussing government policy and legislative action in the workplace. Any attempt to silence the voice of our hard-working government employees is nothing less than an attack on these employees’ first amendment rights and our constitutional checks and balances. It's censorship, and its wholly incompatible with our shared American values.
The original Nov. 27 OSC guidance came in the form of a U.S. Government email with a question-and-answer format. The agency wrote that the impeachment-resist guidance was generated after it received several questions as to whether talk of impeachment and resistance constituted prohibited political speech under the Hatch Act.
Meant to Exclude Politics
The Hatch Act was passed in 1939 and restricts certain political activities by Federal employees, as well as some state, District of Columbia and even local government workers who are employed by federally funded but locally administered programs. “The law’s purposes are to ensure that Federal programs are administered in a nonpartisan fashion, to protect Federal employees from political coercion in the workplace, and to ensure that Federal employees are advanced based on merit and not based on political affiliation," according to the OSC’s website.
Hatch Act violations can bring fines and penalties including reprimands, possible suspension and even permanent bans from Federal employment.
OSC’s original memo offered a hypothetical that used the Trump Administration’s recent decision to move the U.S. embassy in Israel to Jerusalem.
“An employee who strongly criticizes or praises that decision during a workplace discussion with a colleague in the days immediately following the decision is less likely to be engaging in political activity than one making those same statements in the run-up to the next presidential election—when the decision will likely have been out of the news for several years—to a colleague that the employee knows has strong feelings about the subject.”
What to Avoid
The OSC guidance continued, “There are no ‘magic words’ of express advocacy necessary in order for statements to be considered political activity under the Hatch Act. Therefore, when a Federal employee is prohibited by the Hatch Act from engaging in political activity—e.g., when on duty, in the Federal workplace, or invoking official authority—the employee must be careful to avoid making statements directed toward the success or failure of, among others, a candidate for partisan political office.”
Austin Evers, executive director of American Oversight, a non-partisan, government-accountability non-profit, told The Times that OSC’s effort at a recalibration was a non-starter. “Reasonable employees would undoubtedly find this distinction confusing, and such incoherence could have no effect except to put a chill on workers’ speech,” he said.
Last month, OSC found that a half-dozen members of the Trump Administration had violated the Hatch Act by incorporating the President's “Make American Great Again” slogan in social-media posts.
Iced Over Hillary Boosts
In August the agency announced that an Immigration and Customs Enforcement employee agreed to resign and not return to Federal service for five years after committing multiple Hatch Act violations in 2016 on behalf of former Secretary of State Hillary Clinton’s campaign while on duty.
The ICE employee admitted to posting more than 100 social-media messages in support of Ms. Clinton’s campaign, as well as urging co-workers to vote for her and inviting them to go to one of her campaign rallies.
In its press release, the OSC said the settlement was appropriate punishment because the ICE employee “had significant Hatch Act knowledge and received guidance from ICE via e-mail and annual ethics training, but failed to change her behavior, even after OSC interviewed her.”
“When a Federal employee emphatically and repeatedly engages in political activity while on duty or in the workplace, OSC takes that very seriously,” Special Counsel Henry J. Kerner said in a statement. “This employee thumbed her nose at the law and engaged in vocal partisan politics both with her colleagues and on social media. Considering her knowledge of the Hatch Act and continuing disregard for the law, this employee’s resignation and debarment from Federal service are proportionate disciplinary actions.”
In March the OSC found that on two occasions Kellyanne Conway, a key Trump White House aide, improperly advocated for Judge Roy Moore, the Republican candidate in last December's special election for then-U.S. Attorney General Jeff Sessions’s Alabama Senate seat.
In that case, the OSC referred it to Mr. Trump for “consideration of appropriate disciplinary action.”
Prior to Ms. Conway’s Hatch Act troubles, White House social-media director Dan Scavino and U.S. ambassador to the UN Nikki Haley were issued reprimands from OSC for using their official social-media accounts to make improver political statements.
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