By Anjali Patel, Esq., cyberFEDS® Legal Editor Washington Bureau
IN FOCUS: The Office of Special Counsel is receiving more questions about current events — abortion, gun rights, and the Jan. 6 hearings — so employees must understand that discussions and displays about these issues can easily turn into Hatch Act violations if they are not careful, Eric Johnson, an attorney in the Office of Special Counsel’s Hatch Act Unit, told cyberFEDS®.
The Hatch Act prohibits employees from engaging in political activity while on duty, in the federal workplace, while wearing official insignia or paraphernalia, or using a government vehicle.
Unlike the everyday usage of the term political activity, which can include a broad range of things, the Hatch Act’s definition of political activity “is much narrower,” Johnson said, and includes only activities that are directed toward the success or failure of a political party, partisan political group, or a candidate for partisan political office. 5 CFR 734.101.
While such conduct could violate agency-specific rules, the “Hatch Act would generally not prohibit” comments or displays on abortion, gun rights, and the Jan. 6 committee events or hearings because, by themselves, they “are not inherently related to” a partisan political candidate, party, or group, Johnson explained.
However, these nonpartisan issues can easily become Hatch Act prohibited political activity, he warned, if the employee is using the discussion to advocate for or against a political party or candidate. According to a recent OSC FAQ, the OSC considers these factors when investigating allegations that on duty discussions purportedly about current events or policy issues might actually be political activity in violation of the Hatch Act:
· The content of the discussion.
· The timing of the discussion.
· The size and composition of the audience.
· The relationship of the participants involved.
· The context in which the discussion occurred.
· The medium used, such as email or in person contact.
· Whether a candidate or party is mentioned even if there is no express advocacy for or against the candidate or party.
Along with issue-based discussions, Johnson provided the following examples of when displays or discussions involving the Jan. 6 committee, abortion and guns, and “Let’s go Brandon” could turn into partisan political activity.
While on duty, the Hatch Act does not prohibit employees from saying the Jan. 6 hearings are or are not a good use of taxpayer money because this comment is not connected to the prospects of a partisan political candidate, party, or group, Johnson said.
However, this discussion can easily be “steered” toward someone’s candidacy and therefore political activity if the employee says, “Have you seen Congressperson X’s performance on the Jan, 6 committee? That’s why we should (or should not) vote for X in November.”
Employees must avoid connecting the work of Jan. 6 committee members to their reelection campaigns while on duty or at a federal workplace, he advised.
Abortion and guns
The Hatch Act does not prohibit employees from having nonpartisan discussions about abortion, reproductive rights, recent Supreme Court decisions, or even Supreme Court justices because they are not elected, Johnson said. But those discussions can’t “tie into voting for X or Y in November,” which would be prohibited political activity while at work or on duty.
Similarly, wearing issue-based clothing or having similar displays at work would not violate the Hatch Act unless, for example, the name of a partisan political candidate, party, or group is included, Johnson said. Wearing something that just says pro-life or pro-choice would not be considered political activity under the Hatch Act “unless there is some tie to the political party, candidate, or group,” he explained.
The same analysis applies to discussions or displays about gun rights or gun safety, he added, which generally would not violate the Hatch Act unless tied to a partisan candidate, a political party, or one of political action groups supporting these parties or candidates.
‘Let’s go Brandon’
Those who disagree with Biden administration policies have popularized the meme “Let’s go Brandon.” Yet, using or displaying this phrase “in and of itself” is not a Hatch Act violation because, “for Hatch Act purposes, President Biden is not a candidate for reelection yet,” Johnson said. However, he has seen this phrase become “problematic” when on T-shirts that also advertise a partisan political party or group. If so, employees cannot wear the T-shirt while on duty or at work, he added.
Before engaging in any conduct that could violate the Hatch Act, Johnson urged employees to consult with the agency ethics official or reach out to the OSC.