Frequently Asked Questions

Frequently Asked Questions

Listed below are answers to some of the most frequently asked questions OSC receives from state, District of Columbia, and local employees concerning political activity. The advice provided below concerns the interpretation of the federal Hatch Act only and does not take into account any other federal, state, or local laws that may be applicable. Employees who have additional questions or want additional information about the Act may contact OSC to obtain an advisory opinion.

State and Local
QUESTIONS AND ANSWERS


Answer: Yes. The Merit Systems Protection Board has held that the test of whether an employee is covered by the Hatch Act is whether, as a normal and foreseeable incident of his principal employment, the employee performs duties in connection with an activity financed in whole or in part by federal funds. Special Counsel v. Gallagher, 44 M.S.P.R. 57, 61 (1990). If an employee meets this standard, the source of the employee’s salary is irrelevant. See Special Counsel v. Williams, 56 M.S.P.R. 277, 283-84 (1993), aff’d, Williams v. M.S.P.B., 55 F.3d 917 (4th Cir. 1995).
Answer: Not necessarily. An officer or employee of a state District of Columbia, or local agency is subject to the Hatch Act if, as a normal and foreseeable incident of his principal position or job, he performs duties in connection with an activity financed in whole or in part by federal funds. Coverage is not dependent on whether the employee actually administers the funds or has policy duties with respect to them. However, an employee may have other duties in connection with federally funded programs or activities, and thus may be covered by the Hatch Act, even though he does not apply for or administer federal loans or grants or have any authority or discretion over the federal funding.
Answer: No, not necessarily. If an agency receives federal grants or loans, only those employees of the agency who, as a normal and foreseeable incident of their employment, perform duties in connection with activities financed in whole or in part by the federal grants or loans are subject to the Act.
Answer: The Hatch Act exempts from coverage individuals who are principally employed by educational or research institutions, establishments, agencies or systems that are supported in whole or in part by a state or political subdivision thereof, or District of Columbia. All employees of these entities fall within the exemption (e.g., teacher, administrator, custodian, etc.).
Answer: Maybe. The Hatch Act applies to employees of private, nonprofit organizations only if the statutes through which these organizations derive their federal funding contain a provision stating that the recipient organizations are deemed to be state D.C., or local government agencies for purposes of the Hatch Act. To date, the statutes authorizing Head Start funds and Community Service Block Grant (CSBG) funds are the only statutes that contain such a provision. Accordingly, covered employees are those individuals at private nonprofit organizations who perform duties “in connection with” programs financed in whole or in part by Head Start or CSBG funds.
Answer: No, If you are covered by the Hatch Act, taking a sabbatical or leave of absence will not allow you to be a candidate in a partisan election. State and local employees subject to the Hatch Act continue to be covered while on annual leave, sick leave, administrative leave, furlough or any other paid or unpaid leave.
Answer: No. If OSC determines that you are covered under the Hatch Act and subject to its restrictions, OSC cannot make an exception and allow you to become a candidate in a partisan election. The Hatch Act is a law enacted by Congress and OSC is the agency tasked with enforcing it.
Answer: The Hatch Act defines partisan as referring to a political party. 5 C.F.R. § 151.101(h). Thus, under the Hatch Act, an election for public office is a partisan election if any candidate is running as a representative of, for instance, the Republican or Democratic Party. An employee covered by the Act may not be a candidate for public office in a partisan election. 5 U.S.C. § 1502(a)(3).
Answer: No. An employee covered by the Hatch Act may not be a candidate for public office in a partisan election, i.e., an election in which any candidate represents, for example, the Republican or Democratic Party. A candidate who cross-files as both a Democrat and Republican is viewed as representing both parties. Therefore, an election in which candidates are permitted to cross-file is a partisan election under the Act
Answer: Yes. If the special election is partisan and you are covered by the Hatch Act you would be prohibited from being a candidate in such an election.
Answer: Yes. The Hatch Act’s prohibitions on state, D.C., and local employees are applicable regardless of jurisdiction, or local population.
Answer: No. A person is in violation of the Hatch Act when, at the time he engaged in prohibited conduct, he was covered by the Hatch Act. It has been held that candidacy begins when preliminary steps are taken to establish a candidacy, not just when a formal announcement is made. For example, canvassing voters, polling for name recognition, or meeting with campaign managers are preliminary steps taken that would be viewed as candidacy for purposes of the Hatch Act (even if a formal candidacy is not declared). If such steps are taken by someone who is covered by the Hatch Act, a violation of the Act will have occurred. A change in duties at a later time will not negate the already existing violation.
Answer: Yes. The Hatch Act does not prohibit a covered employee from being appointed to a partisan political office. However, if the employee is covered by the Hatch Act, the employee would be prohibited from seeking election to that office.
Answer: No. First, not all state District of Columbia, or local positions are covered by the Hatch Act. Accordingly, just because an individual is hired by a state District of Columbia, or local government does not automatically mean the individual becomes covered by the Hatch Act. (If an individual is concerned that he/she might be covered by the Hatch Act, he/she should contact OSC for an advisory opinion.) Second, the Hatch Act prohibits covered employees from being candidates for public office in a partisan political election. It does not prohibit individuals who hold an elective office from accepting a covered position with state or local governments. Accordingly, it is not a violation of the Hatch Act to hold a partisan political office and to be hired into a covered position. However, if an individual becomes employed in a covered position with a state or local government, the individual will be prohibited from seeking reelection to the partisan political office while holding the covered position.
Answer: No. Not if the elected office is the individual’s principal employment. The Hatch Act specifically exempts individuals who hold elective office from the prohibition against being a candidate for public office in a partisan election. 5 U.S.C. § 1502(c)(4). Please note, however, that this exemption applies only when the elective office is the position that would otherwise subject the employee to the restrictions of the Hatch Act.
Answer: The Hatch Act defines a nonpartisan election as “an election at which none of the candidates is to be nominated or elected as representing a political party any of whose candidates for Presidential elector received votes in the last preceding election at which Presidential electors were selected.” 5 C.F.R. § 151.101(g); see also 5 U.S.C. § 1503. Examples of political parties that received votes in the last Presidential election are the Democratic, Republican, Libertarian and Green Parties. The Hatch Act does not prohibit covered employees from being candidates in nonpartisan elections.
Answer: State and local laws create only a rebuttable presumption that an election is nonpartisan. See Special Counsel v. Yoho, 15 M.S.P.R. 409, 413 (1983), overruled on other grounds, Special Counsel v. Purnell, 37 M.S.P.R. 184 (1988). Evidence showing that partisan politics actually enter the campaigns of the candidates may rebut this presumption. See McEntee v. Merit Sys. Prot. Bd., 404 F.3d 1320 (Fed. Cir. 2005); In re Broering, 1 P.A.R. 778, 779 (1955). For example, if a candidate solicits or advertises the endorsement of a partisan political party or uses a political party’s resources to further his or her campaign, these actions may rebut the presumption that an election is nonpartisan, and thus, indicate that the election is a partisan one. While each case is fact specific, the Board has consistently held that it is less about the title used, and more about the actions of the candidate. The general analysis is whether the candidate acted in concert with a partisan political party. See Special Counsel v. Campbell, 58 M.S.P.R. 170 (1993), aff’d, 27 F.3d 1560 (Fed. Cir. 1994); McEntee v. Merit Sys. Prot. Bd.,, 404 F.3d 1320 (Fed. Cir. 2005).
Answer: No. While elected officials are exempt from the candidacy prohibition of the Hatch Act, they are still subject to the other two prohibitions – the prohibitions against using one’s official authority to affect the result of an election and directly or indirectly coercing a state D.C., or local employee to make a political contribution. Because it is inherently coercive for a supervisor to ask a subordinate employee to contribute to a political cause, the Hatch Act would prohibit an elected official form asking subordinate employees to help or contribute to his reelection campaign.
Answer: No. As discussed in Question No. 18 above, it is inherently coercive for a supervisor to ask a subordinate employee to contribute to a political cause. Therefore, the Hatch Act would prohibit a supervisor from asking subordinates to volunteer for any partisan political campaign, political party, etc.
Answer: No. Inviting subordinate employees to a political fundraiser would violate two provisions of the Hatch Act. First, inviting subordinate state or local employees to a political fundraiser would violate the Act’s prohibition against directly or indirectly coercing, attempting to coerce, or advising other employees to make a political contribution, even if the supervisory employee does not expressly ask the individuals to contribute money. Second, inviting subordinate employees to any political event would violate the Act’s prohibition against using one’s official influence or authority to affect the result of an election. Such conduct is inherently coercive, and violates the Act even if the supervisory employee does not threaten to penalize subordinates who do not attend or promise to reward those who do attend.
Answer: As a general matter, OSC staff may not disclose the name of the person who filed a Hatch Act complaint. OSC’s program files, including Hatch Act complaints, contain personal or sensitive information, which is generally protected from release under the Freedom of Information Act. Release of the names of individuals who have reported suspected Hatch Act violations is generally considered to be an unwarranted invasion of privacy that could interfere with the Office of Special Counsel’s law enforcement efforts by subjecting such individuals, on whom OSC relies to report potential violations, to possible harassment or reprisal for doing so. For more information about this policy please refer to 1/26/2004 Policy Statement on Disclosure of Information from OSC Program Files (OSC49a).
Answer: A Hatch Act investigation is an administrative matter. Hatch Act matters are adjudicated before the Merit Systems Protection Board, which is an administrative agency.


COVERED EMPLOYEES

  • Can I be covered by the Hatch Act even if my salary is not federally funded?

  • Answer: Yes. The Merit Systems Protection Board has held that the test of whether an employee is covered by the Hatch Act is whether, as a normal and foreseeable incident of his principal employment, the employee performs duties in connection with an activity financed in whole or in part by federal funds. Special Counsel v. Gallagher, 44 M.S.P.R. 57, 61 (1990). If an employee meets this standard, the source of the employee’s salary is irrelevant. See Special Counsel v. Williams, 56 M.S.P.R. 277, 283-84 (1993), aff’d, Williams v. M.S.P.B., 55 F.3d 917 (4th Cir. 1995).

  • I do not apply for or administer any federal grants or loans at my agency, and I have no authority or discretion over the federal funding my agency receives, does that mean I am not subject to the Hatch Act?

  • Answer: Not necessarily. An officer or employee of a state District of Columbia, or local agency is subject to the Hatch Act if, as a normal and foreseeable incident of his principal position or job, he performs duties in connection with an activity financed in whole or in part by federal funds. Coverage is not dependent on whether the employee actually administers the funds or has policy duties with respect to them. However, an employee may have other duties in connection with federally funded programs or activities, and thus may be covered by the Hatch Act, even though he does not apply for or administer federal loans or grants or have any authority or discretion over the federal funding.

  • If an agency receives federal grants or loans, are all employees of that agency covered by the Hatch Act?

  • Answer: No, not necessarily. If an agency receives federal grants or loans, only those employees of the agency who, as a normal and foreseeable incident of their employment, perform duties in connection with activities financed in whole or in part by the federal grants or loans are subject to the Act.

  • What is the education exemption and which employees fall within it?

  • Answer: The Hatch Act exempts from coverage individuals who are principally employed by educational or research institutions, establishments, agencies or systems that are supported in whole or in part by a state or political subdivision thereof, or District of Columbia. All employees of these entities fall within the exemption (e.g., teacher, administrator, custodian, etc.).

  • I work for a nonprofit organization, am I covered by the Hatch Act?

  • Answer: Maybe. The Hatch Act applies to employees of private, nonprofit organizations only if the statutes through which these organizations derive their federal funding contain a provision stating that the recipient organizations are deemed to be state D.C., or local government agencies for purposes of the Hatch Act. To date, the statutes authorizing Head Start funds and Community Service Block Grant (CSBG) funds are the only statutes that contain such a provision. Accordingly, covered employees are those individuals at private nonprofit organizations who perform duties “in connection with” programs financed in whole or in part by Head Start or CSBG funds.

  • If I am covered by the Hatch Act, will taking a sabbatical or leave of absence allow me to be a candidate in a partisan election?

  • Answer: No. If you are covered by the Hatch Act, taking a sabbatical or leave of absence will not allow you to be a candidate in a partisan election. State and local employees subject to the Hatch Act continue to be covered while on annual leave, sick leave, administrative leave, furlough or any other paid or unpaid leave.

  • I live in a very small town and OSC advised me that I am covered under Hatch Act, can OSC make an exception and let me run?

  • Answer: No. If OSC determines that you are covered under the Hatch Act and subject to its restrictions, OSC cannot make an exception and allow you to become a candidate in a partisan election. The Hatch Act is a law enacted by Congress and OSC is the agency tasked with enforcing it.

PARTISAN ELECTIONS AND CANDIDACY

  • What is a partisan election?

  • Answer: The Hatch Act defines partisan as referring to a political party. 5 C.F.R. § 151.101(h). Thus, under the Hatch Act, an election for public office is a partisan election if any candidate is running as a representative of, for instance, the Republican or Democratic Party. An employee covered by the Act may not be a candidate for public office in a partisan election. 5 U.S.C. § 1502(a)(3).

  • Can I run for public office if I file as both a Republican and a Democratic candidate?

  • Answer: No. An employee covered by the Hatch Act may not be a candidate for public office in a partisan election, i.e., an election in which any candidate represents, for example, the Republican or Democratic Party. A candidate who cross-files as both a Democrat and Republican is viewed as representing both parties. Therefore, an election in which candidates are permitted to cross-file is a partisan election under the Act.

  • My local community is holding a special election to fill a vacancy for an elected office, does the Hatch Act apply to the special election?

  • Answer: Yes. If the special election is partisan and you are covered by the Hatch Act you would be prohibited from being a candidate in such an election.

  • I am covered by the Hatch Act and running for office in a jurisdiction other than where I work, is this still a violation of the Hatch Act?

  • Answer: Yes. The Hatch Act’s prohibitions on state, D.C., and local employees are applicable regardless of jurisdiction, or local population.

  • If my candidacy is found to be in violation of the Hatch Act, can I relinquish the duties that cause me to be covered by the Hatch Act, and thus negate my violation?

  • Answer: No. A person is in violation of the Hatch Act when, at the time he engaged in prohibited conduct, he was covered by the Hatch Act. It has been held that candidacy begins when preliminary steps are taken to establish a candidacy, not just when a formal announcement is made. For example, canvassing voters, polling for name recognition, or meeting with campaign managers are preliminary steps taken that would be viewed as candidacy for purposes of the Hatch Act (even if a formal candidacy is not declared). If such steps are taken by someone who is covered by the Hatch Act, a violation of the Act will have occurred. A change in duties at a later time will not negate the already existing violation.

  • Can I be appointed to public office?

  • Answer: Yes. The Hatch Act does not prohibit a covered employee from being appointed to a partisan political office. However, if the employee is covered by the Hatch Act, the employee would be prohibited from seeking election to that office.

  • If I hold an elected position and I am then hired by the state D.C., or local government, do I have to resign my elected position?

  • Answer: No. First, not all state District of Columbia, or local positions are covered by the Hatch Act. Accordingly, just because an individual is hired by a state District of Columbia, or local government does not automatically mean the individual becomes covered by the Hatch Act. (If an individual is concerned that he/she might be covered by the Hatch Act, he/she should contact OSC for an advisory opinion.) Second, the Hatch Act prohibits covered employees from being candidates for public office in a partisan political election. It does not prohibit individuals who hold an elective office from accepting a covered position with state or local governments. Accordingly, it is not a violation of the Hatch Act to hold a partisan political office and to be hired into a covered position. However, if an individual becomes employed in a covered position with a state or local government, the individual will be prohibited from seeking reelection to the partisan political office while holding the covered position.

  • Is an elected official (e.g., Sheriff, Mayor, etc.) who is covered by the Hatch Act prohibited from running for reelection?

  • Answer: No. Not if the elected office is the individual’s principal employment. The Hatch Act specifically exempts individuals who hold elective office from the prohibition against being a candidate for public office in a partisan election. 5 U.S.C. § 1502(c)(4). Please note, however, that this exemption applies only when the elective office is the position that would otherwise subject the employee to the restrictions of the Hatch Act.

NONPARTISAN ELECTIONS AND CANDIDACY

  • What is a nonpartisan election?

  • Answer: The Hatch Act defines a nonpartisan election as “an election at which none of the candidates is to be nominated or elected as representing a political party any of whose candidates for Presidential elector received votes in the last preceding election at which Presidential electors were selected.” 5 C.F.R. § 151.101(g); see also 5 U.S.C. § 1503. Examples of political parties that received votes in the last Presidential election are the Democratic, Republican, Libertarian and Green Parties. The Hatch Act does not prohibit covered employees from being candidates in nonpartisan elections.

  • Can a nonpartisan election turn into a partisan election?

  • Answer: State and local laws create only a rebuttable presumption that an election is nonpartisan. See Special Counsel v. Yoho, 15 M.S.P.R. 409, 413 (1983), overruled on other grounds, Special Counsel v. Purnell, 37 M.S.P.R. 184 (1988). Evidence showing that partisan politics actually enter the campaigns of the candidates may rebut this presumption. See McEntee v. Merit Sys. Prot. Bd., 404 F.3d 1320 (Fed. Cir. 2005); In re Broering, 1 P.A.R. 778, 779 (1955). For example, if a candidate solicits or advertises the endorsement of a partisan political party or uses a political party’s resources to further his or her campaign, these actions may rebut the presumption that an election is nonpartisan, and thus, indicate that the election is a partisan one. While each case is fact specific, the Board has consistently held that it is less about the title used, and more about the actions of the candidate. The general analysis is whether the candidate acted in concert with a partisan political party. See Special Counsel v. Campbell, 58 M.S.P.R. 170 (1993), aff’d, 27 F.3d 1560 (Fed. Cir. 1994); McEntee v. Merit Sys. Prot. Bd.,, 404 F.3d 1320 (Fed. Cir. 2005).

USE OF OFFICIAL AUTHORITY / COERCION

  • Is it okay for an elected official who is covered by the Hatch Act to ask subordinate employees to help with his reelection campaign?

  • Answer: No. While elected officials are exempt from the candidacy prohibition of the Hatch Act, they are still subject to the other two prohibitions – the prohibitions against using one’s official authority to affect the result of an election and directly or indirectly coercing a state D.C., or local employee to make a political contribution. Because it is inherently coercive for a supervisor to ask a subordinate employee to contribute to a political cause, the Hatch Act would prohibit an elected official form asking subordinate employees to help or contribute to his reelection campaign.

  • I am a Hatch Act covered employee and a supervisor, can I ask my staff to volunteer for the governor’s campaign, or the campaign for any other elected official?

  • Answer: No. As discussed in Question No. 18 above, it is inherently coercive for a supervisor to ask a subordinate employee to contribute to a political cause. Therefore, the Hatch Act would prohibit a supervisor from asking subordinates to volunteer for any partisan political campaign, political party, etc.

  • I am a Hatch Act covered employee and a supervisor. May I invite my subordinates to a fundraiser for a partisan candidate or political party?

  • Answer: No. Inviting subordinate employees to a political fundraiser would violate two provisions of the Hatch Act. First, inviting subordinate state or local employees to a political fundraiser would violate the Act’s prohibition against directly or indirectly coercing, attempting to coerce, or advising other employees to make a political contribution, even if the supervisory employee does not expressly ask the individuals to contribute money. Second, inviting subordinate employees to any political event would violate the Act’s prohibition against using one’s official influence or authority to affect the result of an election. Such conduct is inherently coercive, and violates the Act even if the supervisory employee does not threaten to penalize subordinates who do not attend or promise to reward those who do attend.

MISCELLANEOUS

  • A Hatch Act complaint has been filed against me, can I find out who filed it?

  • Answer: As a general matter, OSC staff may not disclose the name of the person who filed a Hatch Act complaint. OSC’s program files, including Hatch Act complaints, contain personal or sensitive information, which is generally protected from release under the Freedom of Information Act. Release of the names of individuals who have reported suspected Hatch Act violations is generally considered to be an unwarranted invasion of privacy that could interfere with the Office of Special Counsel’s law enforcement efforts by subjecting such individuals, on whom OSC relies to report potential violations, to possible harassment or reprisal for doing so. For more information about this policy please refer to 1/26/2004 Policy Statement on Disclosure of Information from OSC Program Files (OSC49a).

  • Is a Hatch Act investigation an administrative or criminal matter?

  • Answer: A Hatch Act investigation is an administrative matter. Hatch Act matters are adjudicated before the Merit Systems Protection Board, which is an administrative agency.