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Special Counsel Dellinger Announces Updates to OSC’s Hatch Act Enforcement

Hatch Act
Today, Special Counsel Hampton Dellinger announced several updates to the OSC's approach to Hatch Act enforcement.

Today, Special Counsel Hampton Dellinger announced several updates to the Office of Special Counsel's (OSC) approach to Hatch Act enforcement. The Hatch Act, a federal law passed in 1939, limits certain political activity of federal employees while they are on duty, in the federal workplace, or acting in their official capacity. Political activity is activity directed toward the success or failure of a partisan candidate, political party, or partisan political group. The updates are summarized below and are detailed in an Advisory Opinion available here

First, OSC will now bring cases alleging Hatch Act violations by White House commissioned officers or other White House staffers that warrant disciplinary action to the Merit Systems Protection Board (MSPB) rather than refer such misconduct to the President.  The Advisory Opinion notes that the MSPB's return to a quorum allows OSC to utilize the agency as the adjudicator for all Hatch Act enforcement actions against individuals who are not presidentially appointed and confirmed by the Senate, instead of relying solely on the President to take action if White House commissioned officers violate the law.

Second, OSC will bring to the MSPB appropriate cases alleging Hatch Act violations by individuals who engaged in misconduct while a federal employee but who subsequently left government service before OSC investigated and filed an enforcement action.

Third, OSC is updating its prior advisories on the wearing or displaying of political candidate or political party items in the workplace.  Previously, OSC differentiated between items supporting a political candidate worn or displayed on duty before Election Day versus the same items being worn or displayed after Election Day.  This distinction is being withdrawn in favor of a year-round prohibition on political candidate displays in the government workplace, which will now be consistent with the prohibition on party and partisan group items.

Finally, OSC recognizes that the Supreme Court has long directed that when limiting the speech of government employees, the goal is to arrive at a balance between “the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."  Pickering v. Board of Education (1968). Some workplace speech with an arguable nexus to policy may be impermissible political activity, particularly if it occurs close to or is intended to influence an election.  At the same time, the use of a word or phrase associated with a candidate or party in a policy discussion does not necessarily violate the Hatch Act, particularly when the language at issue has a legitimate connection to federal government programs, proposals, or related debates.   

“For the millions of federal employees who do not work in the West Wing, violations of the Hatch Act mean that OSC can file an enforcement action before the MSPB seeking a range of discipline. By law, only Senate-confirmed officials are excepted from MSPB's jurisdiction. White House employees should be treated like every other government worker," said Special Counsel Hampton Dellinger.  My focus is balancing robust Hatch Act enforcement with careful consideration of government employee speech rights.  That's what Congress and the courts have directed and it's what OSC will deliver."

Please also see Special Counsel Dellinger's op-ed today in Politico: Time to Close the Hatch Act's Escape Hatch