Employee Warning Letter for Not Wearing Uniform

							POLITICAL ACTIVITIES
  AIR-11.0 Training
 September 16, 2008
The Hatch Act – 5 U.S.C. §§ 7321-7326; 5
           C.F.R. 733 & 734

“It is the policy of the Congress that employees
  should be encouraged to exercise fully, freely,
and without fear of penalty or reprisal, and to the
 extent not expressly prohibited by law, their right
   to participate or to refrain from participating in
        the political processes of the Nation.”
       What is Political Activity?

• 5 U.S.C. 7324; 5 C.F.R. 734.101 - An
  activity directed toward the success or
  failure of a
  – Political party,
  – Candidate for partisan political office, or
  – Partisan political group
                       Examples

• Political activity        • Not political activity
   – “Vote for _____”          –   NRA
   – “I support _____”         –   ACLU
   – “Register for _____”      –   “Pro-Choice”
                               –   “I Support the War”
                               –   “Peace, Not War”
  Two Categories of Employees
(5 U.S.C. 7322; 5 C.F.R. 734.101)

MORE RESTRICTED     LESS RESTRICTED

● CAREER SES        ALL OTHERS

● EMPLOYEES OF      ●   GS
INTELLIGENCE- AND   ●   WG
ENFORCEMENT-TYPE    ●   PAS*
AGENCIES            ●   SCHEDULE C*
                    ●   NONCAREER SES*
          Less Restricted But…

– DOD places greater restrictions on certain
  employees
   • 59 FR 54515 - Presidential Memo delegated
     authority to SECDEF to limit the political
     activities of political appointees of the
     Department of Defense, including
     Presidential appointees, Presidential
     appointees with Senate confirmation,
     noncareer SES appointees, and Schedule C
     appointees.
   • See 14 Nov 07 DEPSECDEF Memo, Civilian
     Employees’ Participation in Political Activities
                  Less Restricted Dos

• Generally, employees MAY engage in partisan political
  organization, campaign, and election-related activities
  outside of the workplace, on their own time and in their
  personal capacities
    – Be a member/serve as an officer of a political party
    – Attend/participate in/speak at a political convention,
      caucus, or rally
    – Manage a campaign, canvass for votes, distribute
      literature, initiate or circulate a petition
    – Endorse or oppose a candidate publicly
    – Vote, serve as an election judge/clerk, act as
      recorder/watcher/challenger at polling place, drive voters
      to a polling place
          Less Restricted Dos

• Employees MAY display political signs,
  stickers, buttons, etc.
  – But NOT while on duty, in a Government
    office or building, or using a Government
    vehicle
  – May place political stickers on privately-
    owned vehicles even if they park in a
    Government lot or occasionally drive
    themselves to attend meetings
         Less Restricted Dos

• Employees MAY run for non-partisan
  office
  – Non-partisan means an office to which
    political parties may not designate
    candidates
  – May not seek or advertise the
    endorsement of a political party, print
    partisan campaign literature, or use
    political party resources
          Less Restricted Dos

• Employees MAY:
  – Make political contributions
  – Manage/organize a political fundraiser
    hosted or sponsored by others
  – Attend, speak, or be a featured guest at a
    political fundraiser, provided their official
    titles are not used and they do not
    personally solicit contributions
      • Note that 5 C.F.R. 2635.808 also restricts
        employees’ fundraising activities
            Issue – Use of E-mail

• DEPSECDEF Memo states that employees MAY use
  work e-mail to discuss political subjects in a manner
  similar to “water-cooler” conversation BUT may not send
  messages to a high number of people for purpose of
  encouraging recipients to support or oppose a candidate,
  political party or partisan group.
   – A word of advice: avoid using email altogether
        • NASA employee recently suspended 180 days for
          using Government email account to send partisan
          political emails and making partisan political
          postings to his blog while on duty in the workplace.
                       DON’Ts

• Employees MAY NOT use their official authority
  or influence to interfere with or affect the result
  of an election
   – Use official title while participating in permitted
     political activity
   – Use authority to coerce anyone to participate in
     political activity
   – Solicit or receive uncompensated volunteer
     services from a subordinate
   – Solicit or discourage the participation in a political
     activity of anyone with official matters before DOD
                    DON’Ts

• Employees MAY NOT run for partisan political office
   – Except as independent candidates in certain local
     elections, 5 U.S.C. 7325; 5 C.F.R. Part 733
       • E.g., Fauquier County
   – Running for office begins when an individual
       • Begins to collect signatures for nominating
         petition,
       • Begins to fundraise,
       • Makes an announcement to the press, or
       • Puts a campaign committee together
                  DON’Ts

• Employees MAY NOT participate in
  certain political fundraising activities
   – Solicit or receive political contributions
     (including anonymously over the phone)
   – Allow the use of their official titles in
     relation to political fundraising
   – Host or sponsor a political fundraiser
More Restricted - Rules Applicable to
            Career SES
          Additional DON’Ts

• Same restrictions as other employees plus
  additional restrictions
               SES DON’Ts

• MAY NOT participate in political
  organization activities
  – Serve as officers of a political party
  – Serve as delegates to a convention
  – Speak at a political convention, caucus, or
    rally if done in concert with a candidate,
    political party, or partisan group
     • But may speak at a political event (not a
       fundraiser) on issues of national defense
       or foreign policy
               SES DON’Ts

• MAY NOT host, sponsor, manage,
  organize, sell tickets to, promote, address,
  or be a featured guest at a political
  fundraiser
   – But may be present solely as an attendee
               SES DON’Ts

• MAY NOT
  – Manage a political campaign
  – Initiate or circulate a petition
  – Canvass for votes, distribute literature, or
    endorse/oppose a candidate publicly in
    concert with a candidate, political party, or
    partisan group
  – Provide volunteer services to a political
    campaign
               SES DON’Ts

• MAY NOT act as recorders, watchers, or
  challengers at, or drive voters to, a polling
  place for a candidate, political party, or
  partisan group
       Enforcement of Hatch Act
         5 U.S.C. 1215, 1216
• When warranted after investigation of an alleged
  Hatch Act violation, the U.S. Office of Special
  Counsel (OSC) will prosecute violations before
  the Merit System Protection Board (MSPB).
   – Or before the President for Presidential
     appointees.
• When violations are not sufficiently egregious to
  warrant prosecution, OSC may issue a warning
  letter to the employee involved.
               OSC Role

• OSC is an independent investigative and
  prosecutorial agency in the Executive
  Branch.
• Enforces the Hatch Act, but also answers
  questions and provides advisory opinions
  about the Act’s restrictions on political
  activity.
  – Does not advise on DOD’s rules
• Website: http://www.osc.gov
       Penalties, 5 U.S.C. 7326

• Removal
• Unless the Merit System Protection Board
  (MSPB) finds by unanimous vote that the
  violation does not warrant removal
  – In that case, not less than 30 days'
    suspension without pay
    How to File a Hatch Act Complaint
•   Filers alleging a violation of the Hatch Act may use Form OSC-13 (Complaint
    of Possible Prohibited Political Activity, available on OSC website) to submit
    their allegation to OSC. If filers use another format to submit a Hatch Act
    violation, the following information should be included:
     –   name, mailing address, and telephone number of the complainant, and a time
         when the complainant can be safely contacted, unless the matter is submitted
         anonymously;
     –   the department or agency, location, and organizational unit complained of;
         and
     –   a concise description of the actions complained about, names and positions
         of employees who took these actions, if known to the complainant, and dates,
         preferably in chronological order, together with any documentary evidence
         the complainant may have.
•   Complaints should be sent to:
         Hatch Act Unit
         U.S. Office of Special Counsel
         1730 M Street, N.W., Suite 201
         Washington, DC 20036-4505
          Fax (202) 653-5151
 Political Activities by Members of the
             Armed Forces
• DOD Directive 1344.10 (Feb 08)
• Applies to members of the Armed Forces on active
  duty, retirees and members of reserve components
  not on active duty, officers, and enlisted.
• General policy – “Any activity that may be
  reasonably viewed as directly or indirectly
  associating [DOD] . . . with partisan political activity
  or is otherwise contrary to the spirit and intent of
  this Directive shall be avoided.”
   – Very limited “private citizen” standard
    Political Activities by Members of the
              Armed Forces, cont.
A member on active duty MAY engage in the following types of political activity:

•   May register, vote, and express a personal opinion on political candidates
    and issues, but not as a representative of the armed forces.
•   May promote and encourage other military personnel to exercise their rights,
    provided such promotion does not constitute an attempt to influence or
    interfere with the outcome of an election.
•   May join a political club and attend its meetings when not in uniform (but see
    below).
•   May serve as a nonpartisan election official out of uniform with the approval
    of the Secretary of the Navy.
•   May sign a petition for specific legislative action, provided the signing thereof
    does not obligate the member to engage in partisan political activity and is
    taken as a private citizen.
•   May write a nonpartisan letter to the editor of a newspaper expressing the
    member's personal views concerning public issues (in private capacity).
•   May write a personal letter, not for publication, expressing preference for a
    specific political candidate or cause.
•   May make monetary contributions to a political party or committee (subject to
    some limitations below).
•   May display a political sticker on his / her private automobile.
  Political Activities by Members of the
            Armed Forces, cont.
A member on active duty may NOT engage in the following types of political
activity:
• May not use official authority or influence for the purpose of interfering with
    an election, affecting the outcome thereof, soliciting votes for a particular
    candidate or issue, or requiring or soliciting political contributions from others.
• May not campaign as nonpartisan (as well as partisan) candidate or
    nominee.
• May not participate in a partisan campaign or make public speeches in the
    cause thereof.
• May not make, solicit, or receive a campaign contribution for another
    member of the armed forces or for a civilian officer or employee of the United
    States promoting a political cause.
• May not allow or cause to be published political articles signed or authored
    by the member for partisan purposes.
• May not serve in any official capacity or be listed as a sponsor of a partisan
    political club.
• May not peak before a partisan political gathering of any kind to promote a
    partisan political party or candidate.
• May not participate in any radio, television, or other program or group
    discussion as an advocate of a partisan political party or candidate.
• May not conduct a partisan political opinion survey or distribute partisan
    political literature.
• May not perform clerical or other duties for a partisan political committee
    during a campaign or an election day.
    Political Activities by Members of the
              Armed Forces, cont.
•   May not solicit or otherwise engage in fund-raising activities in Federal
    offices or facilities for a partisan political cause or candidate.
•   May not march or ride in a partisan political parade.
•   May not display a large political sign on top of his / her private automobile,
    as distinguished from a political sticker.
•   May not display partisan political signage on government owned or
    contracted housing (unless other housing standards do not forbid, “Get out
    and Vote” is allowed, “Vote for Candidate X” is not).
•   May not participate in any organized effort to provide voters with
    transportation to the polls.
•   May not sell tickets for or otherwise actively promote political dinners.
•   May not be a partisan candidate for civil office during initial active-duty tours
    or tours extended in exchange for schools.
•   May not for a Regular officer on active duty, or retired Regular officer or
    Reserve officer on active duty for over 180 days, hold or exercise the
    functions of any civil office in any Federal, state, or local civil office-unless
    assigned in a military status or otherwise authorized by law [10 U.S.C.A. §
    973(b)].
•   May not hold U.S. Government elective office, Executive schedule position,
    or position requiring Presidential appointment with the advice and consent of
    Congress.
•   May not participate (even anonymously) in any survey or similar poll that
    includes any reference to military status.
               Use of DoD Resources

•   Guidance is found in SECDEF Message 281449Z JAN 08, DoD
    Public Affairs Policy Guidance Concerning Political Campaigns
    and Elections.
•   All requests from political campaign organizations to use DOD
    facilities must be handled by a public affairs officer.
•   Use of DOD facilities for campaign events is prohibited.
     – Town hall meetings, speeches, press conferences.
•   Elected officials may visit installations to receive briefings, tours,
    official DOD information.
            Use of DOD Resources, cont.


• Command newspapers – no campaign news; partisan
  discussions, cartoons, editorials, or commentaries; or
  surveys/straw polls.
• Off-installation events – no support, except joint color guard at
  national political conventions.
• DOD may not prohibit use of facility as official polling place if so
  designated as of 31 Dec 00 or if used as such since 1 Jan 96
               Other Restrictions

• No solicitation of fellow Federal employees for campaign
  contributions, 18 U.S.C. 602.
• No contributing to any other Federal employee who is the
  contributor’s employer or employing authority, 18 U.S.C.
  603.
• No threats or intimidation to secure contributions, 18
  U.S.C. 601, 606.
• No solicitation or receipt of contributions in any room
  occupied in discharge of official duties, 18 U.S.C. 607.
• No paying/receiving of pay to vote or withhold vote, 18
  U.S.C. 597.
• No promising of benefits as reward for political activity, 18
  U.S.C. 600.
• No intimidation of voters, 18 U.S.C. 594.
• No coercing political activities of Federal employees, 18
  U.S.C. 610.
        Other Restrictions, cont.

• No interference with rights under Uniformed and
  Overseas Citizens Absentee Voting Act, 18
  U.S.C. 608.
• No assembling troops at polls or election
  interference by Armed Forces, 18 U.S.C. 592,
  593.
• No polling of Armed Forces, 18 U.S.C. 596.
• No use of military authority to influence votes of
  other military members 18 U.S.C. 609.
    DEPSECDEF Memo, Contacts with
    Presidential Campaigns, 22 Jul 08

• Forwards memo from Counsel to the President, 22
  Apr 08.
• Requires prior approval by DEPSECDEF or head
  of DOD Transition (when appointed) before DOD
  employees may make contact in their official
  capacities with the campaign committee of a
  Presidential candidate.
• Appears to apply even to otherwise legally
  permissible/required contacts (e.g. FOIA requests).
Thank you!
BACK-UP SLIDES
Rules Applicable to PAS and
Non-Career SES
Hatch Act, 5 U.S.C. 7324(b); 5 C.F.R. PART 734,
SUBPART E

• Certain employees whose duties and responsibilities
  continue outside normal business hours/while away from
  the normal duty post and are
    – Paid from an appropriation for the Executive Office of
      the President, or
    – Appointed by the President and Senate-confirmed (PAS)
• May engage in political activity while on duty, in
  Government workplace, wearing uniform/official insignia,
  and in a Government vehicle
    – IF costs associated with activity are not paid for by U.S.
      Government
• But DOD policy is to restrict the activities of these
  employees
DOD Policy

• MAY NOT participate in any activity that
  could be interpreted as associating DOD
  with a partisan political cause or issue.
• Restrictions are similar to those for
  Career SES, Members of Contract
  Appeals Boards, and NSA, DIA, NGA
  Employees
  – But more restrictive because in some
    cases, may not matter if activity done “in
    concert with a candidate, political party,
    or partisan group”
Bumper Stickers, etc.

• Unclear whether these employees may
  express political opinions publicly
• Policy simply states that they may express
  political opinions “privately”