This story has been updated to reflect new clarifying guidance from OSC.
The small agency that is the government’s chief enforcer of the Hatch Act issued new guidance this week that moves the ball on several political issues peculiar to the Trump administration, cautioning federal employees in their use of such slogans as “resistance” and “impeachment.”
The Office of Special Counsel on Nov. 27 emailed the two-page guidance, first reported by The New York Times, to recipients of its Hatch Act listserv because of several recent inquiries, it said. The resulting uproar in social media and from interest groups prompted the agency to tell Government Executive on Friday that it will issue a clarification. It did so on Friday afternoon.
“We understand that the 'resistance' and '#resist' originally gained prominence shortly after President Trump’s election in 2016 and generally related to efforts to oppose administration policies,” said the guidance reiterating standard Hatch Act policies. “However, ‘resistance,’ ‘#resist’ and similar terms have become inextricably linked with the electoral success (or failure) of the president,” it added.
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“Hence, to the extent the statement relates to resistance to President Donald J. Trump, usage of the terms 'resist,' '#resistance' and derivatives thereof is political activity,” OSC said. Context matters, the guidance implied. Posting on social media of a statement such as “I must #resist the temptation to eat another donut from the break room” would not violate the Hatch Act, according to OSC. “That said, we do presume that the use or display of hashtags resist and #resistTrump, in isolation, is political activity under the Hatch Act,” OSC noted.
Timing is also a factor, the document suggested. “Consider, for example, the administration’s recent decision to move the U.S. Embassy in Israel to Jerusalem,” it said. “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.”
Similarly, the issue of impeachment, which has been bandied around since Trump became the Republican presidential nominee, is cause for new concern now that Trump has been in office. “Advocating for a candidate to be impeached, and thus potentially disqualified from holding federal office, is clearly directed at the failure of that candidate’s campaign for federal office,” the guidance said. “Similarly, advocating against a candidate’s impeachment is activity directed at maintaining that candidate’s eligibility for federal office and therefore also considered political activity.”
Reactions were largely negative. The National Treasury Employees Union called the document “inconsistent with the purposes of the Hatch Act.” Tony Reardon, the union’s national president, added in a statement that employees may find the document confusing. “It could unnecessarily have a chilling effect on employees’ First Amendment free speech,” he added. “That prohibition has always been a fact-specific analysis in which the employee’s intent is relevant. This new guidance goes too far because it eliminates that critical factor.”
The State Department alumnus who blogs under the moniker “Diplopundit,” expressed concern about the section that seeks to assure employees that the risk of violation is “only relevant to employee conduct that takes place on duty, in the workplace, while wearing an agency uniform or insignia, or while invoking any official authority or influence.” The problem, the blogger wrote in asking OSC for clarification, is that Foreign Service folks are considered on duty 24/7, so what does this guidance mean in the real world?”
The transparency group American Oversight on Thursday sent a letter to OSC asking that it withdraw the document—which is not signed by Special Counsel Henry Kerner or any other official by name—warning that the guidance “opens a dangerous door for the Trump administration to crack down on dissent.”
Executive Director Austin Evers, noting the Trump rhetoric about an alleged disloyal “deep state” within government, wrote that “making it illegal to advocate for or against impeachment of Donald Trump or to resist administration policies like family separation or the Muslim ban could operate as a gag order against whistleblowers and impinge on the constitutional rights of public employees.”
The Hatch Act, he continued, does not prohibit employees “from speaking out as citizens against illegality or bad policy. Indeed, the oath to uphold the Constitution requires them to do so,” Evers said in a statement.
Nick Schwellenbach, an investigator and whistleblower specialist at the nonprofit Project on Government Oversight (and former OSC employee), wondered how OSC would apply the rules to employees, including senior officials, who make pro-Trump statements or argue against impeachment.
“It will chill protected federal employee speech because OSC's guidance is far too nuanced for a typical employee to navigate in everyday conversations and emails with coworkers,” he told Government Executive. “It's unworkable for OSC and puts it in the position of being an Orweillian speech cop in the federal government, which Congress has said in statute it does not want it to be. OSC's Hatch Act enforcement will be easy to paint as motivated by politics, even if that's not truly the case.”
The revised guidance released on Nov. 30 stressed that none of the restrictions apply when employees are off-duty and away from the workplace, and reiterated that the guidance does not limit whistleblowers “in any way from reporting or disclosing waste, fraud and abuse, or other wrongdoing,” an OSC spokesman wrote to Government Executive.
“Questions have been raised about whether OSC considers discussions of impeachment in the federal workplace to be political activity,” the statement said. “We appreciate these questions from concerned federal employees and from members of the public. OSC is committed to ensuring that federal employees are able to exercise their first amendment rights to the fullest extent permitted under the Hatch Act.”
On the subject of impeachment, the new guidance clarified that “merely discussing impeachment, without advocating for or against its use against such a candidate, is not political activity.” Employees, however, may not display a poster in the office that reads “#Impeach45” or “Don’t Impeach Trump,” the spokesman said.
In elaborating on the examples, the new guidance specifically references the Democratic National Committee and the partisan political group MoveOn Political Action for their efforts to organize “resistance” themed campaigns and stickers, which are of the nature that risk violating the Hatch Act if displayed in federal offices, the guidance said. “Similar slogans used by the Republican National Committee or other partisan political groups would raise the same concerns,” OSC stated.