The Office of Special Counsel issued post-Election Day guidance on Hatch Act compliance.
Federal employees may wear campaign-related apparel or display photographs of the candidates while on duty now that Election Day is over, but other Hatch Act restrictions still apply, said the independent agency that oversees civil service law.
The Office of Special Counsel on Wednesday issued post-election guidance for federal employees (as it does after every presidential election) to help them comply with the Hatch Act, which limits political activity while on the job. This guidance applies even as the outcome remains uncertain.
Now that Election Day is over, OSC said federal employees could wear hats, t-shirts or other forms of apparel as well as display photos of the candidates while they are working, wearing their official uniforms or insignias and/or using government vehicles. They may also express views about the presidential candidates and election results.
“For purposes of the Hatch Act, an individual is no longer considered a candidate when the outcome of the election is determined by vote of the Electoral College on the sixth day of January after the election,” said the guidance. “But while presidential candidates may retain their status as candidates well past Election Day, OSC has consistently advised that, with rare exception, post-Election Day activities showing support for or opposition to a presidential candidate will not affect the result of the election for that office.”
OSC said such rare exceptions include “influencing or attempting to influence the results of the popular election, such as through a recount effort, and swaying or attempting to sway the allocation of electoral votes.”
Under the Hatch Act, federal employees are banned from engaging in activity that would directly impact the “the success or failure of political parties or partisan political groups.” The office stated in May that the Hatch Act applies even when federal employees are teleworking, which many are now doing due to the ongoing novel coronavirus pandemic. However, employee classifications have a bearing on how the law applies.
“Less restricted” employees—the majority of federal workers—can take part in “partisan political management and campaigning” after Election Day, but still may not so do while they are on duty.
“Further restricted employees,” on the other hand, may not do so even if they are off duty. This group includes those who work for the Federal Election Commission, Election Assistance Commission, FBI, Secret Service, intelligence community, Office of Special Counsel, Merit Systems Protection Board and specific divisions of the Internal Revenue Service, U.S. Customs Service, the Bureau of Alcohol, Tobacco and Firearms, and the Justice Department. Senior executive service members, administrative law judges, contract appeals board members and administrative appeals judges also fall under this category.
“Even though federal employees are now allowed to do things that were prohibited under the Hatch Act before Election Day, it's still important for the workforce to continue serving the American public without regard to politics,” Nick Schwellenbach, senior investigator at the watchdog group Project on Government Oversight and former OSC official, told Government Executive. “Appearances can matter too and, given heated partisan feelings on both sides, good judgment should be exercised when engaging with colleagues and the public, especially at work.”
In other related news, Rep. Bill Pascrell Jr., D-N.J., wrote to Special Counsel Henry Kerner on Tuesday asking OSC to review if any executive branch officials violated the Hatch Act when the Trump campaign used space in the White House as a “war room” on Election Day. The president and vice president are not subject to the Hatch Act and the campaign said it paid for all of the related expenses and White House counsel approved the plan. Nonetheless, the congressman would still like the office to do a review.