It’s amazing to think we are just about at the home stretch in an election year. The conventions are just around the corner, and candidates are gearing up for the final push and making sure they are ready on the ground come election day. Social media has been playing a critical role in the election in this year, and as federal employees, it’s important to know what is and is not covered by the Hatch Act. (Download this PDF for a full overview of the Hatch Act and social media)
The Hatch Act has been around since 1939, and has gone through significant modifications over the years. The Office of Special Council states:
“All civilian employees in the executive branch of the federal government, except the President and the Vice President, are covered by the provisions of the Hatch Act. Employees of the U. S. Postal Service and the District of Columbia, except for the Mayor of the District of Columbia, the District of Columbia’s City Council and the District’s Recorder of Deeds, are also covered by the Act. Part-time employees are covered by the Act. Federal and District of Columbia employees subject to the Hatch Act continue to be covered while on annual leave, sick leave, leave without pay, or furlough. However, employees who work on an occasional or irregular basis, or who are special government employees, as defined in title 18 U. S.C. § 202(a), are subject to the restrictions only when they are engaged in government business.”
Before you know what restrictions apply to you for the Hatch Act, it is important to know if you are it is important to understand the difference between Further Restricted and Less Restricted. Further Restricted employees are prohibited from engaging in partisan political activities. Typically, these kinds of employees are from the intelligence and enforcement communities. It can get a little tricky though, as Further Restricted employees also include employees from the following agencies, or maybe even from just certain departments within the agency:
- Federal Election Commission;
- Election Assistance Commission;
- Federal Bureau of Investigation;
- Secret Service;
- Central Intelligence Agency;
- National Security Council;
- National Security Agency;
- Defense Intelligence Agency;
- Merit Systems Protection Board;
- Office of Special Counsel;
- Office of Criminal Investigation of the Internal Revenue Service;
- Office of Investigative Programs of the United States Customs Service;
- Office of Law Enforcement of the Bureau of Alcohol, Tobacco, and Firearms;
- National Geospatial-Intelligence Agency;
- Office of the Director of National Intelligence;
- Criminal Division of the Department of Justice;
- National Security Division of the Department of Justice; as well as
Persons employed in positions described under Sections 3132(a)(4), 5372, 5372 (a), or 5372(b) of Title 5, United States Code, including:
- Senior Executive Service [career positions described at 5 U.S.C. § 3132 (a)(4)]
- Administrative Law Judges [positions described at 5 U.S.C. § 5372]
- Contract Appeals Board Members [positions described at 5 U.S.C. § 5372 (a)]
- Administrative Appeals Judges [positions described at 5 U.S.C. § 5372(b)]
The Office of the Special Counsel also provides information about Political Restrictions and Examples of Prohibited Activities and Examples of Permitted Activities for Further Restricted employees.
Less Restricted are quite a bit easier to identify, as the US Office of Special Council states, “Most federal executive branch employees (except those listed here) and all District of Columbia employees are considered Less Restricted under the Hatch Act. These employees may take an active part in partisan political management or partisan political campaigns.” Again, they provide some examples Political Restrictions and Examples of Prohibited Activities and Examples of Permitted Activities.
If you are still uncertain about what your status is for the Hatch Act, be sure to check in with your agencies legal team. Below are a few questions below related to social media and the Hatch Act and federal employees. Be sure to follow the links, I’ve only highlighted a few of the questions in this post. You can also view the entire listing of commonly asked questions by downloading a PDF created by the Office of Special Counsel. The questions below have all been pulled and can be cited to the Office of Special Counsel, please follow this link for complete answers, and lots of great information on the Hatch Act.
If a federal employee has listed his official title on his Facebook profile, may he also fill in the "political views" field?
Answer (All Employees): Yes. Although the Hatch Act and its attendant regulations prohibit federal employees from using their official titles while engaging in “political activity,” that is, activity directed toward the success or failure of a political party, partisan candidate, or partisan political group, simply identifying political party affiliation on their social media profiles, which also contains their official title or position, without more, is not "political activity."
What should a federal employee do if someone posts a comment on the employee’s social media page, such as his Facebook page or Twitter feed, that solicits contributions to a political party, partisan political group, or partisan candidate, posts a link to the contribution webpage for such entities, or otherwise solicits political contributions?
Answer (All Employees): Although the Hatch Act prohibits federal employees from soliciting, accepting, or receiving political contributions at any time, they are not responsible for the acts of a third party, even if the third party’s actions appear on their social media webpage. Thus, if a federal employee’s “friend” posts a link to the contribution page of a political party, partisan candidate, or partisan political group, or otherwise solicits political contributions, the employee does not need to take any action. The same advice applies to any tweets directed at a federal employee. However, the federal employee should not “like, “share,” or “retweet” the solicitation, or respond in any way that would tend to encourage other readers to donate.
May a federal employee continue to “follow” the official White House Twitter account, or be a “friend” of, or “like,” the official White House Facebook page, after the President has become a candidate for reelection?
Answer (All Employees): Yes, a federal employee may continue to follow the official White House Twitter account, i.e., the account the President uses to comment on his official functions, even after the President begins his reelection campaign. The same is true for being a “friend” of, or “liking” the official White House page on Facebook.
May a federal employee use an alias to create a blog, Facebook page or Twitter account and “friend,” “like,” or “follow” a political party, partisan political group, or partisan candidate?
Answer (All Employees): Yes; however, be advised that employees remain subject to the Hatch Act even when they act under an alias. Therefore, the advice provided in response to all other questions herein, particularly Questions 1 through 6, apply regardless of whether or not the federal employee is acting under an alias.
The Office of Special Counsel addresses dozens of issues around social media and the Hatch Act, here are some more questions they cover, and the link to the full listing of questions.
- May a federal employee create a Facebook or Twitter page in his official capacity and advocate for or against a political party, partisan political group, or partisan candidate on the page?
- May a federal employee advocate for or against a political party, partisan political group, or candidate for partisan public office in posts on a blog, Facebook, Twitter, or any other social media platform?
- May federal employees who are “friends” with their subordinate employees or have “followers” who are subordinate employees advocate for or against a political party, partisan political group, or candidate for partisan public office on their Facebook pages or Twitter accounts?
- May a federal employee become a “friend” of, or “like,” the Facebook page, or “follow” the Twitter account of a political party, partisan political group, or partisan candidate?
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