USDA: Hatch Act reminders

As the national election season moves into high gear, it is important that all employees remember the applicable statutory restrictions on political activity. We are therefore sending out this notice to all employees about the relevant Federal laws, regulations, and resources available to you for obtaining answers to questions about your personal political activities. All employees are encouraged to direct any questions about the Hatch Act to the USDA Office of Ethics at its “Hatch Act Hotline” (202) 720-2251 or via e-mail at daeo.ethics@usda.gov. Additionally, employees can readily locate the Office of Ethics advisors assigned to service their Mission Areas at: www.ethics.usda.gov. Further information about the Hatch Act can be found on the USDA Ethics App (you can search “USDA Ethics” and download the App on any smartphone). Also, you can view several short videos about the Hatch Act on USDA’s official YouTube page.

 

The Rules for “Less Restricted” Employees:

 

Although all Executive Branch employees are covered by the Hatch Act, not all employees are covered by the same restrictions. The majority of USDA employees are considered under the Hatch Act to be “Less Restricted” and may engage in political activity while off-duty, outside of Federal buildings, out of uniform, and without using their USDA position title or Federal resources. The “Less Restricted” category includes all GS-level, SL and ST career employees, and all political appointees not confirmed by the Senate (non-career SES and Schedule C appointees). Those employees who wish to volunteer for political campaigns should seek prior guidance on the relevant rules by contacting the Office of Ethics at (202) 720-2251 or via e-mail at: daeo.ethics@usda.gov.

 

Senate-confirmed Presidential appointees are also “Less Restricted,” and because the set of rules governing these officials are more complex, those officials should seek further guidance from the Office of Ethics prior to engaging in political activities.

 

The Rules for “Further Restricted” Employees (Career-SES and ALJs):

 

The rules apply more stringently to certain senior employees, such as those employees in career Senior Executive Service positions and Administrative Law Judges. Because of their leadership positions as the most senior career officials within the Executive Branch, SES and ALJs are considered under the Hatch Act to be “Further Restricted” and may not engage in certain political activities, even on their own time. Career SES and ALJs interested in learning more are encouraged to contact the Office of Ethics.

 

Office of Special Counsel Guidance on the Presidential Election Season and the Hatch Act:

 

The U.S. Office of Special Counsel has issued guidance regarding President Trump as a candidate for reelection. Because of President Trump’s status as a candidate, OSC advised employees that, while on duty or in the federal workplace, they may not engage in activity directed toward the success or failure of President Trump’s reelection campaign.

 

OSC’s guidance means that, while on official duty or in a federal workplace, employees are prohibited from wearing, displaying, or distributing items from President Trump’s 2016 or 2020 campaigns, including the use of slogans like “Make America Great Again,” or “#MAGA.” This prohibition also applies equally to items directed at the failure of President Trump’s reelection campaign, such as those containing the slogan “#ResistTrump.” Based on how “#resist,” “the Resistance” and other terms have been adopted as slogans by political parties and partisan political groups, OSC has advised that employees may, depending upon the circumstances, violate the Hatch Act by using or displaying in isolation “#resist,” or “the Resistance,” while on duty or in the workplace.

 

We anticipate that, as the election season becomes more active, there will be several slogans used by various candidates, partisan political parties, or political groups that would raise the same concerns if the slogans were used or adopted by a campaign to promote or defeat a partisan political candidate, political party, or political organization. The essential cautionary note of OSC’s advisories is to reaffirm the long-standing rule that criticism or praise that is directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group is considered to be political activity and cannot be conducted while on duty or in the workplace.

 

Remember, the Hatch Act’s restrictions concerning political activity only apply to employees while they are on official duty (including teleworking) or in the workplace (including Federal buildings or Federally-leased office space). The Hatch Act does not impose restrictions on the ability of employees to engage in non-fundraising political activity while off-duty and away from the workplace. The restrictions against political campaign fundraising are discussed immediately below. As always, employees who have questions about specific situations are encouraged to contact the USDA Office of Ethics at DAEO.ethics@usda.gov.

 

Restrictions on Political Contributions and Fundraising:

 

Employees may make personal contributions of their own money to political candidates, parties, or groups, and may attend political fundraisers in their personal capacity. Employees may never solicit, accept, or receive any political contributions. This means, for example, that it is not permissible for you to: host a fundraiser at your personal residence, solicit donations to a Political Action Committee, join a host committee of a fundraising event, use your official title in connection with fundraising activities, send or forward campaign fundraising e-mails, solicit campaign donations on Facebook, or retweet fundraising solicitations that you may receive to others. In other words, all Federal employees are expressly prohibited from soliciting political contributions from any person or organization. The restriction against partisan political fundraising applies to ALL employees at ALL times.

 

Employees who are in the “Less Restricted” category are permitted to speak at political fundraisers, in their personal capacities, but are not permitted to solicit funds in a speech and may not use their official titles. Employees should contact the Office of Ethics whenever they are invited to participate in a political fundraiser to ensure that their participation in the fundraiser complies with Federal law. Employees who are “Further Restricted” (career SES and Administrative Law Judges) cannot speak at partisan political fundraisers, or any other partisan political events, even in their personal capacity, and even if they do not solicit funds.

 

Volunteering for a Political Campaign:

 

As noted above, under the Hatch Act, career SES and ALJs are “further restricted,” may not act “in concert” with a partisan political campaign, and may not actively engage in the management of a campaign’s partisan political activities, even when on their own time. However, Federal employees who are “Less Restricted” are allowed to volunteer for political campaigns. They may do so only while off-duty, outside of a Federal building, may not solicit or receive campaign contributions, may not wear an official insignia or uniform, and may not use Federal resources. Volunteer activities for employees who are “Less Restricted” could include:

 

  1. an active part in managing or volunteering on a political campaign;
  1. serving as an officer of a political party or other political group, or as a member of a national, state, or local committee of a political party;
  1. canvassing for votes in support of, or in opposition to, a political candidate;
  1. addressing a convention, rally, caucus, or similar gathering of a political party in support of, or in opposition to, a partisan candidate for public office;
  1. assisting in “get out the vote” partisan phone banks;
  1. attending political fundraisers, but not soliciting political contributions;
  1. distributing campaign literature in partisan elections;
  1. assisting in voter registration drives; and
  1. circulating nominating petitions.

 

Please remember, these allowances apply only to individuals who are volunteering in their personal capacity, on their own time, and not in a Federal building. USDA Employees must not enlist subordinate employees to assist any partisan political campaign. Additionally, employees who are “Further Restricted” (career SES and Administrative Law Judges) cannot volunteer to assist any partisan political campaign.

 

Social Media and the Hatch Act:

 

Social media platforms are easily accessible to most employees while at work — on computers, smartphones, or other devices. Because social media provides instantaneous communication with a large audience, employees must be especially vigilant to comply with the Hatch Act when using social media while in the workplace, on duty, or anytime while using government- issued computer equipment or communications devices.

 

In general, employees who choose to use social media will comply with the Hatch Act if they remember the following prohibitions:

 

    1. Don’t post, like, share, or retweet a message or comment in support of or opposition to a political party, candidate in a partisan race, or partisan political group while on duty or in the workplace, even if your social media account is private.
    1. Never post, like, share, or retweet a message or comment where you knowingly solicit, accept, or receive a political contribution for a political party, candidate in a partisan race, or partisan political group.
    1. Never use your official authority or government social media resources (including government e-mail and twitter accounts) to post, like, share, or retweet a message or comment to influence to affect the outcome of an election.
    1. In addition to the three prohibitions above, “Further Restricted” employees (career SES and Administrative Law Judges) may not take an active part in partisan political campaigning on social media, even when off-duty and off-site. This means that, while further restricted employees can express their personal opinions about a candidate when off-duty, in their personal capacity, and outside the workplace, further restricted employees cannot post, like, share, or retweet a message from a political campaign or a candidate in a partisan political race.

The Hatch Act rules regarding social media are evolving as newer social media platforms are developed. When in doubt, you are advised to contact the USDA Office of Ethics for the latest guidance. Additionally, you can also view Hatch Act and social media guidance issued by the U.S. Office of Special Counsel, on its website at: https://osc.gov/Resources/HA%20Social%20Media%20FINAL%20r.pdf.

Other Limitations Applicable to All Employees:

 

All Federal employees, whether they are on or off-duty, may not:

  1. Run as a candidate in a partisan political election for either a Federal, State, or local elected office. (For the rules on nonpartisan elections,3 please contact the Office of Ethics);
  1. Use their official authority or influence for the purpose of interfering with or affecting the result of an election (e.g., using one’s official title when participating in political activity, using one’s authority to coerce another to participate in political activity, or soliciting or receiving services from a subordinate for any political purpose);
  1. Knowingly solicit or discourage the participation in any political activity of any person who has an application for any compensation, grant, contract, ruling, license, permit, or certificate pending before the staff member’s office;
  1. Knowingly solicit or discourage the participation in any political activity of any person who is the subject of, or a participant in, an ongoing audit, investigation, or enforcement action being carried out by the employee’s office;
  1. Intimidate, threaten, command, or coerce any Federal employee to engage in or not engage in any political activity; or
  1. Display pictures of candidates for partisan political office in one’s Federal workspace or in a Federal building, unless the following exception applies:

Employee personal photographs of any partisan political candidate may be displayed if all of the following apply: (1) the photograph was on display in advance of the election season; (2) the employee is in the photograph with the candidate; (3) the photograph is a personal one (i.e., taken at a personal event or function such as a wedding, and not at a campaign event or other partisan political event); and (4) the employee must not have a political purpose for displaying the photograph, namely promoting or opposing a political party or a candidate for partisan political office.

 

This memorandum summarizes highlights of the Hatch Act rules. Direct any questions to the Office of Ethics at (202) 720-2251 or at daeo.ethics@usda.gov. Additionally, employees can direct any questions to the Office of Ethics advisors assigned to service their Mission Areas at: www.ethics.usda.gov.