Special counsel recommends reforms to law covering improper political activities

Federal employees would not automatically lose their jobs for violating a law prohibiting certain political activities, under draft legislation that the Office of Special Counsel sent to Capitol Hill on Thursday.

OSC is recommending reforms to the 1939 Hatch Act, such as expanding the range of penalties under the law, including but not limited to removal. Currently, removal is the only penalty authorized for federal employees who violate the law. The Merit Systems Protection Board can determine after a hearing whether the violation warranted firing the employee. Under the draft bill, other penalties include a reduction in grade, debarment from federal employment for up to five years, suspension, reprimand, or a fine of up to $1,000.

Removal from employment as the only recourse for dealing with Hatch Act violations can be unfair to workers and can hinder OSC's ability to enforce the law properly, Special Counsel Carolyn Lerner said Thursday during a briefing with reporters on the proposed reforms. Lerner said agencies may be reluctant to lose employees who violate the Hatch Act since the only current penalty under the law is removal.

Prohibited activities under the Hatch Act, which has not been reformed since 1993, include running for office in partisan elections or engaging in political activity while on duty or in a government office. Federal workers also cannot solicit or receive political contributions from any person except in certain instances involving labor organizations or employee groups. Federal employees are allowed to be candidates for office in nonpartisan elections, contribute money to political organizations, and campaign for or against candidates in partisan elections, among other freedoms. In addition, the law provides some allowances for federal workers in Maryland, Virginia and other designated localities. The Office of Personnel Management has the authority to grant the partial exemption under certain conditions to communities where the government employs large numbers of voters or are in the immediate vicinity of the District of Columbia.

In addition, OSC is recommending reforming the law to allow state and local government employees to run in partisan elections. Currently, state and local government employees who oversee or are connected to federally funded programs are not able to run in partisan political elections, among other restrictions. The agency, which enforces the law in addition to its other duties, receives more than 2,000 inquiries each year regarding whether a particular candidate in a state or local political race is eligible to run. Of the complaints filed in fiscal 2011, 54 percent involved state or local workers, and the time frame for each investigation was unpredictable. Even an insignificant connection to federal funding in an employee's job restricts him or her from running in a partisan election. One recent example involved a Pennsylvania police officer in a canine unit who could not run in the local school board election because his work dog was tied to Homeland Security Department funding. Lerner said the Hatch Act was not intended to cover that type of situation.

"Clearly, the Hatch Act needs to be updated for many reasons," Lerner said.

Since 2000, OSC's Hatch Act unit has seen its workload increase more than 400 percent. "I think we should get out of the business of enforcing the Hatch Act in these state and local cases," she said. While OSC is seeking to allow state and local government employees to run in partisan elections, those workers still would be subject to other Hatch Act restrictions under the proposed reforms. Federal employees still would be prohibited from running for partisan office, under the draft bill, except in geographic locations that are exempt from that restriction.

OSC also is asking Congress to define "political activity" as it's outlined in the law as well as better define what constitutes the federal workplace in the age of telework and social media. For example, under current law, employees' homes do not meet the definition of federal workplace. OSC would like lawmakers to craft new advisories on guidance for appointees as it relates to political travel and political briefings. "It's something Congress really has to address," Lerner said of those proposed recommendations.

Lerner said she has met recently with House Oversight and Government Reform Committee Chairman Rep. Darrell Issa, R-Calif., and ranking member Rep. Elijah Cummings, D-Md., to discuss reforms to the law. She said both lawmakers were supportive of OSC's ideas. During a March congressional hearing, Lerner told lawmakers she would make a review of the Hatch Act a priority.

The number of complaints related to inappropriate political activity in the federal workplace increased in fiscal 2010, according to OSC. Since January, Congress and the Obama administration have been looking more closely at the 72-year-old law, which many regard as confusing and outdated.