On April 25, 2025, the Office of Special Counsel (OSC) issued a new advisory opinion revising its interpretation of the Hatch Act in a few respects.
The Hatch Act, found at 5 U.S.C. §§ 7321 – 7326, places restrictions on how, when, or in what manner a federal government employee may engage in political activity. Violations of the Hatch Act are enforced by OSC, and charges are adjudicated by the Merit Systems Protection Board (MSPB).
The advisory opinion addressed three issues: campaign paraphernalia in federal workplaces when an election campaign is not ongoing, OSC procedures concerning Hatch Act violation allegations against White House commissioned officers, and Hatch Act allegations against former employees who left federal service before OSC filed a complaint on the alleged violation.
Concerning campaign paraphernalia, OSC has opted to revert to its pre-2024 guidance (as spelled out in a 2020 advisory opinion), which permits federal employees to have election campaign items in the federal workplace or government-owned vehicles, provided that (a) it is after election day for the election at issue, and (b) the candidate has not announced their candidacy for a future elected office. This guidance applies to particular candidates’ campaign memorabilia, as opposed to paraphernalia for a political party or partisan political group.
Concerning White House staff, OSC indicated it was reverting to its prior practice of referring allegations of Hatch Act violations against “White House commissioned officers” (which OSC has defined as “senior White House officials appointed directly by the president”). Prior to 2024, OSC had taken the position that constitutional questions might exist concerning OSC and MSPB jurisdiction to enforce the Hatch Act against White House commissioned officers. To avoid the constitutional issue, pre-2024 OSC had limited its enforcement activities against these Executive Office of the President staffers to sending a notice to the president and leaving the decision on possible discipline to the president’s discretion. As OSC had noted in prior reports, this often resulted in presidents not imposing discipline for Hatch Act violations in the White House (of which the president was presumably a beneficiary), which former Special Counsel Dellinger referred to in the press and in OSC press releases as an “escape hatch.” Between 2024-2025, OSC had shifted to applying its MSPB enforcement mechanisms directly against White House commissioned officers who had allegedly violated the Hatch Act. Under the new advisory opinion, OSC will revert to its pre-2024 practice of limiting its enforcement activities to investigation and filing of notices with the president in the event if finds a possible Hatch Act violation and leaving actual imposition of discipline to presidential discretion.
Finally, OSC indicated that it would not refrain from filing new Hatch Act complaints against former federal employees, pending the outcome of ongoing MSPB litigation on the issue.
If you are a federal, state, District of Columbia or local government employee with questions regarding your rights and obligations in connection with the Hatch Act, consider contacting Gilbert Employment Law to request an initial consultation.