The Hatch Act
A Look at Federal Limits
on Political Participation
By Robert M. Czech
Chair/CEO, New Jersey
Civil Service Commission
It’s a Presidential election year, and attention is turning to races at all levels of the ballot. For most public employees, their interest extends to who will be at the top of their arm of government. But some have a more personal stake in the outcome.
The Hatch Act, originally enacted by Congress in 1939, is a federal law that defines and limits the political activity of public employees.
There are few hard statistics as to how many public employees also serve in elected government posts. Those who do or who are considering a run for office or wish to become involved in partisan political activities on behalf of others are subject to strict federal requirements. These rules, known as the Hatch Act, ensure that the integrity of the political process and the government is not compromised.
The Hatch Act, originally enacted by Congress in 1939, is a federal law that defines and limits the political activity of public employees (5 U.S.C. §§ 7321-7326 applies to federal employees; 5 U.S.C. §§ 1501-1508 applies to state and local employees). It is primarily concerned with participation in partisan elections, whether as a candidate or an active supporter of one. The United States Supreme Court has upheld the constitutionality of the Hatch Act in United Public Workers of America v. Mitchell, 330 U.S. 75 (1947)and United States Civil Service Commission v. National Ass’n of Letter Carriers, 413 U.S. 548 (1973).
Who does the Hatch Act cover? On the state and local level, the Hatch Act applies to individuals principally employed by state or local executive agencies who work in connection with programs financed in whole or in part by federal loans or grants. Examples of the types of programs which frequently receive federal financial assistance include public health, welfare and housing, urban renewal and area redevelopment, public works, law enforcement, community development block grants, and more.
State and local employees continue to be subject to the Hatch Act while on annual leave, sick leave, leave without pay, administrative leave or furlough.
The Hatch Act also applies to employees of private, not-for-profit organizations that plan, develop and coordinate federal programs such as Head Start or the Community Service Block Grant.
Individuals employed by educational or research institutions, establishments, or agencies which are supported in whole or in part by state or political subdivisions thereof, or by recognized religious, philanthropic or cultural organizations are exempt from the Hatch Act.
What does the Hatch Act prohibit? State and local employees covered under the Hatch Act may not:
- use official authority or influence to interfere with or affect the results of an election or nomination for office;
- directly or indirectly coerce, attempt to coerce, command, or advise a state or local officer or employee to pay, lend, or contribute anything of value to a party, committee, organization, agency, or person for political purposes; or
- be candidates for public office in a partisan election. (This prohibition on candidacy for public office does not apply to the Governor, Lieutenant Governor, or mayor of a city—in other words, if you are an individual on the public payroll as a result of holding elective public office.)
What can employees do under the Hatch Act? State and local employees covered under the Hatch Act are free to engage in political activity to the widest extent consistent with restrictions imposed by law. Such employees may participate in all political activity not specifically restricted by law including candidacy for office in a nonpartisan election and candidacy for political party office.
They may register and vote, assist in voter registration drives, express opinions about candidates and issues, contribute money to political organizations or attend fundraisers, join a political party or club, sign and circulate nominating petitions, campaign for or against referendum questions and candidates in partisan elections, and other related activities.
While engaging in these activities employees must be acting in their personal capacity, not their official capacity. For example, they should not identify their official title when engaging in any of these activities. Employees may not engage in partisan political activities while in the workplace, or on work time.
How is the Act enforced? The U.S. Office of Special Counsel (OSC) is authorized to issue advisory opinions under the Hatch Act and to investigate violations of the Act. You may request advice by phone, fax, mail or e-mail
Hatch Act Unit
U.S. Office of Special Counsel
1730 M Street, N.W., Suite 218
Washington, D.C. 20036-4505
Tel: (800) 85-HATCH or (800) 854-2824
Fax: (202) 254-3700
Persons alleging a violation of the Hatch Act may use Form OSC-13 (Complaint of Possible Prohibited Political Activity) to submit their allegation to OSC. Form OSC-13 can be printed from the OSC website, www.osc.gov.
After investigating an alleged Hatch Act violation, OSC may seek disciplinary action against an employee before the U.S. Merit Systems Protection Board.
If the Board finds that an employee violated the Hatch Act and that the violation warrants dismissal from employment, the employing agency must either remove the employee or forfeit a portion of its federal assistance equal to two years' salary of the employee.
What state regulations are there concerning political activity? Prohibitions of the Hatch Act are not affected by state or local laws. An employee’s conduct is also subject to the laws of the state and the regulations of the employing agency. With respect to those jurisdictions operating under Title 11A of the the New Jersey Civil Service Act, the following provisions also apply: “a person holding a position in the career service or senior executive service shall not directly use or seek to use the position to control or affect the political action of another person or engage in political activity during working hours.” N.J.S.A. 11A:2-23
The New Jersey Civil Service Commission has also issued regulations incorporating the provisions of the Hatch Act. N.J.A.C. 4A:10-1.2 provides as above, and that:
…No employee in the career, senior executive or unclassified services whose principal employment is in connection with a program financed in whole or in part by Federal funds or loans, shall … be a candidate for public office in a partisan election. This provision does not apply to the Governor, the mayor of a city, the elected head of an executive department or an individual holding elective office, where that office is the sole employment connection to federally funded programs…Use official authority or influence that interferes with or affects the results of an election or a nomination for office; or… Directly or indirectly coerce contributions from subordinates in support of a political party or candidate.”
Civil Service regulations (N.J.A.C. 4A.2-5.1(b)) provide employee protection for permissible political activity. Specifically, “…an appointing authority shall not take or threaten to take any action against an employee in the career service or any employee in the senior executive service with career status based on the employee’s permissible political activities or affiliations.”
The preceding article is a brief summary of common questions concerning the Hatch Act. For a more detailed analysis, including FAQs, citations, and footnotes, we recommend that you visit the Civil Service Commission website (www.state.nj.us/csc) and click on the “News” tab under “About Us” on the main page, and the web page of the U.S. Office of the Special Counsel (www.osc.gov/hatchact.htm).
NJ CSC Chief of Staff Parthenopy Bardis contributed to this article.
Originally published in New Jersey
Municipalities, Volume 89, Number 6, June 2012