Debra D’Agostino, founding partner of The Federal Practice Group, speaks with Federal News Network
Posted By fedpractice || 3-Dec-2018
Scott Maucione with The Federal News Network interviews Debra D’Agostino about the long stretch between federal employee first amendment speech rights and the Hatch Act, when a recent OSC guidance suggested they could not advocate for impeachment of the president.
November 30, 2018 5:25 pm
A Friday clarification, obtained by Federal News Network, stated “OSC’s guidance was not intended to prevent all discussions of impeachment in the federal workplace.” The clarification also states “merely discussing impeachment, without advocating for or against its use against such a candidate, is not political activity” and therefore does not violate the Hatch Act.
The Hatch Act prohibits federal workers from engaging in political activity while on duty during an election period and from using their official authority to influence or interfere with elections.
The clarification follows original guidance released earlier this week that seemed to ban federal employees from discussing impeachment or the resistance movement while on the job.
“Questions have been raised about whether OSC considers discussions of impeachment in the federal workplace to be political activity,” OSC spokesman Zachary Kurz told Federal News Network. “We appreciate these questions from concerned federal employees and from members of the public. OSC is committed to ensuring that federal employees are able to exercise their first amendment rights to the fullest extent permitted under the Hatch Act.”
OSC issued the original guidance, which was first reported by The Washington Post, on Tuesday in a question and answer format. The policy stated that advocating for or against impeachment is considered political activity. It also stated using terms like “#resist” and resistance have “become inextricably linked with the electoral success (or failure) of the president,” and are therefore political activity.
OSC stated it issued the guidance after a federal employee asked the office whether an employee could display items that advocated for the impeachment of the president.
OSC is holding firm on its ban against displaying or using “resist” slogans. It previously banned pro-Trump slogans like “Make American Great Again.”
“In March 2018, OSC determined that President Donald Trump was a candidate for reelection. Because of 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,” the clarification memo stated.
Interest groups and federal employee unions decried the original Tuesday memo.
As of press time the unions have not responded to Federal News Network regarding clarification of the policy.
“This guidance is a broad reach that employees may find confusing. It could unnecessarily have a chilling effect on employees’ first amendment free speech,” National Treasury Employees Union President Tony Reardon said before OSC claried its policy.
American Oversight wrote a letter to OSC with its concerns about the memo.
The guidance “goes too far and opens a dangerous door for the Trump administration to crack down on dissent,” American Oversight Executive Director Austin Evers said. “Making it illegal to advocate for or against impeachment of Donald Trump or to resist administration policies like family separation or the Muslim ban could operate as a gag order against whistleblowers and impinge on the constitutional rights of public employees.”
The non-partisan government watchdog group issued a statement after OSC’s clarification, saying the office is giving employees a mixed message.
“This clarification is the opposite of clear, and it underscores why OSC needs to withdraw the guidance and start over at the drawing board,” Evers said. “Within two sentences, OSC says employees may ‘express an opinion about whether the president should be impeached’ but may not engage in ‘advocacy for or against the impeachment’ of the president. Whatever imagined distinction OSC sees between these positions, the guidance is completely unclear and confusing, and as a result, the OSC has again sent a chill across the public workforce.”
Debra D’Agostino, founding partner of the Federal Practice Group, told Federal News Network there is little precedence for the kind of guidance OSC issued.
“I don’t even have words for it,” D’Agostino said. “To interpret concepts like advocating for impeachment or even saying ‘#resist’ as being partisan political activity in a partisan election is so far away from any prior Hatch case law.”
D’Agostino said federal employees have well established first amendment speech rights, which have held up in court.
“The Hatch Act has always been perceived as very limited in scope and very targeted to specific activities,” D’Agostino said.
Coincidentally, OSC ruled Friday that six White House officials, included Principal Deputy Press Secretary Raj Shah violated the Hatch Act by using their official government Twitter accounts to engage in partisan political activity.
“Officials posted tweets in support of candidate Trump or the Republican Party including the Trump campaign slogans “Make America Great Again” or ‘#MAGA,’” stated a press release from the Citizens for Responsibility and Ethics in Washington. “Each Twitter account that was used for political activity is clearly intended and used for official White House or government business.”
CREW originally made the complaint to OSC about officials’ behavior.
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