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Written by: Federal Practice Group
Written by: Federal Practice Group

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Union: Federal anti-resistance rule is too broad to be enforced

A lawsuit filed by the American Federation of Government Employees takes issue with where the line is drawn between Hatch Act violations and free speech protections. (AVNphotolab)

A 2018 Office of Special Counsel policy advising federal employees to not use impeachment or resistance language in the workplace may actually violate the Constitution’s free speech protections, according to a federal employee union.

The American Federation of Government Employees filed a lawsuit in the U.S. District Court for the District of Maryland Aug. 14, claiming that the OSC rule aimed at preventing Hatch Act violations actually infringes on federal employee’s rights to express their opinions.

“This suit is about protecting federal employees from political retribution in the workplace,” said AFGE National President J. David Cox Sr. in a news release.

“OSC’s vague, overbroad guidance creates an opening for managers and political appointees to go after career civil servants for politically motivated reasons. In fact, the guidance is so broad, an employee could even be guilty of violations if they voice support for the president’s policies. It’s one more example of the ways this administration is eroding institutional norms and attacking merit protections for public employees.”

The Hatch Act prevents federal employees from engaging in political activity while at the workplace, during work hours or using their official positions as government employees. This does not prohibit such employees from engaging in political activity on their own time, but rather ensures that political motivations remain separate from an employee’s official duties.

OSC’s 2018 guidance expanded what was prohibited under the Hatch Act to include advocacy for President Donald Trump’s impeachment or use of #resist and The Resistance in the federal workplace, arguing that such language impacted Trump’s potential reelection, and therefore constituted political activity.

But according to the AFGE suit, prohibiting those phrases inhibits employees’ constitutionally protected right to discuss what they may believe to be impeachable offenses or simply bad policy enacted by the Trump administration.

“What the whole lawsuit boils down to is defining political activity as understood under the Hatch Act,” said Joanna Friedman, a partner with the Federal Practice Group, in an interview with Federal Times.

“What this lawsuit focuses on is that using terminology such as ‘resist’ or ‘resistance’ and/or ‘impeachment’ in the workplace is not considered partisan political activity, but rather that this is free speech. And that’s not something that can be restricted under the Hatch Act.”

According to Friedman, AFGE has a “strong argument” in favor of their interpretation of where the Hatch Act restrictions end and constitutional free speech protections begin.

“Government employees have a right to say whether they believe the president, or any official, has committed a crime and a duty to speak up if they see waste, fraud or abuse,” said Austin Evers, Executive Director of American Oversight, a nonpartisan government watchdog representing AFGE in the case, in a news release.

“By equating conscientious objections grounded in the Constitution with partisan political activity, the OSC’s guidance has achieved a result it was created to avoid — it makes public service political and undermines the guardrails of good government.”

The Hatch Act has come under particular public attention in recent months, with OSC advising that White House counselor Kellyanne Conway be removed from her position for repeated Hatch Act violations.

“I think we’re in an interesting climate, in terms of the Hatch Act, because there have been many allegations of the administration’s own officials violating the Hatch Act, yet no actions have been taken against them. And so we find that the Hatch Act has been in the news in a way that has really been unprecedented,” said Friedman.

“I think what’s interesting about OSC’s advisory opinion on the resistance and impeachment language is that OSC has been quite stringent and vocal about the administration’s own Hatch Act violations. So I do find it interesting that they issued an opinion that seems to be kind of contrary to the hard stance they’ve been taking with this administration’s own Hatch Act violations. It left me wondering whether they somehow felt compelled to issue that opinion.”

Until the courts decide whether to issue an injunction on the case, which could take some time depending on how long the union or OSC decides to pursue their side, Friedman suggested that federal employees adopt the “obey now, grieve later” mentality toward the policy, and obey it until the court has made a final determination.

By Jessie Bur

News & Media

Guest Blog

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