[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35088-35102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17006]
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 734
RIN 3206-AH33
Political Activities of Federal Employees
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations regarding the political activity of Federal employees.
These regulations will inform Federal employees of the political
activities which are permitted and prohibited under the Hatch Act
Reform Amendments of 1993. Covered employees also should refer to OPM's
interim regulations as part 733, published in the Federal Register in
the February 4, 1994 edition, which specifically address political
activities connected with local elections in designated communities.
EFFECTIVE DATE: August 5, 1996.
FOR FURTHER INFORMATION CONTACT:
Jo-Ann Chabot at (202) 606-1700.
SUPPLEMENTARY INFORMATION: On October 6, 1993, the President signed the
Hatch Act Reform Amendments of 1993. The Reform Amendments became
[[Page 35089]]
effective on February 3, 1994 and OPM has the authority to issue
regulations under the Reform Amendments. On September 23, 1994, OPM
issued interim regulations with a request for comments at part 734
concerning the political activities that generally are permitted and
prohibited to Federal employees. OPM received comments from nine
Federal agencies, two Federal employee labor organizations, and an
individual before the comment period closed on November 22, 1994. OPM's
observations about the comments follow the numerical order of the
regulations starting at subpart A and ending with subpart G.
Comment on Supplementary Information Preceding the OPM Interim
Regulations
One Federal agency commented that the supplementary information
preceding OPM's interim regulations requires clarification of the
language which makes it appear that Sec. 734.208 applies exclusively to
Federal employees who belong to a Federal employee labor organization.
The agency noted that the language of Sec. 734.208 clearly shows that
the requirement of belonging to a Federal employee labor organization,
or other Federal employee organization, applies only to the fundraising
activities described in Sec. 734.208(b)(4). OPM agrees. Every employee
who is covered under subparts B and C of part 734 may participate in
the activities described in Sec. 734.208 (a) and (b) (1) through (3).
The activities described in Sec. 734.208(b)(4) are limited to members
of the Federal employee labor organizations and Federal employee
organizations that meet the requirements of 5 U.S.C. 7323(a)(2) and 5
CFR 734.103. Sections 734.404(c)-(d) and 734.410 describe permitted and
prohibited fundraising activities for employees covered under subpart
D.
Subpart A--General Provisions
Section 734.101 of the interim regulations provides definitions for
certain terms used throughout the regulations. The regulations define
``accept'' and ``receive'' as the acts of accepting or receiving
something from a person officially on behalf of a candidate, a
campaign, a political party, or a partisan political group. One Federal
agency and one Federal employee labor organization commented that the
language from the supplementary material preceding the interim
regulations which noted that ``ministerial activities preceding or
following the official acceptance and receipt are not covered under the
definitions'' should be added to the definitions. OPM agrees that
adding such language to the definitions of ``accept'' and ``received''
clarifies the definitions and has made the suggested changes.
OPM also received two comments on the definition of ``on duty'' in
Sec. 734.101. A Federal agency commented that the definition should
contain language from the supplementary material preceding the interim
regulations noting that it is not appropriate to grant excused absence
(administrative leave) to participate in political activities. This
agency also noted that the definition should note that it is not
appropriate to request sick leave in order to participate in political
activity. While OPM has the authority to regulate a covered employee's
partisan political activity, the granting of excused absence is a
matter of agency discretion. However, an agency's decision to grant
excused absences for the purposes of engaging in partisan political
activities or partisan political management would not be appropriate.
Indeed, granting excused absences solely for the purposes of
participation in partisan political activities might be a violation of
the prohibitions against use of official authority or influence to
interfere with or affect the results of an election. In addition, 5
U.S.C. 6307 and OPM's regulations at 5 CFR 630.401 prescribe the
conditions under which an employee may use sick leave. It is not
appropriate to permit the use of sick leave to participate in partisan
political activities. Sick leave should be granted only under the
conditions prescribed by 5 U.S.C. 6307 and 5 CFR 630.401.
Citing Bureau of Alcohol, Tobacco and Firearms v. Federal Labor
Relations Authority, 464 U.S. 89, 105 (1983), a Federal employee labor
organization commented that the definition of ``on duty'' should
exclude ``official time'' given to employees who are labor
organizations officials because employees on ``official time'' are not
considered to be in duty status, except for purposes of being paid.
Thus, the labor organization noted that, as a matter of statutory
construction, official time is simply not time ``on duty.'' The Supreme
Court concluded in this decision that Federal employees who negotiate
on behalf of a labor organization are not conducting official business
on behalf of the Government. However, the Supreme Court reached this
conclusion for the limited purpose of determining whether Federal
employees who represent their labor unions in collective bargaining
with agencies are entitled to reimbursement from the Government for
travel and per diem expenses.
Citing National Federation of Federal Employees and U.S. Department
of Veterans Affairs, 47 FLRA 1118, 1124, (1993) (NFFE) and American
Federation of Government Employees and U.S. Department of Labor, 39
FLRA 546, 553 (1991), (AFGE), the labor organization also noted that
the Federal Labor Relations Authority (FLRA) has sanctioned the use of
official time for union representatives to lobby Congress concerning
working conditions. NFFE concerned a collective bargaining proposal to
authorize the use of a reasonable amount of time as official time under
5 U.S.C. 7131(d) to lobby members of Congress in support of or
opposition to pending or desired legislation which would affect the
working conditions of employees represented by the union. The FLRA
found that 5 U.S.C. 7102 contemplates that employees will express their
views to Congress through their exclusive representative, and
specifically grants employees functioning as labor representatives the
right to present the views of the labor organization to Congress. It
also found that the proposal concerned labor-management relations
activities for which official time is authorized under section 7131(d).
Although the FLRA concluded that the proposal was negotiable under
section 7131(d), the FLRA reached its decision within the context of
petitioning Congress regarding nonpartisan issues that generally affect
employees' working conditions. It did not determine whether these
statutory provisions also provide for official time to participate in
partisan political activities on behalf of individuals who are
candidates for partisan political office.
AFGE concerns an agency denial of an employee's request to use an
agency automobile and to use official time for travel to and from a
hearing regarding his claim for workers' compensation. The FLRA held
that 5 U.S.C. 7131(d) did not preclude the parties in the case from
agreeing to provide for official time in circumstances unrelated to
labor-management relations activities, provided that granting such
official time was consistent with the statute and other applicable laws
and regulations. The FLRA cited attendance at hearings before the Equal
Employment Opportunity Commission and responding to discovery requests
in cases before the Merit Systems Protection Board as examples of
circumstances unrelated to labor-management relations activities where
use of official time might be authorized. Thus, this decision clearly
was made
[[Page 35090]]
within the context of prehearing for and appearing at administrative
hearings on behalf of employees, and does not address the use of
official time to participate actively in partisan political activities.
The Federal Service Labor-Management Relations Statute (Labor
Statute), at 5 U.S.C. 7101(a)(1)(A) provides that statutory protection
of employee rights to organize, bargain collectively, and participate
through labor organizations in decisions which affect them safeguard
the public interest. It also provides at section 7102 that employees
who represent labor organizations are entitled to present labor
organization views to Congress in connection with matters regarding
conditions of employment. However, none of the provisions in chapter 71
of title 5, United States Code, concern participation in partisan
political activities.
The Hatch Act Reform Amendments of 1993, enacted subsequent to the
Labor Statute, specifically address participation in partisan political
activities and permit Federal employees to participate actively in most
of the partisan political activities that previously had been
prohibited to these employees under the original Hatch Act. In return
for the opportunity for wider political participation, the Reform
Amendments specifically prohibit Federal employees from engaging in any
partisan political activities basically while on duty or on Federal
premises.
The intent of Congress in enacting the Reform Amendments, a statute
specifically intended to govern the partisan political activities of
Federal employees, controls the previously enacted provisions on labor-
management, at 5 U.S.C. Chapter 71, which clearly do not permit Federal
employees to participate in partisan political activities while they
are on duty or on Federal premises, and do not even address
participation in partisan political activities. In contrast, the Reform
Amendments, at 5 U.S.C. 7324(a), specifically prohibit most Federal
employees from such participation and provide for only one exemption
from the prohibition. The Reform Amendments, at 5 U.S.C. 7324(b),
exempt employees whose official duties and responsibilities continue
outside normal duty hours and while away from the normal duty post, and
who are (1) paid from an appropriation for the Executive Office of the
President, or (2) appointed by the President, by and with the advice
and consent of the Senate, to positions that are located within the
United States and involve determinations of policy to be pursued by the
United States in relations with foreign powers or in the nationwide
administration of Federal laws. If Congress had intended to exempt
other employees from the prohibition, Congress clearly would have
provided for such exemptions in the statute itself.
In addressing the question of whether the Reform Amendments
prohibit Federal employees from making voluntary salary allotments to
political action committees, an opinion issued by the Office of Legal
Counsel at the Department of Justice to the Office of Personnel
Management on February 22, 1995, also discussed at length the
prohibitions against partisan political participation on duty or on
Federal premises, and Congressional intent in enacting it. The opinion
stated:
It is evident from the statements of the (Reform Amendments')
leading sponsors that Congress intended to create a bright-line
rule, with no exceptions: Section 7324(a) prohibits covered
employees from engaging in all on-duty and on-site political
activity. As the principal Senate sponsor of the bill states, on-
the-job political activity ``would be absolutely and unequivocally
prohibited.'' 139 Cong. Rec. S8605 (daily ed. July 13, 1993)
(statement of Senator Glenn). Thus, for example Congress intended to
prohibit the wearing of political buttons on duty. Nor can covered
employees stuff envelopes with political materials or send out
campaign materials while they are on the job or in a federal
building--such activities are permitted only off-site and ``off the
job.''
Thus, Congress clearly intended to prohibit partisan political
participation on duty, and on Federal premises, and exempted only one
category of employees from these prohibitions. Consequently, for the
purposes of the Reform Amendments, OPM cannot define ``on duty'' to
exclude ``official time,'' as that term is defined in the Labor
Statute.
In this connection, Example 5 in Sec. 734.306 of the interim
regulations, which issued September 23, 1994 (59 FR 48756, 48773-
48774), provides that employees who are not on duty may engage in
political activity in the office of their labor organization even if
the space is provided by an agency or instrumentality of the United
States Government. In view of the Office of Legal Counsel opinion of
February 22, 1995, a subsequent intervening event, OPM found it
necessary to revisit its initial review of the statutory scheme
established through the Reform Amendments. Based on this further
review, OPM has concluded that the Reform Amendments require it to
treat the questions of time and space consistently in considering the
activities which the Reform Amendments permit and prohibit. Moreover,
it is clear both from OPM's statutory review and the Office of Legal
Counsel opinion of February 22, 1995, that Congress intended to create
a bright line prohibition against partisan political activities when
conducted on duty or on Federal premises, or both. Consequently, OPM
must remove Example 5 from Sec. 734.306 of the interim regulations.
A Federal agency commented that the definition of ``political
purpose'' should include non-partisan political purposes because many
political purposes are non-partisan. In the interim regulations, the
definition of ``political activity'' is limited to partisan political
activity because OPM has interpreted the Reform Amendments as
restricting Federal employees' participation in partisan political
activities. The legislative history of the Reform Amendments shows that
Congress was well aware that the Hatch Act prohibited active
participation in partisan political activities and, in enacting the
Reform Amendments, Congress was referring to partisan purposes and
activities when referring to a political purpose or political activity.
S. Rep. No. 57, 103rd Cong. 1st Sess. 2-6, 13-14, 24-39 (1993); 139
Cong. Rec. S8605-8606 (daily ed. July 13, 1993) (statement of Senator
Glenn); id. at S8685-8686 (daily ed. July 14, 1993) (statement of
Senator Roth); id. at S8701-8703 (daily ed. July 14, 1993) (statement
of Senator Stevens); id. at S8946 (daily ed. July 20, 1993) (statement
of Senator Durenberger); id. at S8947-8948 (daily ed. July 20, 1993)
(statement of Senator Levin). See H.R. Rep. No. 16, 103rd Cong. 1st
Sess. 16 (1993) (to accompany H.R. 20). President Clinton's remarks on
signing the Reform Amendments, delivered October 6, 1993, the day on
which he signed the Reform Amendments, reflect his understanding that
the terms ``political purpose'' and ``political activity'' refer to
partisan political purposes and partisan political activities. He
stated:
The Federal Employees Political Activities Act, which I'm about
to sign, will permit Federal employees and postal workers on their
own time to manage campaigns, raise funds, to hold positions within
political parties. Still, there will be some reasonable
restrictions. They wouldn't be able to run for partisan political
office themselves, for example, and there will be some new
responsibilities, which I applaud the Federal employees' unions for
embracing and supporting.
While we restore political rights to these millions of citizens,
we also hold them to high standards. The Federal workplace, where
the business of our Nation is done will
[[Page 35091]]
still be strictly off limits to partisan political activity.
Therefore, defining ``political purpose'' as a partisan political
purpose is consistent with other definitions in the regulations,
Congressional intent as reflected in the legislative history of the
Reform Amendments, and President Clinton's understanding of the term
``political activities'' as reflected in his remark on signing the
Reform Amendments.
Two Federal agencies and one Federal labor union commented that the
interim regulations do not provide enough guidance concerning a ``room
or building occupied in the discharge of official duties by an
individual employed or holding office in the Government of the United
States or any agency or instrumentality thereof.'' The Federal labor
organization noted that the regulations did not specify which areas in
a ``room or building * * * '' encompasses. Another Federal agency noted
that the regulations did not address use of areas such as recreational
space in leased space or cafeterias, hallways, restrooms and employee
lounges. In response to these comments, OPM has added a definition of
``room or building occupied in the discharge of official duties by an
individual employed or holding office in the Government of the United
States or any agency or instrumentality thereof.''
The definition specifically excludes those rooms in the White House
which are part of the Residence area or which are not regularly used
solely in the discharge of official duties. This exclusion is based on
the January 17, 1979, opinion of the Office of the Legal Counsel of the
Department of Justice. The same principles that govern the White House
also would apply to the residence of the Vice President which,
historically, has been treated like the White House. Therefore, the
same analysis and conclusions that apply to the White House also apply
to the residence of the Vice President.
The Federal labor organization further commented that political
activities in areas defined as ``public areas'' in the General Services
Administration's (GSA's) Federal Property Management Regulations should
not be prohibited because GSA's regulations create a protected public
forum. OPM sought comment from GSA on the issue of ``public areas''.
GSA noted that ``public areas'' remain ``rooms or buildings'' even when
in use by the public for cultural, recreational, or educational
activities governed by the Cooperative Use Act of 1976, 40 U.S.C.
490(a)(17), as implemented in the Federal Property Management
Regulations at 41 CFR subpart 101-20.4. GSA provided that the
Cooperative Use Act and the Reform Amendments should be read together.
Accordingly, the definition of ``room or building'' incorporates the
definition of ``public area'' in 40 U.S.C. 490(a)(17) and 41 CFR 101-
20.003.
OPM also sought comments on this issue from the United States
Office of Special Counsel (OSC), which noted that the GSA regulations
at 41 CFR 101-20.003 define ``public areas'' as any areas of a building
under the control and custody of GSA which ordinarily are open to the
public, such as lobbies, meeting rooms, auditoriums, and similar areas
not assigned to a lessee or occupant. OSC stated its belief that
permitting political activities ``in such generally defined areas could
lead to confusion and enforcement problems in trying to determine what
parts of buildings remain `off limits' for such activity.'' It noted
further that ``allowing political activity in a hallway and courtyard
but not a conference room, or in an auditorium but not a cafeteria,
could result in confusing and possibly unenforceable interpretations.''
Moreover, the Supreme Court noted in Cornelius v. NAACP Legal
Defense and Education Fund, Inc., 47 U.S. 788, 802-903 (1985), a
designated public forum is created in a Federal office building, or any
other government property, only when there is a ``clear intent to
dedicate the property for assembly, debate and speech.'' The
Cooperative Use Act does not dedicate every public building as a public
forum, but only authorizes the GSA Administrator to make certain spaces
available ``on occasion'' and ``on such other terms and conditions as
the Administrator deems to be in the public interest'' if such use
``will not disrupt the operation of the building.'' In Cornelius, the
Supreme Court held that it will not ``infer that the government
intended to create a public forum when the nature of the property is
inconsistent with expressive activity'' and is reluctant to find a
``designated public forum,'' if expressive activity would disrupt the
principal function of the property. Id. at 803-804. In addition, in
Greer v. Spock, 424 U.S. 828, 831-836 (1976) the Court held that
allowing some speech or expressive activity in a forum does not
dedicate the property as a ``public forum'' for free and uninhibited
expressive activity by the public. Accordingly, ``public areas'' are
not ``public fora'' and employees are prohibited from engaging in
partisan political activity in those areas. In view of this, OPM has
deleted Example 11 from Sec. 734.306 which provides that a Federal
employee may engage in political activity in the courtyard outside of a
Federal building when the employee is not on duty.
One Federal agency commented that the regulations did not specify
whether an area leased to contractors such as a cafeteria or fitness
facility is a ``room or building * * * .''. Pursuant to the discussion
above, we have added an example in Sec. 734.306 providing that
employees may not engage in partisan political activity in space leased
to contractors in Federal buildings.
Regarding Sec. 734.306 of the interim regulations, a Federal labor
organization commented that the regulations imply that the prohibition
on political activities in rooms or buildings occupied in the discharge
of official duties does not extend to areas not controlled by the
Government, such as union offices and the leased offices of candidates.
The labor organization suggested modifying Example 5 in Sec. 734.306 to
state that political activity is permitted in space, such as meeting
rooms or other facilities, temporarily under the control of labor
organizations or other non-government entities. In view of the Reform
Amendments' prohibition against partisan political participation on
Federal property, and the Office of Legal Counsel's interpretation of
that prohibition, as described in the discussion relating to the
definition of the item ``on duty'' in Sec. 734.101, OPM must remove
this example from Sec. 734.306.
A Federal employee labor organization commented that the definition
of ``subordinate'' in the interim regulations would suggest that it
includes more categories of employees than the definitions of the terms
``supervisor'' and ``management official'' in 5 U.S.C. 7103(10) and
(11). This organization suggested that, rather than defining the term
``subordinate,'' the regulations use the definition of ``supervisor''
in 5 U.S.C. 7103(10), because the definition of ``supervisor'' is
familiar to many Federal employees. The interim regulations define
``subordinate'' as ``the relationship between two employees when one
employee is under the supervisory authority, control or administrative
direction of the other employee.'' OPM believes that the definition of
``subordinate'' is clear and relects the intent of Congress to prevent
any coercion of subordinate employees by a supervisor or any other
employee who may otherwise direct, control or exercise authority over
an employee.
Section 734.102 outlines the authority of the Office of Personnel
Management, the Office of Special Counsel, and the
[[Page 35092]]
Merit Systems Protection Board under the Reform Amendments and the
implementing regulations. One Federal employee labor organization
commented that this section should cite to the Reform Amendments as the
underlying authority. OPM agrees and has added these citations.
One Federal agency and one Federal employee labor organization
commented that the regulations do not specify whether the Office of
Special Counsel and the Merit Systems Protection Board have exclusive
jurisdiction. OPM agrees that the regulations need clarification.
Individual agencies do not have authority to investigate suspected
political activity violations or to impose administrative remedies.
Therefore, OPM is changing the regulations to reflect that the Office
of Special Counsel and the Merit Systems Protection Board have
exclusive jurisdiction.
Section 734.104 prohibits further restriction on the political
activities of covered employees except for employees who are appointed
by the President by and with the advice and consent of the Senate,
employees who are appointed by the President, non-career Senior
Executive Service members, Schedule C employees (appointed pursuant to
5 CFR 213.3301, 213.3302) and any other employees who serve at the
pleasure of the President. A Federal agency suggested adding a new
subsection to cover United States Trustees appointed under 28 U.S.C.
581. The exceptions in Sec. 734.104 are based upon a September 20, 1994
opinion of the Office of Legal Counsel of the Department of Justice
issued to the Office of Personnel Management which provided that an
Administration could impose additional restrictions on the specific
groups of political appointees outlined in Sec. 734.104. Accordingly,
the President or his designee may further restrict the political
activities of the specific employees described in Sec. 734.104.
However, pursuant to 28 U.S.C. 581, United States Trustees serve at the
pleasure of the Attorney General, not the President, and do not fall
within the exceptions provided by the Office of legal counsel Opinion.
therefore, OPM does not have the authority to add the United States
Trustees to the list in Sec. 734.104.
Subpart B--Permitted Activities
Section 734.203 of the interim regulations permits employees under
subpart B (Permitted Activities) to participate in nonpartisan
political activities and describes various nonpartisan activities. A
Federal employee labor organization noted that Sec. 734.203 fails to
reflect that 5 U.S.C. 7211 provides Federal employees with a statutory
right to petition Congress. It further commented that this issue is
confusing to Federal employees, and suggested adding another example to
Sec. 734.203 which illustrates that the Reform Amendments do not
prohibit Federal employees from exercising their rights under 5 U.S.C.
7211. OPM agrees with this suggestion, and has added such an example to
Sec. 734.203.
Section 734.204 of the interim regulations concerns permitted
participation in political organizations. A Federal agency suggested
amending this section by adding another paragraph which specifies that
an employee may serve as a delegate, alternate, or proxy to a political
party convention. OPM agrees with this suggestion and has added such a
paragraph to Sec. 734.204.
Example 2 in Sec. 734.204 specifies that an employee may serve as
an officer of a partisan or nonpartisan political action committee, as
long as the employee does not personally solicit, accept, or receive
political contributions. A Federal employee labor organization
suggested clarifying the example by stating that ministerial activities
which precede or follow the official acceptance and receipt of
contributions are not covered under the regulatory definitions of
``accept'' and ``receive.'' OPM agrees with this suggestion and has
amended Example 2 accordingly. Example 2 also describes a political
action committee as partisan or nonpartisan. This description does not
accord with the definition of political action committee that OPM has
added to its political activity regulations at 5 CFR part 734. The
definition of this term does not distinguish between partisan and
nonpartisan political action committees. Therefore, OPM has further
amended Example 2 by removing the descriptive terms ``partisan'' and
``nonpartisan.''
Section 734.205 of subpart B (Permitted Activities) describes
permissible political activities connected with participation in
campaigns for partisan political office. Example 5 in this section
specifies that an independent contractor is not covered under subpart B
and may display a political button while performing his contractual
duties. A Federal employee labor organization submitted several
comments concerning the display of political buttons by employees who
are covered under subpart B. OPM has discussed those comments in
connection with its discussion of Sec. 734.306, infra, which prohibits
partisan political participation while on duty, in uniform, in any room
or building occupied in the discharge of official duties, or while
using a Government-owned or leased vehicle.
Section 734.207 concerns candidacy for public office and permits
employees to run as independent candidates in the local partisan
elections described in 5 CFR part 733, or as candidates in nonpartisan
elections. A Federal agency proposed that OPM add an example to this
provision specifying that employees may distribute campaign leaflets,
even though the leaflets include information on where to send
contributions. The Federal agency further noted that the example also
should specify that the employee should refer to another campaign
worker any questions concerning further information about
contributions. OPM agrees with this suggestion, but has provided in the
example that such questions should be referred to another campaign
worker who is not a Federal employee. OPM also believes that it would
be more appropriate to add the example to Sec. 734.205, which concerns
participation in campaigns for partisan political office, rather than
to Sec. 734.207.
Section 734.208 describes permissible activities connected with
participation in fundraising. Subsection (b)(2) permits employees to
accept and receive political contributions in a partisan election
described in 5 CFR part 733, which pertains to the political activities
of covered employees who reside in certain localities designated by
OPM. A Federal agency stated its belief that subsection (b)(2)
conflicts with the statutory definition of the term ``political
contribution'' included in section 2(a) of the Reform Amendments and
codified at 5 U.S.C. 7322(3), as amended, which does not refer to
contributions for ``partisan'' political purposes. Therefore, the
Federal agency suggested deleting subsection (b)(2) from Sec. 734.208
of the OPM regulations.
Section 2(a) of the Reform Amendments, codified at 5 U.S.C. 7325,
as amended, authorizes OPM to issue regulations permitting employees,
``without regard to the prohibitions in paragraphs (2) and (3) of
section 7323(a) (of title 5, United States Code),'' to take an active
part in certain local elections. Section 7323(a)(2) and (3),
respectively, prohibit employees from knowingly soliciting, accepting,
or receiving political contributions, and from running ``for the
nomination or as a candidate for election to a partisan political
office.'' Candidacy for partisan political office occurs within the
context of partisan political elections. Accordingly,
Sec. 734.208(b)(2) of the OPM regulations does not conflict with the
[[Page 35093]]
definition at 5 U.S.C. 7322(3), as amended. Therefore, OPM has not
deleted Sec. 734.208(b)(2) from the final version of its regulations.
Section 734.208(b)(4)(ii) of the regulations provides that, under
specified limited circumstances, an employee may solicit, accept, or
receive political contributions from another employee who is not a
subordinate employee. A Federal employers labor organization suggested
including in the regulations the definition of the term ``supervisor''
stated at 5 U.S.C. 7103(10). This suggestion already has been addressed
in the discussion of Sec. 734.101 of the Regulations.
Example 5 in Sec. 734.208 prohibits employees from making telephone
solicitations for political contributions, even anonymously. A Federal
employee labor organization noted that, if a telephone solicitation
truly was anonymous, there would be no way of finding the employee who
might have made the solicitation. The Federal employee labor
organization further noted that a reference to anonymous telephone
solicitations might even encourage employees to make such
solicitations. Consequently, it suggested that OPM delete the reference
to anonymous telephone solicitions in Example 5. OPM believes that this
reference makes it clear to Federal employees that, except for
solicitations made under the circumstances described in 5 U.S.C.
7323(a)(2), solicitations of political contributions, even anonymous
telephone solicitations, are prohibited under the Reform Amendments.
Therefore, OPM will retain the reference to anonymous telephone
solicitations in Example 5.
Example 11 in Sec. 734.208 provides that a Federal employee may
solicit, accept, or receive the uncompensated volunteer services of any
individual, except a subordinate employee, to work on behalf of a
partisan political candidate or organization. A Federal employee labor
organizations suggested deleting the phrase ``except a subordinate
employee'' from Example 11. The labor organization said that the
interim regulations clearly specify that a political contribution does
not include the uncompensated volunteer services of an individual.
Thus, the labor organization did not find any basis for the example
prohibiting any employee from soliciting the volunteer services of
another employee.
Although it is true that uncompensated volunteer service of an
individual is not a political contribution, OPM believes that
soliciting such services from subordinate employees is covered under
Sec. 734.302, which prohibits employees from using their official
authority or influence for the purpose of influencing or affecting the
results of an election. OPM further believes that removing the
reference to subordinate employees in Example 11 would mislead
employees into believing that part 734 permits employees to solicit,
accept ore receive such services from subordinate employees. Therefore,
OPM has retained the reference to subordinate employees in Example 11.
The labor organization also said that Example 11 is at odds with
Example 4 in Sec. 734.208, which permits employees to sign letters
soliciting the contribution of uncompensated services of individuals.
It noted that, in a mass mailing, an employee's subordinates might
receive these letters. OPM agrees that Example 4 is confusing and
requires clarification in this regard. Therefore, it has revised
Example 4 to specify that an employee may not knowingly send such a
letter to his or her subordinate employees. However, Example 4 also
will specify that it is permissible to sign such letters as part of a
general mass mailing, as long as the mailing is not specifically
targeted to one's subordinate employees.
Another Federal employee labor organization noted that employees
who are not members may contribute to the labor organization's
political action committee, but Federal employees associated with the
labor organization may not accept or receive the contribution. It
suggested that Sec. 734.208 might be clarified through an additional
example stating that a Federal employee labor organization can receive
contributions, independent of their receipt by Federally employed
members of the labor organization, and describing procedures for making
such contributions. OPM believes that the regulations clearly state
that any employee may contribute to the multicandidate political action
committee of a Federal labor or Federal employee organization, and that
the Federally employed members of such organizations may not accept
contributions from Federal employees who are not organization members.
Therefore, OPM believes that it is not necessary to add the suggested
example to Sec. 734.208.
Finally, the Reform Amendments include an exception to the general
prohibition on soliciting, accepting, or receiving political
contributions. This exception permits employees to solicit, accept, or
receive such contributions from other employees who are not subordinate
employees and who are members of the same Federal labor organization or
Federal employee organization for the multicandidate political
committees of their organizations. It may not be clear to employees
that this exception only extends to the general prohibition against
soliciting, receiving, or accepting political contributions. It does
not extend to the other prohibitions against engaging in partisan
political activities either while on duty, or while on Federal
premises, or both. Thus, employees may solicit, accept, and receive
political contributions for the multicandidate political committees of
their organizations from employees who are not subordinates and who
belong to the same Federal labor or employee organization. However,
they may not conduct such activities either while they are on duty, or
while on Federal premises, or both. Accordingly, OPM has added an
example to Sec. 734.208 to clarify this matter. In addition, OPM notes
that labor organizations certified by the National Labor Relations
Board pursuant to 29 U.S.C. 151 et seq. to represent Postal Service
employees are not covered under the definition of ``labor
organization'' in 5 U.S.C. 7103(4) and, therefore, are not Federal
labor organizations within the meaning of the Reform Amendments.
However, these Postal Service labor organizations clearly qualify as
Federal employee organizations for purposes of the Hatch Act Reform
Amendments.
Subpart C--Prohibited Activities
Section 734.302 prohibits employees from using their official
authority or influence in order to interfere with or affect the results
of an election. A Federal agency commented that this section does not
give adequate guidance and needs to be clarified. The agency noted that
if the section intended to prohibit misues or coercion that it did not
clearly do so. OPM agrees that the Reform Amendments intended to
prevent employees from misusing their official authority or influence
in order to interfere with or affect the result of an election. OPM is
revising its regulations to clarify that Sec. 734.302 not only
prohibits the misuse of official authority such as the use of an
official title, as distinguished from a general form of address such as
``The Honorable,'' while participating in partisan political
activities, but also bans coercive actions such as awarding contracts
on the basis of contributions to partisan political campaigns or
soliciting subordinates for any partisan political purpose. OPM notes
in this regard that the merit system principles, at 5 U.S.C.
2301(b)(8), provide that employees should be protected against
arbitrary
[[Page 35094]]
action, personal favoritism, and coercion for partisan political
purposes. Section 2301(b)(8) also provides that employees should be
prohibited from using their official authority to interfere with or
affect an election or a nomination for election. Moreover, 5 U.S.C.
2302(b)(3) makes it a prohibited personal practice to coerce the
political activity of any person (including the providing of any
political contribution or service), or to take action against an
employee for his or her refusal to participate in these political
activities. Thus, soliciting uncompensated volunteer services from a
subordinate for a political purpose clearly falls within the
prohibition against the use of official authority to interfere with or
affect an election.
Accepting or receiving uncompensated volunteer services from a
subordinate results in as great a potential for coercion, or the
appearance of coercion, as soliciting such services from a subordinate.
Although an employee might not directly solicit uncompensated volunteer
services from a subordinate, he still could make it clear to the
subordinate in more subtle ways that it would be in the subordinate's
best interest to provide such services. In view of a superior's
authority to promote, discipline, issue awards, or take other personnel
actions affecting an employee's career, or to make recommendations
regarding such actions to an official above him in the chain of
command, and the potential for coercion that exists under such
circumstances, accepting and receiving uncompensated volunteer services
from subordinates also falls within the prohibition against the use of
official authority to interfere with or affect the results of an
election. Accordingly, OPM will retain the prohibition against
accepting and receiving uncompensated volunteer services from
subordinates.
Section 734.303 describes prohibited activities connected with
fundraising. Subsection (d) prohibits employees from soliciting,
accepting, or receiving uncompensated volunteer services from
individuals who are subordinates. A Federal employee labor organization
commented that, because the definition of ``political contribution''
does not include uncompensated volunteer services, employees should not
be prohibited from soliciting, accepting, or receiving such services
from their subordinates. For the reasons stated in its discussion of
Sec. 734,302, supra, OPM is retaining these prohibition in its
political activity regulation at part 734.
A Federal agency noted that the regulations do not reflect
specifically that, as long as an employee is not coerced, the employee
may voluntarily donate uncompensated volunteer services to his
supervisor. While OPM's regulations do not specifically prohibit an
employee from voluntarily donating uncompensated volunteer services to
his supervisor, Sec. 734.303(d) of the regulations does prohibit a
supervisor from accepting such services. Therefore, the concern
expressed by this agency in its comment has been adequately addressed
in the regulation.
This prohibition clearly would not apply to requests for volunteer
services made by the President or the Vice-President to the employees
specified in 5 U.S.C. 7324(b)(2) whose duties and responsibilities
continue outside of normal duty hours and away from the normal duty
post, and who are (1) paid from an appropriation for the Executive
Office of the President, or (2) appointed by the President, by and with
the advice and consent of the Senate, whose positions are located
within the United States and who determine policies to be pursued by
the United States in relations with foreign powers or in the nationwide
administration of Federal laws. Congress recognized their special
status in specifically excluding them from the prohibitions against
political participation while on duty, in uniform, on Federal premises,
or using a Government vehicle. Moreover, the President and Vice-
President of the United States specifically are excluded from the
definition of employee in 5 U.S.C. 7322(1) and, therefore, they are not
subject to the prohibitions on political activity in Reform Amendments
or part 734.
The agency also asked whether a subordinate employee may speak at a
political event in place of his superior, a PAS employee, when the PAS
employee suddenly learns that she cannot attend the event. The
regulations generally permit covered employees to speak at partisan
political events, but prohibit an employee who does not qualify for
coverage under subpart E of the interim regulations from giving such a
speech while on duty.
However, the ultimate answer to such questions depend on the facts
and circumstances in each individual case, and also may involve issues
related to the standards of ethical conduct for employees of the
Executive Branch. Therefore, OPM has determined not to address in its
regulatory examples the issues raised in the agency's comments, because
such examples might be misleading. Individual detailed guidance on such
fact based issues should be sought through an advisory opinion from the
United States Office of Special Counsel and, if warranted, from the
designated agency ethics official at the employee's agency.
Example 2 in Sec. 734.303 states that an employee's name may not
appear on an invitation to a fundraiser as a sponsor or a point of
contact. A Federal employee labor organization commented that this
example appeared to be inconsistent with Example 3 in Sec. 734.208
which permits employees' names to appear on such invitations as guest
speakers. It also commented that a point of contract on an invitation
for a fundraiser would not necessarily be involved with soliciting,
accepting or receiving political contributions in an official manner.
Thus, it suggested amending Example 2 to provide that an employee's
name could appear on an invitation as a point of contact for general
information about a fundraiser.
OPM does not believe that these two examples are inconsistent. A
person who is identified as a point of contact on a fundraising
invitation clearly gives the appearance of being associated with
soliciting, accepting, or receiving political contributions. Such is
not the case with a person who is only identified on the invitation as
a guest speaker. Thus, OPM has decided not to amend Example 2 in
Sec. 734.303.
Example 3 in Sec. 734.303 provides that an employee may not ask a
subordinate to volunteer on behalf of a partisan political campaign.
Section 734.303 describes fundraising activities which are prohibited.
A Federal employee labor organization suggested that OPM remove this
example because individual uncompensated volunteer services are not
political contributions. OPM has addressed the question of requesting
subordinate employees to perform uncompensated volunteer services in
Sec. 734.302, supra.
Section 734.305 prohibits an employee from knowingly soliciting or
discouraging the political participation of anyone who has matters
pending before the employee's employing office or of anyone who is the
subject of investigation or enforcement carried out by the employee's
employing office. A Federal agency commented that the regulations
should address soliciting or discouraging participation in non-partisan
elections. As OPM stated above in response to comments on the
definition of ``political purpose,'' the pertinent legislative history
and the President's remarks on signing the Reform Amendments show that
the Reform Amendments concern participation in partisan political
activities. Consequently, the regulations do not address soliciting or
discouraging participation in non-partisan political activities.
[[Page 35095]]
This same Federal agency further requested that this section
address whether an employee may endorse a candidate for an elective
office, the duties of which require the incumbent of that office to
consistently transact business before the agency. In this instance, it
is impossible to provide an example that would accurately answer this
agency's inquiry because the answers to such questions depend on the
facts and circumstances of each individual case.
This agency also asked whether employees appointed by the President
by and with the advice and consent of the Senate (PAS) are prohibited
from making political speeches in their personal capacity addressing
issues related to agency business. The Reform Amendments and OPM
regulations at part 734 generally do not prohibit a PAS from making a
political speech in her personal capacity, providing that the President
or his designee has not placed further restrictions on her political
activities in accordance with Sec. 734.104, and the speech is not made
to solicit or discourage the political participation of certain persons
described in Sec. 734.305.
Depending on the facts and circumstances associated with the
speech, however, such activity also may be government by provisions
other than the Reform Amendments. Because determinations on whether
this activity is prohibited ultimately rest on the facts and
circumstances of each individual case, employees should consult the
Office of Special Counsel and, if warranted, the designated agency
ethics official for advice.
Section 734.305 requires that each agency or instrumentality of the
United States or District of Columbia Government must determine when
matters are pending and ongoing within the employing office of the
agency or instrumentality. This same Federal agency also commented that
the regulations should provide guidelines for agencies to follow in
determining when a matter is pending or ongoing. Since there are great
differences among agencies or instrumentalities, OPM disagrees with
this comment and believes each agency and instrumentality should make
its own determination.
Section 734.306 prohibits employees covered by subparts B and C
from participating in partisan political activities while they are on
duty, in uniform, in a room or building occupied in the discharge of
official duties by an individual employed or holding office in the
Government of the United States, using a Government-owned or leased
vehicle, or using a privately-owned vehicle in the discharge of
official duties. An individual commented that, if OPM intended through
its interim regulations to prohibit employees from wearing partisan
political buttons while on duty, OPM should add a provision to subpart
C, Prohibited Activities, explicitly stating that employees may not
wear partisan political buttons while on duty. Two Federal agencies
also suggested OPM might do this by adding an example to Sec. 734.036
specifically stating that employees may not wear partisan political
buttons while they are on duty or display partisan political materials
at their work stations. OPM agrees with these suggestions and, through
another example added to Sec. 734.306, has prohibited employees from
wearing partisan political buttons while on duty.
A Federal employee labor organization commented that the interim
regulations permit SES members to wear partisan political buttons while
they are on duty, but prohibit competitive service employees from
wearing partisan political buttons under the same circumstances. The
Reform Amendments' prohibition against partisan political participation
on duty extends to all covered employees except for the two employee
categories described in 5 U.S.C. 7324(b)(2) and covered under subpart E
(Special Provisions for Certain Presidential Appointees and Employees
Paid from the Appropriation for the Executive Office of the President).
All other employees, including SES members, are prohibited from wearing
partisan political buttons on duty.
One Federal agency asked whether the prohibition on employees
wearing political buttons while on duty extends to items worn on duty,
or displayed in the work place, relating to candidates in nonpartisan
elections or to nonpartisan issues. The interim regulations provide
that the prohibition against political participation on duty only
extends to partisan political participation. Thus, the prohibition
against wearing political buttons on duty or displaying political items
in the workplace does not extend to nonpartisan candidates or to
nonpartisan issue-oriented campaigns.
A Federal employee labor organization commented that wearing
political buttons is an expression of speech guaranteed by the
Constitution, as well as an expression of opinion about a political
candidate that clearly is permitted under the Hatch Act and should
continue to be permitted under the Reform Amendments. Citing American
Federation of Government Employees AFL-CIO v. Pierce, 586 F. Supp. 1559
(1984), the labor organization said that the prohibition against
wearing political buttons on duty and the illustrative examples are
overboard, and do not appear to have a specific purpose such as
protecting the efficient performance of official duties or preventing a
conflict, or apparent conflict, of interest.
The legislative history of the Reform Amendments shows Congress was
aware that, under the then-existing provisions of the Hatch Act,
Federal employees were permitted to wear partisan political buttons
while on duty. See 139 Cong. Rec. S8604-S8606 (daily ed. July 13, 1993)
(statement of Senator Glenn). It also shows that Congress clearly
intended to establish a bright-line rule prohibiting all political
participation on duty, and that this rule extends to wearing partisan
political buttons while on duty. S. Rep. No. 57, 103rd Cong. 1 st Sess.
14 (1993), reprinted in 1993 U.S.C.C.A.N. 1082, 1815; 139 Cong. Rec.
S8684 (daily ed. July 14, 1993) (statement of Senator Glenn); id. at
S8765, S8770, S8785-S8786 (daily ed. July 15, 1993) (statement of
Senator Glenn); id. at S8805, 8808 (daily ed. July 15, 1993)
(statements of Senators Boxer and Sarbanes); id. at S8929 (daily ed.
July 20, 1993) (statement of Senator Glenn). See H.R. Rep. No. 16,
103rd Cong. 1st Sess. 16, 19-20 (1993) (to accompany H.R. 20).
The legislative history of the Reform Amendments further shows that
Congress focused on wearing partisan political buttons on duty because
this activity could result in subtle and unspoken coercion when done by
a supervisor, the appearance of a conflict of interest, and the
erroneous identification of the Government as a supporter of particular
partisan candidates, parties, or groups. 139 Cong. Rec. S8604-S8605
(daily ed. July 13, 1993) (statement of Senator Glenn); id. at S8785
(daily ed. July 15, 1993) (statement of Senator Glenn); id. at S8926
(daily ed. July 20, 1993) (statement of Senator Glenn). See H.R. Rep.
No. 16, 103rd Cong. 1st Sess. 16, 19-20 (1993) (to accompany H.R. 20).
Thus, the regulatory prohibition against employees wearing partisan
political buttons while on duty originates with the clear expression of
Congressional intent in enacting these Amendments.
American Federation of Government Employees v. Pierce concerned a
Veterans' Administration regulation prohibiting employees from wearing
political buttons while on duty. The United States District Court for
the District of Columbia struck down the prohibition as overboard,
finding that the prohibition did not protect the
[[Page 35096]]
efficient performance of official duties or prevent a conflict or
apparent conflict of interest.
Current circumstances differ from the circumstances which resulted
in the district court decision. At that time, the Hatch Act prohibited
Federal employees from participating actively in any partisan political
activities, and Federal employees clearly could not be associated with
partisan political candidates, parties, or groups. Now the Reform
Amendments permit most Federal employees to participate actively in
almost all partisan political activities and to become prominently
identified with partisan political candidates, parties, or groups. The
expansion of such opportunities for Federal employees to become
involved in, and identified with, partisan politics, increases the
danger of erroneous perceptions about coercion of Federal employees or
individual citizens having business with the Government, identification
of the Government with specific partisan candidates or groups,
favoritism in administering Government programs, and conflicts of
interest. A prohibition narrowly tailored to displays of partisan
political buttons, pictures, signs, stickers, or badges on duty or in
the workplace clearly promotes the efficient performance of official
duties and prevents a conflict or apparent conflict of interest under
current circumstances.
In a related matter, an individual, a Federal employee
organization, and five Federal agencies commented unfavorably on the
requirement to cover bumper stickers on personal vehicles, particularly
during occasional use for official travel, such as driving the vehicle
to the site of a training course. The labor organization commented that
there was no rational basis for requiring employees to cover bumper
stickers when they use their personal vehicles as incidental
transportation, for example, in lieu of taking a taxi to or from
another agency for a meeting. The labor organization stated that the
requirement was not realistic and suggested that it should apply only
when the private vehicle itself is used in the performance of official
duties, such as delivering mail on a rural route or inspecting crops.
The agencies and individual commented that the requirement to cover
bumper stickers when using a personal vehicle for official business was
excessive, unreasonable, unduly burdensome, and virtually
unenforceable.
OPM agrees that a requirement to cover bumper stickers in every
instance is not practical and would be difficult to enforce where
employees use their private vehicles only occasionally, such as in
driving to a meeting or training course. Imposing this requirement
within the context of such occasional use of private vehicles would
result in inadvertent violations by employees who easily may forget to
cover the bumper stickers on their vehicles, and would be very
difficult to enforce. Therefore, OPM has amended the examples in
Sec. 734.306 to reflect that the requirement to cover bumper stickers
on private vehicles only applies when the vehicle is used for official
business on a recurrent basis, or clearly is identified as being on
official business, and does not apply to the occasional use of such a
vehicle for official business. However, within this context, OPM also
desires to make it clear to covered employees that they are prohibited
from placing partisan political bumper stickers on any Government-owned
or leased vehicle.
OPM accordingly has defined the terms ``recurrent'' and
``occasional'' in Sec. 734.101. These definitions are based on common
usage. The Random House Dictionary of the English Language
(Unabridged), 2d Ed., 1987, defines ``occasional'' as ``occurring or
appearing at irregular or infrequent intervals; occurring now and then;
acting or serving for the occasion or only on particular occasions.''
Webster's Third New International Dictionary of the English Language
(Unabridged), 1966 Ed., defines ``occasional'' as ``occurring or
operating on a particular occasion; proceeding from the occasion; met
with, appearing, or occurring irregularly and accordingly to no fixed
or certain scheme; infrequent.''
The Random House Dictionary defines ``recurrent'' as ``occurring or
appearing again, esp. repeatedly or periodically.'' Webster's
Dictionary defines ``recurrent'' as ``returning from time to time;
appearing or coming periodically; happening again and again.'' Finally,
the Oxford English Dictionary (1933) defines ``recurrent'' as occurring
or coming again (esp. frequently or periodically); reappearing.'' The
regulatory definitions of ``occasional'' and ``recurrent'' incorporate
these concepts.
Example 6 of Sec. 734.306 of the interim regulations concerns
political activities in a commercial building where Government agencies
and instrumentalities lease office space, and where the headquarters of
a candidate for partisan political office also are situated. The
example provides that an employee of the Government agency or
instrumentality may do volunteer work at the candidate's headquarters
when the employee is not on duty.
OPM believes that this example is confusing because it suggests
that employees may participate in political activities only in the
candidate's headquarters, and not elsewhere in the building. Therefore,
OPM has revised the example to clarify that, when employees are not on
duty, the Reform Amendments do not prohibit them from participating in
political activities in the other areas of the building that are not
leased by the Government, including public areas that are shared by all
of the tenants, such as the main lobby. Although the Reform Amendments
would not prohibit employees from political participation in areas that
are shared by all of the tenants, OPM notes that political activities
in these areas may be restricted by the landlord.
For purposes of contrast and further clarification, OPM has
included an additional example specifying that, where a Government
agency or instrumentality leases all of the space in a commercial
building, employees may not participate in political activity in any
area of the building, including the public areas of the leased
building.
OPM believes this distinction is in accord with the February 22,
1995 opinion of the Office of Legal Counsel at the Department of
Justice to the Office of Personnel Management. That opinion stressed
that Congress intended to create a bright-line rule against
participating in partisan political activities while on Federal
premises. To apply this prohibition to all areas of a commercial
building, when the Government has leased only a part of the building,
would undermine the bright-line rule described in the Office of Legal
Counsel opinion. Accordingly, distinguishing between a commercial
building in which the Government has leased part of the space and a
commercial building in which the Government has leased all of the space
accords with the Congressional intent of establishing a bright-line
rule as described in the Office of Legal Counsel opinion.
Example 10 of Sec. 734.306 of the interim regulations provides that
Federal employees may participate in partisan political activities
while they are sitting in the park on their lunch break, if they are
not on duty during their lunch break. A Federal agency suggested that
the regulations specify when Federal employees would not be on duty
during their lunch breaks, and that individual agencies should
determine whether employees are on duty at that time. In general,
employees who are covered by title 5, United States Code, are not in a
pay status during a bona fide lunch break and, therefore, they are not
on duty. However, for the
[[Page 35097]]
purposes of these regulations, an employee still is considered to be on
duty during his lunch hour when he is representing an agency or
instrumentality of the United States in an official capacity during
that time.
Example 1 of Sec. 734.307 prohibits the Federally employed spouses
of candidates for partisan political office from soliciting, accepting,
or receiving contributions of money or personal services. A federal
employee labor organization suggested deleting personal services from
Example 1 because soliciting volunteer services is not prohibited.
Although personal services are different from the uncompensated
volunteer services of an individual, it is clear from the comment that
use of the term ``personal services'' in Example 1 is confusing. To
clarify the example, OPM has deleted the term ``personal services''
from Example 1, and substituted the phrase ``paid or unpaid services of
a business or corporation.''
Subpart D--Employees in Certain Agencies and Positions
Subpart D of the regulations concerns the political activities of
employees in the sensitive agencies and positions that are listed in
Sec. 734.401. Through section 501(k) of Pub. L. 103-359 (October 14,
1994), Congress added the Central Imagery Office to the sensitive
agencies and positions listed in 5 U.S.C. 7323 (b)(2)(B)(i).
Accordingly, OPM has added the Central Imagery Office to the agencies
and positions listed in Sec. 734.401(a) of the regulations.
Section 734.402 of subpart D describes permissible expressions of
individual opinion for these employees. Subsection (b) of Sec. 734.402
provides that they may display partisan political pictures, signs,
stickers, badges, or buttons, as long as these items are displayed off
duty and away from Federal premises in accordance with the provisions
of Sec. 734.408. Two Federal agencies suggested changing the cross-
reference in subsection (b) from Secs. 734.408 to 734.406. Section
734.408 generally prohibits active participation in partisan political
management and partisan political campaigns. Section 734.406 prohibits
political participation while on duty, in uniform, in any room or
building occupied in the discharge of official duties, or using a
Federal vehicle. We agree with the suggestions that a cross-reference
to Sec. 734.406 would be more appropriate, and have changed
Sec. 734.402(b) to reflect this. OPM also has amended Example 5 in
Sec. 734.402 to reflect when it is permissible for an employee who is
covered under subpart D to wear a partisan political button and, for
purposes of clarification, has added another example providing that an
employee may place partisan political signs on his or her private
property.
Section 734.404 describes permissible participation in political
organizations. Subsection (c) provides that employees may attend
political conventions, rallies, fund-raising functions, or other
political gatherings. A Federal agency noted that Example 1 appears to
contradict, rather than to illustrate, this principle by prohibiting
employees from participating in demonstrations or parades while they
are attending a convention or rally. The Federal agency suggested that
OPM should explain further exactly what activities are permissible, or
define what is meant by attending a convention, rally, or other
political gathering.
OPM agrees that Example 1 in Sec. 734.404 should be clarified.
Although employees may attend the conventions and rallies of political
parties or partisan political groups, joining in the parades and
demonstrations held at these functions is considered active
participation in partisan political activity. Therefore, Example 1 in
Sec. 734.404 has been amended to reflect that employees may attend
partisan political conventions or partisan political rallies solely as
spectators, but they may not participate in demonstrations or parades
at these partisan political functions.
Section 734.406 prohibits employees from participating in political
activities while they are on duty, in uniform, in any room or building
occupied in the discharge of official duties, or using a Federal
vehicle.
Another Federal agency asked whether Sec. 734.406 prohibits
displays in the workplace or while on duty of pictures, signs, badges,
or buttons for candidates in non-partisan elections or for ballot
issues not specifically identified with a political party. The interim
regulations provide that the prohibition against political
participation on duty only extends to partisan political participation.
Thus, the prohibition against wearing political buttons on duty or
displaying political items in the workplace does not extend to displays
for candidates in nonpartisan elections or to issues that are not
specifically identified with a political party.
The same Federal agency requested clarification on the restriction
in Sec. 734.406(a)(4) of participating in political activities while
using a privately owned vehicle in the discharge of official duties.
The agency noted that, since political participation includes displays
of partisan political bumper stickers, the restriction could be
interpreted as barring employees from having such bumper stickers on
their private vehicle if the employees use the vehicle for official
travel. The agency further noted that enforcement of such a restriction
would be impractical. We agree with this assessment, and have added
clarifying examples to Sec. 734.406 applying the restriction only to
privately owned vehicles that are used for official business on a
recurrent basis or clearly are identified as being on official
business. The restriction does not apply to the occasional use of such
a vehicle for official business. The terms ``occasional'' and
``recurrent'' are defined in Sec. 734.101.
In a related matter, an individual and two Federal agencies
generally commented in connection with subpart C that, if OPM intended
through its interim regulations to prohibit employees from wearing
partisan political buttons while on duty, OPM should add a provision
explicitly stating that employees may not wear partisan political
buttons while on duty. Two Federal agencies suggested OPM might do this
by adding an example specifically stating that employees may not wear
partisan political buttons while they are on duty or display partisan
political materials at their work stations. OPM believes that these
suggestions are instructive with regard to subpart D. Therefore, OPM
has added to Sec. 734.406 another example which specifies that wearing
partisan political buttons while on duty or displaying partisan
political items in the workplace is prohibited.
An agency commented that Secs. 734.408 and 734.411(a) prohibit the
same behavior, are duplicative and potentially confusing, and should be
combined. Section 734.408 generally prohibits active participation in
political management and campaigns, ``except as permitted by this
part.'' Section 734.411(a) prohibits active participation in managing
the political campaign of a candidate for partisan political or party
office. Section 734.408 covers a broader range of political activities
than Sec. 734.411(a), which prohibits active participation in managing
the political campaign of a candidate for partisan political office or
political party office. Section 734.408 also prohibits activities
described in Secs. 734.409 and 734.410, as well as in the remaining
subsections of Sec. 734.411. Although OPM has not combined
Secs. 734.408 and 734.411(a), OPM believes that the phrase ``except as
permitted by this part'' in Sec. 734.408 is confusing because employees
covered under this section are permitted to
[[Page 35098]]
participate only in the political activities described in subpart D.
Therefore, OPM revised this phrase to include a reference to ``subpart
D'' rather than to ``this part.''
Section 734.412(a) of the interim regulations provides that an
employee covered under subpart D may not be a candidate for partisan
political office except as described in Sec. 734.403 which permits
candidacy in nonpartisan elections. A Federal agency commented that the
exception in Sec. 734.412(a) should be eliminated because it is
meaningless and confusing. OPM agrees with this suggestion; a
nonpartisan election by definition cannot include any candidates for
partisan political office. Therefore, OPM has removed from
Sec. 734.412(a) the reference to Sec. 734.403.
Subpart E--Special Provisions for Certain Presidential Appointees and
Employees Paid From the Appropriation for the Executive Office of the
President
A Federal agency suggested that Sec. 734.502(a)(2)(ii) include
examples of, or a method for determining whether, an employee who is
appointed by the President, by and with the advice and consent of the
Senate, ``determines policies to be pursued by the United States in
relations with foreign powers or in the nationwide administration of
Federal laws.'' OPM cannot devise a precise procedure that would apply
to all positions that might be covered under Sec. 734.502(a)(2)(ii)
because each position has its own unique qualifications and duties. In
view of this, providing examples of covered positions based on
descriptions of their duties and responsibilities would not be of
assistance is deciding whether a position meets the criteria in
Sec. 734.502(a)(2)(ii). Thus, determinations concerning the coverage of
a specific position under Sec. 734.502 must be made on an individual
basis by the President or his appropriate designee.
Section 734.502(d) provides that an employee, to whom subpart E of
part 734 does not apply and who is not on duty, may participate in
political activities in rooms of the White House which are part of the
Residence area or which are not regularly used solely in the discharge
of official duties. In its discussion of the Residence area of the
White House in connection with Sec. 734.101, OPM noted that the same
principles that govern the White House also should apply to the
residence of the Vice President which, historically, has been treated
like the White House. OPM also noted that the same analysis and
conclusions that apply to the White House also apply to the residence
of the Vice President. Therefore, OPM is amending Sec. 734.502(d) to
include the residence of the Vice President.
One Federal agency commented that all Inspectors General, including
those appointed by the heads of designated Federal entities pursuant to
the Inspector General Act of 1978, section 8G, should be prohibited
from taking an active part in political management or political
campaigns. We find no basis for this across-the-board restriction of
all such Inspectors General. Section 3(c) of the Inspector General Act,
which provides that for the purposes of section 7324 of title 5, United
States Code, an Inspector General is not considered to determine
policies to be pursued by the United States in the nationwide
administration of Federal laws, applies only to an Inspector General
who is appointed by the President by and with the advice and consent of
the Senate. Section 8G(c) provides that an Inspector General in a
designated Federal entity is appointed by the head of the designated
Federal entity according to the laws and regulations governing
appointments within that specific designated Federal entity. Therefore,
the treatment Inspectors General, other than those appointed by the
President by and with the advice and consent of the Senate, receive
under the regulations depends on their appointment and the entities in
which they serve.
Use of Official Title, Noncareer Members of the Senior Executive
Service, Use of the Phrase ``in Concert With'' in the Final
Regulations, and Political Signs
Two Federal agencies commented that the treatment of the use of
official title in connection with political activities was not clear.
In response, we have amended Sec. 734.302 to include a prohibition on
the use of official title in connection with any partisan political
activity. However, a form of address, such as ``Honorable'' may be used
on letters, invitations, or when introducing a covered employee at
partisan political functions.
A Federal agency noted that although career Senior Executive
Service (SES) employees are specifically mentioned in Sec. 734.401,
noncareer SES employees are not mentioned in the regulations. Noncareer
SES employees who do not work in the agencies or positions described in
Sec. 734.401 are subject to the provisions of subparts B and C of part
734. OPM has added examples about these noncareer SES employees to the
provisions in subparts B and C to make it clear that they are subject
to the provisions of these subparts. Noncareer SES employees who work
in the agencies or positions described in Sec. 734.401 are subject to
the more restrictive provisions of subpart D of part 734. Examples
regarding noncareer SES employees also have been added to subpart D.
Finally, all career SES employees also are subject to the provisions of
subpart D.
A Federal agency noted that the phrases ``in concert with'' and
``in consultation or coordination with'' both appear in subpart D, and
questioned whether the difference in language signifies any difference
in meaning. Although these phrases were intended to express the same
concept, the use of the two phrases is a source of confusion.
Therefore, OPM has eliminated the phrase ``in consultation or
coordination with'' and exclusively used ``in concert with'' in the
final version of the regulations. OPM relies on the language in
Blaylock v. United States Merit Systems Protection Board, 851 F.2d 1348
(11th Cir. 1988) and Biller v. United States Merit Systems Protection
Board, 863 F.2d 1079 (2d Cir. 1988), which refers to political activity
done ``in concert with'' political parties, partisan groups, or
candidates for public office in partisan elections. See Blaylock v.
United States Merit Systems Protection Board, 851 F.2d at 1354; Biller
v. United States Merit Systems Protection Board, 863 F.2d at 1090-1091.
A Federal agency suggested that an example should be added to the
regulations that clearly permits employees to place partisan political
signs on their property. OPM has added such an example to Sec. 734.205.
In addition, another example in Sec. 734.402 reflects that employees
covered under subpart D also may display partisan political signs on
their property.
Contributions to Political Action Committees Through Voluntary Salary
Allotments
The final regulations also contain new provisions which result from
the issuance, on February 22, 1995, of an opinion by the Office of
Legal Counsel (OLC) at the Department of Justice to the Office of
Personnel Management. The OLC opinion addresses the question of whether
the Reform Amendments prohibit Federal employees from making voluntary
salary allotments to political action committees (PACs). The OLC
initially noted that ``PACs'' are not defined as such under Federal
law. OLC noted further that 26 U.S.C. 9002(9) defined the term
``political committee'' and stated that, for the purposes of its
opinion, ``PAC'' referred only to an organization that came within this
[[Page 35099]]
definition. OPM has incorporated into part 734 the definition of
``PAC'' that OLC used in its opinion. OPM notes that the definition
does not make a distinction between partisan and nonpartisan PACs
because, according to the OLC opinion, donating to a PAC that meets
this definition would be considered political activity within the
meaning of the Reform Amendments.
OLC noted in this regard that political activity includes actions
sufficient to effect the making of a political contribution, such as
taking steps to ensure that part of one's salary is contributed to a
political campaign or a PAC. OLC noted that the OPM interim regulations
on political activity confirmed its view that contributing to political
candidates constitutes political activity within the meaning of the OPM
interim regulations because it is directed toward the success or
failure of a political party, candidate for partisan political office,
or partisan political group. OPM has not revised this definition of
political activity.
Moreover, OLC noted that Congress intended that making
contributions to PACs would be considered political activity under the
terms of the Reform Amendments. It noted that Senator Glenn, the
leading Senate sponsor of the Reform Amendments, referred specifically
to PAC contributions in describing examples of the political activities
that the Reform Amendments would prohibit on duty. See 139 Cong. Rec.
S8929 (daily ed. July 20, 1993). In view of this, OMP believes that it
is not necessary to further refine the OLC definition of PAC. OPM has
added to Sec. 734.101, a definition of the term ``political action
committee'' which tracks the definition of ``political committee'' in
26 U.S.C. 9002(9).
OLC opined that most Federal employees are not barred from using
the salary allotment system to make contributions to PACs. Thus,
Federal employees who are subject to subparts B through D of part 734
are not prohibited from making a voluntary allotment to a PAC.
OLC opined in addition that 5 U.S.C. 7324(a)(1)(4) prohibits
Federal employees from taking steps sufficient to effect the making of
a PAC contribution while they are on duty or in a Federal building.
Thus, employees who are subject to subparts B through D of part 734 are
prohibited from filling out direct-deposit forms for salary allotments
to PACs while they are on duty or in a Federal building, and from
personally delivering such forms to payroll employees who would process
or administer these allotments. OPM has amended Secs. 734,208, 734.306,
734.404, and 734.406 of its regulations to reflect the conclusions
stated on the OLC opinion. OPM also has added to Sec. 734.101, a
definition of the term ``political action committee'' which tracks the
definition of ``political committee'' in 26 U.S.C. 9002(9).
OLC also opined that Federal employees who are identified in 5
U.S.C. 7324(b)(2) may not use the salary allotment system to contribute
money to PACs. Section 7324(b)(2) applies to employees whose duties and
responsibilities ``continue outside normal duty hours and while away
from the normal duty post'' and who are either employees (1) ``paid
from an appropriation for the Executive Office of the President'' or
(2) ``appointed by the President, by and with the advice and consent of
the Senate, whose position(s are) located within the United States in
relations with foreign powers or in the nationwide administration of
Federal laws.'' Such employees are covered under subpart E of OPM's
regulations. OLC opined that in the use of the salary allotment system,
the costs associated with the transfer of contributions to PACs would
be borne by the Federal Government, and 5 U.S.C. 7324(b)(1) of the
Reform Amendments prohibits these employees form engaging in political
activity using ``money derived from the Treasury of the United
States.'' OPM has added to subpart E a new provision that reflects this
prohibition.
Finally, the OLC opinion stressed that 5 U.S.C. 5525, the statutory
provision governing allotment and assignment of pay, as well as the OPM
allotment regulations at 5 CFR 550.311(b), provide that individual
agency heads have the discretion to determine whether eligible
employees of the agency may use the allotment system for particular
purposes, such as making contributions to PACs.
E.O. 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with E.O. 12866.
Regulatory Flexibility Act
I certify that these regulations would not have a significant
economic impact on a substantial number of small entities because they
would apply only to Federal agencies and employees.
List of Subjects in 5 CFR Part 734
Political activities (Government employees).
U.S. Office of Personnel Management.
James B. King,
Director.
Accordingly, the Office of Personnel Management interim rule adding
5 CFR part 734, published at 59 FR 48765 on September 23, 1994, is
adopted as a final rule with the following changes:
PART 734--POLITICAL ACTIVITIES OF FEDERAL EMPLOYEES
1. The authority citation for part 734 continues to read as
follows:
Authority: 5 U.S.C. 1103, 1104, 7325; Reorganization Plan No. 2
of 1978, 92 Stat. 3783, 3 CFR 1978 Comp. p. 323; and E.O. 12107, 3
CFR 1978 Comp. p. 264.
2. In Sec. 734.101 the definitions of accept, and receive, are
revised, and the definitions of occasional, political action committee,
recurrent, and room or building occupied in the discharge of official
duties by an individual employed or holding office in the Government of
the United States or any agency thereof are added in alphabetical
order, to read as follows:
Sec. 734.101 Definitions.
* * * * *
Accept means to come into possession of something from a person
officially on behalf of a candidate, a campaign, a political party, or
a partisan political group, but does not include ministerial activities
which precede or follow this official act.
* * * * *
Occasional means occurring infrequently, at irregular intervals,
and according to no fixed or certain scheme; acting or serving for the
occasion or only on particular occasions.
* * * * *
Political Action Committee means any committee, association, or
organization (whether or not incorporated) which accepts contributions
or makes expenditures for the purpose of influencing, or attempting to
influence, the nomination or election of one or more individuals to
Federal, State, or local elective public office.
* * * * *
Receive means to come into possession of something from a person
officially on behalf of a candidate, a campaign, a political party, or
a partisan political group, but does not include ministerial activities
which precede or follow this official act.
Recurrent means occurring frequently, or periodically on a regular
basis.
Room or building occupied in the discharge of official duties by an
individual employed or holding office in the Government of the United
States or
[[Page 35100]]
any agency thereof includes, but is not limited to:
(1) Any Federally owned space (including, but not limited to,
``public buildings'' as defined in 40 U.S.C. 612(1)) or Federally
leased space in which Federal employees perform official duties on a
regular basis;
(2) Public areas as defined in 40 U.S.C. 490(a)(17) and 41 CFR 101-
20.003 of buildings under the custody and control of the General
Services Administration.
(3) A room or building occupied in the discharge of official duties
by an individual employed or holding office in the Government of the
United States or any agency thereof does not include rooms in the White
House, or in the residence of the Vice President, which are part of the
Residence area or which are not regularly used solely in the discharge
of official duties.
3. In Sec. 734.102 paragraphs (a) introductory text and (b) are
revised to read as follows:
Sec. 734.102 Jurisdiction.
(a) The United States Office of Special Counsel has exclusive
authority to investigate allegations of political activity prohibited
by the Hatch Act Reform Amendments of 1993, as implemented by 5 CFR
part 734, prosecute alleged violations before the United States Merit
Systems Protection Board, and render advisory opinions concerning the
applicability of 5 CFR part 734 to the political activity of Federal
employees and employees of the District of Columbia government. (5
U.S.C. 1212 and 1216. Advice concerning the Hatch Act Reform Amendments
may be requested from the Office of Special Counsel:
* * * * *
(b) The Merit Systems Protection Board has exclusive authority to
determine whether a violation of the Hatch Act Reform Amendments of
1993, as implemented by 5 CFR part 734, has occurred and to impose a
minimum penalty of suspension for 30 days and a maximum penalty of
removal for violation of the political activity restrictions regulated
by this part. (5 U.S.C. 1204 and 7326).
* * * * *
4. In Sec. 734.203, Example 2 is added to read as follows:
Sec. 734.203 Participation in nonpartisan activities.
* * * * *
Example 2: An employee, individually or collectively with other
employees, may petition or provide information to Congress as
provided in 5 U.S.C. 7211.
5. In Sec. 734.204, paragraph (f) is added, and Example 2 is
revised, to read as follows:
Sec. 734.204 Participation in political organizations.
* * * * *
(f) Serve as a delegate, alternate, or proxy to a political party
convention.
* * * * *
Example 2: A noncareer member of the Senior Executive Service,
or other employee covered under this subpart, may serve as a vice-
president of a political action committee, as long as the duties of
the office do not involve personal solicitation, acceptance, or
receipt of political contributions. Ministerial activities which
precede or follow the official acceptance and receipt, such as
handling, disbursing, or accounting for contributions are not
covered under the definitions of accept and receive in Sec. 734.101.
Sections 734.208 and 734.303 describe in detail permitted and
prohibited activities which are related to fundraising.
* * * * *
6. In Sec. 734.205, Examples 8 and 9 are added to read as follows:
Sec. 734.205 Participation in political campaigns.
* * * * *
Example 8: While not on duty, a Federal employee may distribute
campaign leaflets by hand to homes or parked cars even though the
leaflet may contain information concerning where to send
contributions among other factual material about a partisan
political candidate. However, should a member of the public stop the
employee and request further information about contributions, the
employee should refer that request to another campaign worker who is
not a Federal employee.
Example 9: An employee may place in his or her front yard a sign
or banner supporting a partisan political candidate.
7. Sec. 734.208, paragraphs (c) and (d) are added, Examples 12 and
13 are added, and Example 4 is revised, to read as follows:
Sec. 734.208 Participation in fundraising.
* * * * *
(c) Subject to the provisions of Sec. 734.306, an employee may make
a financial contribution to a political action committee through a
voluntary allotment made under Sec. 550.311(b) of this chapter, if the
head of the employee's agency permits agency employees to make such
allotments to political action committees.
(d) An employee who is covered under this subpart and is a payroll
official in an agency where employees are permitted to make allotments
to political action committees may process the completed direct deposit
forms for voluntary allotments which have been made to such committees
under section 550.311(b) of this title.
* * * * *
Example 4: When an employee of the Department of Transportation
is not on duty, he or she may engage in activities which do not
require personal solicitations of contributions, such as organizing
mail or phone solicitations for political contributions. Activities
such as stuffing envelopes with requests for political contributions
also are permitted. However, he or she may not sign the solicitation
letter unless the solicitation is for the contribution of
uncompensated volunteer services of individuals who are not
subordinate employees. An employee may not knowingly send to his or
her subordinate employees a letter soliciting the contribution of
their uncompensated services. However, he or she may sign a letter
that solicits contributions of uncompensated volunteer services as
part of a general mass mailing that might reach a subordinate
employee, as long as the mass mailing is not specifically targeted
to his or her subordinate employees.
* * * * *
Example 12: An employee who desires to make a financial
contribution to a political action committee through a voluntary
allotment personally may obtain blank direct deposit forms from his
or her payroll office. However, he or she may not complete the form
while he or she is on duty, on Federal property, or in a Federally
owned or leased vehicle. Moreover, he or she may not personally
deliver his or her completed form, or the completed form of another
employee, to the payroll office. However, the employee may mail his
or her direct deposit form to his or her agency payroll office.
Example 13: Employees who are permitted to solicit, accept, or
receive political contributions under the circumstances described in
Sec. 734.208(b)(4) may not solicit, accept, or receive such
contributions either while they are on duty, or while they are on
Federal premises, or both.
8. Section 734.302 is revised to read as follows:
Sec. 734.302 Use of official authority; prohibition.
(a) An employee may not use his or her official authority or
influence for the purpose of interfering with or affecting the result
of an election.
(b) Activities prohibited by paragraph (a) of this section include,
but are not limited to:
(1) Using his or her official title while participating in
political activity;
(2) Using his or her authority to coerce any person to participate
in political activity; and
(3) Soliciting, accepting, or receiving uncompensated individual
volunteer services from a subordinate for any political purpose.
Example 1: An employee who signs a letter seeking uncompensated
volunteer services from individuals may not identify himself or
[[Page 35101]]
herself by using his or her official title. However, the employee
may use a general form of address, such as ``The Honorable.''
Example 2: A noncareer member of the Senior Executive Service,
or another employee covered by this subpart, may not ask his or her
subordinate employees to provide uncompensated individual volunteer
services for a political party, partisan political group, or
candidate for partisan political office. Moreover, he or she may not
accept or receive such services from a subordinate employee who
offers to donate them.
Example 3: An employee may not require any person to contribute
to a partisan political campaign in order to win a Federal contract:
9. In Sec. 734.306, Example 3 through 13 are revised and 14 through
19 are added to read as follows:
734.306 Participation in political activities while on duty, in
uniform, in any room or building occupied in the discharge of official
duties, or using a Federal vehicle.
* * * * *
Example 3: An employee who uses his or her privately owned
vehicle on a recurrent basis for official business may place a
partisan political bumper sticker on the vehicle, as long as he or
she covers the bumper sticker while the vehicle is being used for
official duties.
Example 4: An employee who uses his or her privately owned
vehicle on official business, must cover any partisan political
bumper sticker while the vehicle is being used for official duties,
if the vehicle is clearly identified as being on official business.
Example 5: A noncareer member of the Senior Executive Service,
or any other employee covered by this subpart, who uses his or her
privately owned vehicle only on an occasional basis to drive to
another Federal agency for a meeting, or to take a training course,
is not required to cover a partisan political bumper sticker on his
or her vehicle.
Example 6: An employee may not place a partisan political bumper
sticker on any Government owned or Government leased vehicle.
Example 7: An employee may place a bumper sticker on his or her
privately owned vehicle and park his or her vehicle in a parking lot
of an agency or instrumentality of the United States Government or
in a non-Federal facility for which the employee receives a subsidy
from his or her employing agency or instrumentality.
Example 8: When an agency or instrumentality of the United
States Government leases offices in a commercial building and that
building includes the headquarters of a candidate for partisan
political office, an employee of that agency or instrumentality may
do volunteer work, when he or she is not on duty, at the candidate's
headquarters and in other areas of the building that have not been
leased by the Government.
Example 9: A Government agency or instrumentality leases all of
the space in a commercial building; employees may not participate in
political activity in the public areas of the leased building.
Example 10: An employee of the National Aeronautics and Space
Administration (NASA) may not engage in political activities while
wearing a NASA flight patch, NASA twenty-year pin or anything with
an official NASA insignia.
Example 11: If a political event begins while an employee is on
duty and continues into the time when he or she is not on duty, the
employee must wait until he or she is not on duty to attend the
event. Alternatively, an employee may request annual leave to attend
the political event when it begins.
Example 12: Officials of labor organizations who have been given
official time to perform representational duties are on duty.
Example 13: An employee may stuff envelopes for a mailing on
behalf of a candidate for partisan political office while the
employee is sitting in the park during his or her lunch period if he
or she is not considered to be on duty during his or her lunch
period.
Example 14: An employee who works at home may engage in
political activities at home when he or she is not in a pay status
or representing the Government in an official capacity.
Example 15: An employee who is appointed by the President by and
with the advice and consent of the Senate (PAS) may attend a
political event with an non-PAS employee whose official duties do
not require accompanying the PAS as long as the non-PAS employee is
not on duty.
Example 16: A noncareer member of the Senior Executive Service,
or any other employee covered by this subpart, may not wear partisan
political buttons or display partisan political pictures, signs,
stickers, or badges while he or she is on duty or at his or her
place of work.
Example 17: An employee may not engage in political activity in
the cafeteria of a Federal building, even if the cafeteria is in
space leased by a contractor.
Example 18: An employee who contributes financially to a
political action committee through a voluntary allotment made under
Sec. 550.311(b) of this title may not complete the direct deposit
forms while he or she is on duty, in a ``room or building'' defined
in Sec. 734.101 or in a Federally owned or leased vehicle.
Example 19: An employee who contributes financially to a
political action committee through a voluntary allotment may not
personally deliver his or her completed direct deposit form, or the
completed direct deposit form of another employee, to the payroll
employees who would process or administer such forms. However, the
employee may mail his or her direct deposit form to his or her
agency payroll office.
10. In Sec. 734.307, Example 1 is revised to read as follows:
Sec. 734.307 Campaigning for a spouse or family member.
* * * * *
Example 1: An employee who is married to a candidate for
partisan political office may attend a fundraiser for his or her
spouse, stand in the receiving line, sit at the head table, and urge
others to vote for his or her spouse. However, the employee may not
personally solicit, accept, or receive contributions of money or the
paid or unpaid services of a business or corporation, or sell or
collect money for tickets to the fundraiser.
* * * * *
11. In Sec. 734.401, paragraphs (a)(14) through (a)(16) are revised
and paragraph (a)(17) is added to read as follows:
Sec. 734.401 Coverage.
(a) * * *
(14) The Central Imagery Office;
(15) Career Senior Executive Service positions described in 5
U.S.C. 3132(a)(4);
(16) Administrative Law Judge positions described in 5 U.S.C. 5372;
(17) Contract Appeals Board Member positions described in 5 U.S.C.
5372a.
* * * * *
12. In Sec. 734.402, paragraph (b) is revised, Examples 4 and 5 are
redesignated as Examples 5 and 6 respectively, newly redesignated
Examples 5 and 6 are revised, and Example 4 is added, to read as
follows:
Sec. 734.402 Expression of an employee's individual opinion.
* * * * *
(b) Display a political picture, sign, sticker, badge, or button,
as long as these items are displayed in accordance with the provisions
of Sec. 734.406;
* * * * *
Example 4: An employee may place in his or her yard a sign
supporting a candidate for partisan political office.
Example 5: An employee may stand outside of a political party
convention with a homemade sign which states his or her individual
opinion that one of the candidates for nomination is the best
qualified candidate.
Example 6: An employee, including a career SES employee, may
wear a button with a partisan political theme when the employee is
not on duty or at his or her place of work.
13. Section 734.404 is revised to read as follows:
Sec. 734.404 Participation in political organizations.
(a) Each employee covered under this subpart retains the right to:
(1) Participate in the nonpartisan activities of a civic,
community, social, labor, or professional organization, or of a similar
organization;
(2) Be a member of a political party or other partisan political
group and participate in its activities to the extent consistent with
other Federal law;
(3) Attend a political convention, rally, fund-raising function, or
other political gathering; and
[[Page 35102]]
(4) Make a financial contribution to a political party, partisan
political group, or to the campaign committee of a candidate for
partisan political office.
(b) Subject to the provisions in Sec. 734.406, an employee covered
under this subpart may make a financial contribution to a political
action committee through a voluntary allotment made under
Sec. 550.311(b) of this chapter if the head of the employee's agency
permits agency employees to make such allotments to political action
committees.
(c) An employee who is covered under this subpart and is a payroll
official in an agency where employees are permitted to make allotments
to political action committees may process the completed direct deposit
forms for voluntary allotments which have been made to such committees
under Sec. 550.311(b) of this chapter.
Example 1: An employee, or a noncareer SES employee who is
subject to subpart D of part 734, may attend a political convention
or rally solely as a spectator. However, the employee and noncareer
SES employee may not participate in demonstrations or parades which
are sponsored by a political party, a partisan political group, or
an individual who is running for nomination to be a candidate for
partisan political office.
Example 2: An employee may attend a political party's annual
barbecue, but he or she may not organize, distribute invitations to,
or sell tickets to the barbecue.
Example 3: An employee who desires to contribute to a political
action committee through an allotment personally may obtain blank
direct deposit forms from his or her payroll office. The employee
may not complete the direct deposit form while he or she is on duty,
on Federal property, or in a Federally owned or leased vehicle. The
employee also may not personally deliver his or her completed direct
deposit form, or the completed direct deposit form of another
employee, to his or her payroll office. However, the employee may
mail the completed form to his or her agency payroll office.
14. In Sec. 734.406, Examples 1 through 8 are added to read as
follows:
Sec. 734.406 Participation in political activities while on duty, in
uniform, in any room or building occupied in the discharge of official
duties, or using a Federal vehicle; prohibition.
* * * * *
Example 1: An employee who uses his or her privately owned
vehicle on a recurrent basis for official business may place a
bumper sticker on the vehicle, as long as he or she covers the
bumper sticker while the vehicle is being used for official duties.
Example 2: An employee who uses his or her privately owned
vehicle on official business, must cover any partisan political
bumper sticker while the vehicle is being used for official duties,
if the vehicle is clearly identified as being on official business.
Example 3: An employee or career SES employee who uses his or
her privately owned vehicle only on an occasional basis to drive to
another Federal agency for a meeting, or to take a training course,
if not required to cover a partisan political bumper sticker on his
or her vehicle.
Example 4: An employee may not place a partisan political bumper
sticker on any Government owned or Government leased vehicle.
Example 5: An employee may place a bumper sticker on his or her
privately owned vehicle and park the vehicle in a parking lot of an
agency or instrumentality of the United States Government or in a
non-Federal facility for which the employee receives a subsidy from
his or her employing agency or instrumentality.
Example 6: An employee, or noncareer SES employee who is subject
to subpart D of this part 734, may not wear partisan political
buttons or display partisan political pictures, signs, stickers, or
badges while he or she is on duty or at his or her place of work.
Example 7: An employee who contributes financially to a
political action committee through a voluntary allotment made under
Sec. 550.311(b) of this title may not complete the direct deposit
forms while he or she is on duty, in a ``room or building'' defined
in Sec. 734.101, or in a Federally owned or leased vehicle.
Example 8: An employee who contributes financially to a
political action committee may not personally deliver his or her
completed direct deposit form, or the completed direct deposit form
of another employee, to the payroll employees who would process or
administer such forms. However, the employee may mail his or her
direct deposit form to his or her agency payroll office.
15. Section 734.408 is revised to read as follows:
Sec. 734.408 Participation in political management and political
campaigning; prohibitions.
An employee covered under this subpart may not take an active part
in political management or in a political campaign, except as permitted
by subpart D of this part.
16. In Sec. 734.412, paragraphs (a), (b), and (c) are revised to
read as follows:
Sec. 734.412 Participation in elections; prohibitions.
(a) Be a candidate for partisan political office;
(b) Act as recorder, watcher, challenger, or similar officer at
polling places in concert with a political party, partisan political
group, or a candidate for partisan political office;
(c) Drive voters to polling places in concert with a political
party, partisan political group, or a candidate for partisan political
office;
17. In Sec. 734.502 paragraph (d) is revised to read as follows:
Sec. 734.502 Participation in political activity while on duty, in
uniform, in any room or building occupied in the discharge of official
duties, or using a Federal vehicle.
* * * * *
(d) An employee, to whom subpart E of this part does not apply, who
is not on duty may participate in political activities in rooms of the
White House or the Residence of the Vice President which are part of
the Residence area or which are not regularly used solely in the
discharge of official duties.
* * * * *
18. Section 734.504 is added to read as follows:
* * * * *
Sec. 734.504 Contributions to political action committees through
voluntary payroll allotments prohibited.
An employee described in Sec. 734.502(a) may not financially
contribute to a political action committee through a voluntary
allotment made under Sec. 550.311(b) of this title.
[FR Doc. 96-17006 Filed 7-3-96; 8:45 am]
BILLING CODE 6325-01-M
