2011-21392. Political Activity-Federal Employees Residing In Designated Localities

AGENCY:

Office of Personnel Management.

ACTION:

Proposed rule.

SUMMARY:

OPM proposes to amend its regulations at 5 CFR part 733 by granting Federal employees residing in King George County, Virginia, a partial exemption from the political activity restrictions specified in 5 U.S.C. 7323(a)(2) and (3), and adding King George County to its regulatory list of designated localities in 5 CFR 733.107(c). The proposed amendment reflects OPM's determination that King George County meets the criteria in 5 U.S.C. 7325 and 5 CFR 733.107(a) for a partial exemption to issue.

DATES:

Written comments must be received on or before October 21, 2011.

ADDRESSES:

Comments may be mailed to Elaine Kaplan, General Counsel, Room 7355, United States Office of Personnel Management, 1900 E Street, NW., Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT:

Jo-Ann Chabot, Office of the General Counsel, United States Office of Personnel Management, [phone].

SUPPLEMENTARY INFORMATION:

The Hatch Act, at 5 U.S.C. 7321-7326, governs the political activity of Federal employees, and individuals employed with the United States Postal Service and the Government of the District of Columbia. Section 7323(a) generally permits Federal employees who are not employed in the Federal agencies or positions described in section 7323(b), as amended, to take an active part in partisan political campaigns. Employees employed in the Federal agencies or positions specified in 5 U.S.C. 7323(b), as amended, generally may participate in nonpartisan political activities. According to 5 U.S.C. 7323(a)(2) and (3), Federal employees may not become candidates for partisan political office and may not solicit, accept, or receive political contributions. Section 7325, however, authorizes OPM to prescribe regulations exempting Federal employees from the prohibitions in section 7323(a)(2) and (3) to the extent OPM considers it to be in their domestic interest.

Under the authority of 5 U.S.C. 7325, OPM may issue such regulatory exemptions when two conditions exist in the municipality or political subdivision. One condition is met if the municipality or political subdivision is in Maryland or Virginia and is in the immediate vicinity of the District of Columbia, or if the majority of voters in the municipality are employed by the Government of the United States. The second condition is met if OPM determines that, because of special or unusual circumstances, the domestic interest of the employees is served by permitting their political participation in accordance with regulations prescribed by OPM.

In regulations at 5 CFR 733.107(c) OPM has designated municipalities and political subdivisions where Federal employees may participate in local elections. At 5 CFR 733.103-733.106, OPM has established limitations on political participation by most Federal employees residing in these designated municipalities and subdivisions. Under 5 CFR 733.103, most Federal employees who reside in a municipality or political subdivision designated by OPM may:

(1) Run as independent candidates for election to partisan political office in elections for local office in the municipality or political subdivision;

(2) Solicit, accept, or receive a political contribution as, or on behalf of, an independent candidate for partisan political office in elections for local office in the municipality or political subdivision;

(3) Accept or receive a political contribution on behalf of an individual who is a candidate for local partisan political office and who represents a political party;

(4) Solicit, accept, or receive uncompensated volunteer services as an independent candidate, or on behalf of an independent candidate, for local partisan political office, in connection with the local elections of the municipality or subdivision; and

(5) Solicit, accept, or receive uncompensated volunteer services on behalf of an individual who is a candidate for local partisan political office and who represents a political party.

Under 5 CFR 733.104, however, these employees may not:

(1) Run as the representative of a political party for local partisan political office;

(2) Solicit a political contribution on behalf of an individual who is a candidate for local partisan political office and who represents a political party;

(3) Knowingly solicit a political contribution from any Federal employee, except as permitted under 5 U.S.C. 7323(a)(2)(A)-(C).

(4) Accept or receive a political contribution from a subordinate;

(5) Solicit, accept, or receive uncompensated volunteer services from a subordinate for any political purpose;

(6) Participate in political activities:

○ While they are on duty:

○ While they are wearing a uniform, badge, or insignia that identifies the employing agency or instrumentality or the position of the employee;

○ While they are in any 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; or

○ While using a Government-owned or leased vehicle or while using a privately owned vehicle in the discharge of official duties.

Moreover, candidacy for, and service in, a partisan political office shall not result in neglect of, or interference with, the performance of the duties of the employee or create a conflict, or apparent conflict, of interest.

Sections 733.103 and 733.104 of Title 5, Code of Federal Regulations, do not apply to individuals, such as career senior executives and employees of the Federal Bureau of Investigation, who are employed in the agencies or positions listed in 5 CFR 733.105(a). These individuals are subject to the more stringent limitations described in 5 CFR 733.105 and 733.106.

Individuals who require advice concerning specific political activities, and whether an activity is permitted or prohibited under 5 CFR 733.103-733.106, should contact the United States Office of Special Counsel at [phone] or [phone]. Requests for Hatch Act advisory opinions may be made by e-mail to: [e-mail].

In response to requests from a Federal employee who resides in King George County, Virginia, OPM proposes to designate that county as one in which Federal employees may run for local partisan political office, subject to the limitations established by OPM, and accept or receive political contributions in connection with elections for local public office. This proposal reflects OPM's determination that special or unusual circumstances exist so that it is in the domestic interest of Federal employees residing in King George County to participate in these political activities. This determination is based on written material provided by the applicant, interviews with the applicant, and documentary material obtained through independent research. Principal factors leading to OPM's determination are the proximity of King George County to the District of Columbia, the rapid growth of the county within the past few years, significant public issues associated with this growth, and a significant Federal presence within King George County.

A copy of this notice will be published in two local newspapers serving King George County.

If this proposed rule is adopted, OPM will amend 5 CFR 733.107(c) by adding King George County to the list of designated Virginia municipalities and political subdivisions in which Federal Government employees may participate in elections for local partisan political office in accordance with the conditions specified in 5 CFR 733.103-733.106. The addition of King George County will be listed after Herndon, Virginia, and before Loudoun County, Virginia.

E.O. 12291, Federal Regulation

I have determined that this is not a major rule as defined under section 1(b) of E.O. 12291, Federal Regulation.

Regulatory Flexibility Act

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the changes will affect only employees of the Federal Government.

List of Subjects in 5 CFR Part 733

• Political activity—Federal employees residing in designated localities

U.S. Office of Personnel Management.

John Berry,

Director.

Accordingly, the Office of Personnel Management proposes to amend 5 CFR part 733 as follows:

PART 733—POLITICAL ACTIVITY—FEDERAL EMPLOYEES RESIDING IN DESIGNATED LOCALITIES

1. The authority citation for part 733 continues to read as follows:

Authority: 5 U.S.C. 7325; sec. 308 of Pub. L. 104-93, 109 Stat. 961, 966 (Jan. 6, 1996).

2. Section 733.107(c) is amended by adding King George County, Virginia, alphabetically to the list of designated Virginia municipalities and political subdivisions as set forth below.

§ 733.107

Designated localities.

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(c)

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In Virginia

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King George County

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