[Federal Register Volume 59, Number 184 (Friday, September 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-23395]
Federal Register / Vol. 59, No. 184 / Friday, September 23, 1994 /
[[Page Unknown]]
[Federal Register: September 23, 1994]
VOL. 59, NO. 184
Friday, September 23, 1994
OFFICE OF PERSONNEL MANAGEMENT
RIN 3206-AG07
5 CFR Part 734
Political Activities of Federal Employees
AGENCY: Office of Personnel Management.
ACTION: Interim regulations with request for comments.
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SUMMARY: The Office of Personnel Management (OPM) is issuing interim
regulations regarding the political activities of Federal employees. On
October 6, 1993, the President signed the Hatch Act Reform Amendments
of 1993. The Amendments became effective on February 3, 1994, and OPM
has the authority to issue regulations under the Amendments. The
interim regulations will inform Federal employees of the political
activities which generally are permitted and prohibited under the
Amendments. Federal employees also should refer to OPM's interim
regulations at part 733, published in the Federal Register in the
February 22, 1994 edition, regarding permitted and prohibited political
activities connected with local elections in the designated
communities.
DATES: Effective Date: September 23, 1994.
Comments must be received on or before November 22, 1994.
ADDRESSES: Comments may be sent or delivered to Lorraine Lewis, General
Counsel, Room 7355, United States Office of Personnel Management, 1900
E Street NW., Washington, DC 20415.
FOR FURTHER INFORMATION CONTACT: Jo-Ann Chabot or Karen D. Kline at
(202) 606-1700.
SUPPLEMENTARY INFORMATION: Pursuant to section 553(b)(3) of title 5,
United States Code, the Director finds that good cause exits for
waiving the general notice of proposed rulemaking. The notice is being
waived because, in view of the statutory penalties which result from
violations of the Amendments' prohibitions, it is crucial for employees
who are covered under the Amendments to know about the political
activities which the Amendments permit and prohibit.
While these regulations were being written, OPM received several
suggestions from individuals, several Federal labor organizations, and
many Federal agencies on issues that might be addressed through the
regulations. Many of the comments and suggestions concerned similar or
identical issues, and these issues have been addressed in the
regulations. Issues which could not be addressed in the regulations are
discussed in this summary.
Part 734 is divided into several subparts for purposes of clarity.
Subpart A--General Provisions includes definitions as well as
jurisdictional and reporting provisions.
Section 734.101 in subpart A defines the terms which are most
frequently used in OPM's political activity regulations. The
definitions of employee and partisan political office in Sec. 734.101
track the statutory definitions of these terms.
The Amendments indirectly define the terms ``Federal labor
organization'' and ``multicandidate political committee'' by referring
to other statutory provisions which provide a detailed definition of
these terms. Section 734.101 similarly defines these terms by
incorporating the statutory references cited in the Amendments. Because
of the complex structural organizations of the various agencies and
instrumentalities of the United States and District of Columbia
Government it would be difficult to adopt a comprehensive definition of
``employing office.'' Therefore, Sec. 734.101 specifies that the head
of each agency or instrumentality shall determine the appropriate
employing offices within it and provide notice to employees through
internal agency notice procedures. Identification of such employing
offices is distinct from, and need not coincide with, those established
for any other purpose.
The definition of ``Federal employee organization'' is in
conformance with the definition of ``Federal employee organization'' in
Executive Order 10988, January 17, 1962 which was revoked by Executive
Order 11491 and reflects that this term refers to nonprofit
associations or organizations which are composed of Federal employees.
The Amendments specifically tie the concept of Federal labor
organization to the definition of labor organization in 5 U.S.C.
7103(a)(4). Because employees of the District of Columbia are not
Federal employees, and their labor organizations are not covered under
5 U.S.C. Chapter 71, the definitions of the terms ``Federal labor
organizations'' and ``Federal employee organization'' do not include
such organizations comprised of employees of the District of Columbia.
Several Federal labor organizations and one agency raised the issue
of what constitutes a ``political contribution'' commenting that the
Amendments not only allow Federal employees to volunteer their services
to campaigns, but also allow Federal employees to direct and solicit
other volunteers. In their view, this comports with the fundamental
purpose of the Amendments. These commentators felt that volunteer
services under the Amendments should be treated the same as under
Federal election law--i.e., they are not considered ``political
contributions.'' In a letter dated September 7, 1994, Senator John
Glenn and Representative William L. Clay, the Chairmen of the
respective committees of jurisdiction, opined that ``as the sponsors
and managers of this legislation in the House and Senate, [we] never
intended that routine campaign volunteer activities should be treated
as political contributions.''
Clearly this is an issue that goes to the heart of the Amendments.
The explicit purpose of the Amendments is to ``provide for Federal
civilian employees to participate voluntarily, as private citizens, in
the political processes of the Nation and to protect such employees and
the General citizenry from improper political solicitations.'' S. Rep.
No. 57, 103 Cong., 1st Sess., at 1 (1993). In particular, the
Amendments allow a Federal employee to manage a campaign. The issue
raised by these commentators is whether the allowable political
activities encompass Federal employees directing and soliciting
volunteer services. The commentators argue that to conclude in the
negative would be contrary to the purpose of the Amendments. One
commentator noted, ``[I]nterpreting the term `personal services' to
include the activities of these sorts of campaign volunteers would
seriously undermine Congressional intent to allow Federal employees
greater freedom to participate in the political process. In fact, that
interpretation could entirely negate certain rights the Act explicitly
grants. Thus, for example, the Act generally authorized Federal
employees to `take an active part in political management or in
political campaigns.' An individual could not, as a practical matter,
manage a campaign if he or she were precluded from soliciting,
accepting, or even receiving, the help of volunteers.'' Another
commentator stated that prohibiting solicitation of volunteer services
``not only thwarts the intent of Hatch Act Reform, it would clearly
render (the Act) internally inconsistent.'' Finally, Chairmen Glenn and
Clay provided, ``It was, and remains, our intention that the term
`political contribution' be defined in a manner that does not render
meaningless the language of the Act intended to protect the ability of
Federal employees to take an active part in political management or in
political campaigns.''
In light of the absence of a conference report, the interpretation
espoused by Chairmen Glenn and Clay is logical and deserving of
deference. In order to implement the intent of the Amendments to allow
Federal employees to participate actively in political management and
campaigns, the definition of ``political contribution'' in Sec. 734.101
tracks the statutory definition of this term, with one significant
addition. The regulations specify that individualized uncompensated
volunteer services are not a ``thing of value'' and are excluded from
the definition of ``political contribution.'' This exclusion of
individualized uncompensated volunteer services from the definition of
``political contribution'' directly parallels the definition of
``contribution'' found in the Federal Election Campaign Act. 2 U.S.C.
431.
Under this definition, the ``personal services'' which are included
in the definition of ``political contribution'' are those paid or
unpaid services of a business or corporation. The Amendments'
distinction of individualized uncompensated volunteer services from
services provided by a business or corporation, thus, mirrors the
distinction contained in the Federal Election Campaign law.
By excluding individualized volunteer services from the definition
of ``political contribution,'' the regulations allow Federal employees
to solicit, accept, and receive individualized volunteer services as
well as direct or supervise those volunteers. This definition allows
the Amendments' inclusion of personal services, paid or unpaid, to be
read in the context of the explicitly permissible activities.
Although Federal employees are allowed to solicit, accept, and
receive individualized uncompensated volunteer services, the
regulations prohibit Federal employees from soliciting, accepting, or
receiving such services from subordinates. Further solicitation,
acceptance, or receipt of such services must comply with the Standards
of Ethical Conduct for Employees of the Executive Branch in 5 CFR part
2635, as well as any other directives that may apply, e.g., the Federal
Property Management Regulations in 41 CFR chapter 101.
In connection with political contributions, section 734.101 also
defines the terms ``accept'' and ``receive.'' These definitions cover
only the acts of accepting or receiving something from a person
officially on behalf of a candidate, campaign, a political party, or a
partisan political group. 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.'' The Amendments specifically
prohibit covered employees from ``knowingly'' soliciting political
contributions. Thus, Sec. 734.101 of the interim regulations also
defines ``solicit'' as expressly requesting of another person that he
or she contribute something to a candidate, a campaign, a political
party, or partisan political group.
Section 734.101 defines the term ``on duty'' because the concept is
central to the political activity prohibition for most employees. The
definition provides that an employee is on duty when in a pay status
(i.e., when receiving pay for hours of duty) or when representing the
United States Government or District of Columbia Government in an
official capacity. The definition provides that for the purposes of
this part, an employee is not considered to be in a pay status when in
a paid leave status, using compensatory time off, using credit hours
earned in an alternative work schedule, using time off granted as an
incentive award, or excused absence because the employee is free to
spend the time off as he or she chooses. Similarly, an employee
receiving premium pay for standby duty is considered to be in a pay
status for those hours, while an employee in an unpaid, on-call status
is not in a pay status. Further, when an employee performs work that is
recognized as overtime work under title 5 of the United States Code,
the Fair Labor Standards Act, or similar statute, the employee is
considered to be in a pay status, even if under some circumstances the
employee is prevented from receiving pay or compensatory time off for
that work (e.g., due to the biweekly pay limitation under 5 U.S.C.
5547).
The definition provides a second criterion in order to accommodate
those employees who are not in a leave system. For purposes of this
part, employees who are not covered by a leave system are considered to
be on duty when they are representing the United States Government or
District of Columbia Government in an official capacity.
Several parties have inquired as to whether an employee is on duty
when in a leave without pay status. Since an employee is not in a pay
status on leave without pay, he or she is not on duty. Other parties
have asked about retention of life, health, and retirement benefits on
leave without pay. OPM regulations concerning leave, pay, and
retirement govern these issues.
One agency asked about the possibility of granting excused absence
(currently described in subchapter 11 of Federal Personnel Manual
Chapter 630 and colloquially referred to as ``administrative leave'')
for purposes of engaging in political activities or political
management. OPM believes that an agency's granting such excused absence
for the purposes of engaging in political activities or political
management is not appropriate.
Section 734.102(a) reflects that the United States Office of
Special Counsel is authorized to investigate and prosecute alleged
violations of the Amendments, and issue advisory opinions regarding
permitted and prohibited political activities. It also provides the
address and telephone numbers of that Federal agency for employees who
seek advisory opinions. Section 734.102(b) reflects that the United
States Merit Systems Protection Board determines when a violation of
the Amendments has occurred, and describes the penalties for a
violation. Section 734.102(c) reflects that the Office of Personnel
Management is authorized to issue regulations concerning the political
activities which the Amendments permit and prohibit. The authority of
OPM to issue such regulations was affirmed by the Office of Legal
Counsel of the Department of Justice on February 3, 1994.
Section 734.103 provides the criteria that multicandidate political
committees must meet to be recognized as a multicandidate political
committee of a Federal labor organization or Federal employee
organization. One party suggested that OPM include in its regulations a
list of allowable multicandiate political committees. OPM has not
included a list of such committees in its interim regulations, but will
consider publishing a list as a notice in the Federal Register at a
later date.
Section 734.104 provides that employees covered under these
regulations may not be further restricted except those employees who
serve at the pleasure of the President of the United States.This
provision is based upon an opinion of the Office of Legal Counsel of
the Department of Justice. In an opinion dated September 20, 1994, the
Office of Legal Counsel stated that ``an Administration may impose
additional restrictions on its political appointees.'' With regard to
an Administration's political appointments in the civil service, the
Office opined:
It would be inconsistent with the character of such appointments
if the appointees were free to disregard or contradict the political
positions of the Administration; we would not assume that Congress
intended to make such a fundamental change in the nature of
political appointments without having addressed the issues that
would be raised by so significant an alteration. Indeed, if the
amendments to the Hatch Act were interpreted to prevent an
Administration from directing the political activities of even its
high-level political appointees, the amendments would raise serious
constitutional questions. In particular, we believe that any attempt
by Congress to block political control over those appointed by the
President with the advice and consent of the Senate would be highly
dubious from a constitutional standpoint. The amendments should be
interpreted in a manner that avoids these serious constitutional
issues. Accordingly, we believe that the Office of Personnel
Management's regulations may permit the further restriction of
political activities by employees appointed by the President with
the advice and consent of the Senate, employees 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 serving at the pleasure of the President. We
understand that one context in which these questions may arise would
be the desire of some agencies to require high-level appointees to
refrain from partisan political activity. We express no view, of
course, about whether further regulation of employees in all of
these categories would be appropriate as a policy matter.
In light of this binding opinion, the regulations permit the
further proscription and restriction of 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. As a policy matter, it is left to the
President of the United States, or any official specifically authorized
by him, to decide whether such further proscriptions and restrictions
are appropriate.
Subpart B describes the political activities which are permitted
for most covered employees under the Amendments, subject to the
condition that political participation does not occur while an employee
is on duty, in uniform, 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 using a vehicle owned
or leased by the Government of the United States. Section 734.201, the
first provision in subpart B, specifically excludes employees in
certain agencies and positions who may not participate actively in
partisan political activities and are covered under subpart D of the
interim regulations. Permitted activities are grouped by category, with
one section for each category, for ease of reference. Thus,
Sec. 734.204 of the interim regulations concerns the permissible
activities that are connected with participation in political
organizations, Sec. 734.205 includes the activities that are connected
with political campaigns, and Sec. 734.207 describes the only two
instances where a Federal employee may run as a candidate for public
office. A candidate who is running for public office in a nonpartisan
election, or a Federal employee who is working on behalf of such a
candidate, is not barred by the Amendments from soliciting political
contributions for that candidate's campaign; however, such solicitation
must comply with the Standards of Ethical Conduct for Employees of the
Executive Branch in 5 CFR part 2635, as well as any other directives
that may apply, e.g., the Federal Property Management Regulations in 41
CFR chapter 101.
Section 734.208 concerns participation in fundraising and permits
employees who are covered under subparts B and C to make political
contributions, attend political fundraisers, and solicit, accept, or
receive political contributions from other employees who are members of
the same Federal labor or employee organization. It does not extend to
employees who are in the bargaining unit but are not members of the
labor organization.
Examples are provided at the end of most of the regulatory sections
in subpart B. The examples apply the regulations to specific situations
which are controlled by, but not directly addressed in, the
regulations. An example which refers to a specific Federal agency is
not limited to the employees of that agency, but applies to all
employees who are covered under subpart B.
Subpart C describes the political activities which are prohibited
for most employees who are covered under the Amendments. Section
734.301 specifically excludes employees in certain positions and
agencies from coverage under subpart C because they are subject to the
prohibitions described in subpart D of the interim regulations. Subpart
C is similar in structure to subpart B with the prohibited activities
grouped by category, one section for each category, and examples
describing specific situations.
Section 734.303 prohibits employees who are covered under subpart C
from knowingly soliciting, accepting, or receiving political
contributions. It also specifically links the prohibition to personal
identification with fundraising activities because employees otherwise
would be prohibited from a wide range of political activities, such as
anonymously stuffing envelopes with campaign literature (which includes
an appeal for political contributions) or giving a keynote speech at a
fundraiser, that otherwise would be permitted. These activities do not
present an employee with any opportunity to coerce other employees to
make a political contribution or to become personally identified with
any fundraising efforts and, therefore, should be permitted.
Participation in phone bank solicitations is prohibited when political
contributions are requested because it is a personal appeal for
political contributions, even if it is done anonymously. However, if
the phone bank solicitation involves only solicitation of
individualized uncompensated volunteer services, then an employee is
permitted to participate.
In this connection, OPM received a suggestion that its regulations
should prohibit well-known employees from speaking at fundraisers under
any circumstances, while other employees should be permitted to make
such speeches as long as their speeches did not include a solicitation
for political contributions. Because the Amendments do not provide a
statutory basis for a distinction between well-known and unknown
employees, OPM has not included it in the interim regulations.
Employees may speak at fundraisers regardless of whether they are well
known or not.
Section 734.304 of subpart C prohibits employees from running for
the nomination or as a candidate for partisan political office, except
as specified in Sec. 734.207. A party suggested that OPM's regulations
describe the initial act which begins the nomination process for
partisan political office. Because nomination procedures are different
in Federal and State elections, and may vary from State to State, it
would be virtually impossible to describe all of them in OPM's
regulations. Therefore, identification of the first step of the
nomination process must be done on a case by case basis.
In connection with Sec. 734.304, a party wanted to know if there is
any difference between the Hatch Act's prohibition on becoming a
candidate for public office in a partisan election and the Amendments'
prohibition on candidacy for partisan political office. The statutory
definitions for these terms are virtually identical. Therefore, OPM
believes that both terms prohibit the same activities.
Section 734.306 in subpart C prohibits covered employees from
participation in political activities while they are on duty, in
uniform, driving a federally owned or leased vehicle, or in a room or
building occupied by Federal employees who are performing their
official duties. The prohibition is directly stated in the Amendments.
Subsection (b) of Sec. 734.306 specifies that certain Presidential
appointees and employees paid from the appropriation for the Executive
Office of the President are excluded from the prohibition on political
participation under these circumstances, and reflects the specific
exclusion for these employees which appears in the Amendments. However,
the regulations also specify that the political activity of these
employees may be further proscribed or restricted.
The prohibition on political participation while on duty or in
uniform extends to employees of the Government of the District of
Columbia. However, the Amendments and OPM's interim regulations do not
prohibit employees of the District of Columbia from political
participation, when they are off-duty and out of uniform, in buildings
occupied in the discharge of official duties by an individual employed
or holding office in the Government of the District of Columbia, or
while using vehicles owned or leased by the District of Columbia.
Section 734.307 in subpart C reminds employees who also are spouses
or family members of candidates for public office or political party
office that they are subject to the same prohibitions as other
employees who are covered under subpart C.
Several examples of specific activities have been included to give
these employees a concrete idea of the boundaries of the permitted and
prohibited activities for employees in these circumstances.
Although the Amendments allow most employees to participate
actively in partisan political activities, they prohibit employees in
specified positions and agencies from such active participation.
Subpart D of the regulations applies to these employees who are subject
to the more restrictive prohibition. The regulatory list of the
agencies and positions identified in Sec. 734.401(a) was taken directly
from the Amendments. This list includes career members of the Senior
Executive Service (SES) in all agencies, as well as noncareer members
of the SES who work in the agencies or offices listed in
Sec. 734.401(a). A party suggested that OPM include in its list of
employees covered under subpart D other employees who are not SES
members, but who are appointed to positions in equivalent executive
systems. Section 734.401(a) does not include employees in equivalent
executive systems because the Amendments do not include them in their
list of employees who still are subject to the prohibition on active
partisan political participation. Therefore, unless they are employed
in an agency or office listed in Sec. 734.401(a), employees in
equivalent executive systems are not covered under subpart D; they are
covered under subparts B and C. It is OPM's position that, unless an
employee is employed in an agency, office, or position listed in
Sec. 734.401(a), the employee is covered under subparts B and C of part
734; the heads of agencies or instrumentalities may not impose further
restrictions upon employees covered under subparts B and C. There is
only one circumstance where further proscription or restriction may be
imposed--when the employee involved is appointed by the President with
the advice and consent of the Senate, appointed by the President, a
non-career Senior Executive Service member, a Schedule C employee, or
any other employee who serves at the pleasure of the President.
Section 734.401(b) excludes from coverage under subpart D employees
appointed by the President, by and with the advice and consent of the
Senate. This exclusion is specifically provided for in the Amendments.
Subpart D is similar in structure to subparts A and B in grouping
permitted and prohibited activities by category, with one section for
each category, and examples describing specific situations.
Sections 734.402 through 734.404 describe activities which are
permitted for employees covered under subpart D. Sections 734.403 and
734.404 include among these activities running for elective office in a
nonpartisan election, and participating in the nonpartisan activities
of a civil, community, social, labor, or professional organization.
Section 734.405 specifically addresses the extent to which an
employee who is covered under subpart D, and whose spouse or other
family member runs for partisan office, may be involved in the
candidate's campaign. It provides that such an employee may be included
in photographs of the candidate's family which might appear in a
political advertisement, broadcast, campaign literature, or similar
material. Section 734.405 also reflects that an employee who is covered
under subpart D may attend political functions and appear in television
broadcasts with a spouse or family member who is a partisan candidate,
but may not campaign actively for the candidate. It specifically is
designed to resolve questions concerning employee participation in the
campaigns of their spouses or family members who are partisan
candidates for office.
The prohibition on political activity which appears in the
Amendments and applies to employees covered under subpart D tracks the
Hatch Act's prohibition on participating actively in partisan political
activities. Accordingly, a party wanted to know whether OPM had
abolished its Hatch Act regulations. The interim regulations which OPM
published in the Federal Register on February 4, 1994 were intended as
a revision of 5 CFR part 733 and, therefore, superseded the Hatch Act
regulations. However, most of the permitted and prohibited activities
described in the Hatch Act regulations appear in subpart D of the
interim regulations at part 734, although they also reflect the most
recent judicial interpretations of the Hatch Act's prohibition 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).
These cases involved three employees, each a national president of
a public employee union, who wrote and published articles in their
respective union newsletters criticizing the incumbent President of the
United States and supporting the candidacy of his opponent. The courts
in both cases concluded that the Hatch Act prohibited participation in
``partisan'' political activities, and permitted public and private
expressions of individual opinion. The courts also concluded that, to
be considered ``partisan'' and in violation of the Hatch Act, the
activity or expression must be done in concert with a political party,
partisan political organization, or candidate for public office in a
partisan election. They ruled that these officials did not violate the
Hatch Act because their articles were expressions of individual opinion
and not connected with a political party, partisan political group, or
candidate for public office in a partisan election.
According to these decisions, the Hatch Act permitted employees to
express their individual opinions on political subjects and candidates,
publicly and privately, orally or in writing, as long as the expression
of opinion was not done in concert with a political party, partisan
political group, or candidate for public office in a partisan election.
The descriptions of prohibited activity in Secs. 734.410(d), 734.412
(c) and (d), and 734.413 (b) and (c) reflect these decisions.
The Amendments, with two exceptions, prohibit all covered employees
from participating in political activities while on duty, in uniform,
in a room or building occupied by Federal employees who are performing
their official duties, or driving a Federally owned or leased vehicle.
This prohibition is reflected in Sec. 734.407 and, through the examples
in subpart D, covers an employee's wearing a button with a partisan
political theme while he or she is on duty.
Finally, Sec. 734.414 specifically prohibits employees of the
Federal Election Commission from requesting or receiving political
contributions from, or giving such contributions to, other employees,
Members of Congress, or officers of the uniformed services. This
section of the interim regulations reflects the prohibition which
appears in the Amendments.
Subpart E applies to certain employees who are paid from the
appropriation for the Executive Office of the President. It also
applies to an employee who is appointed by the President by and with
the advice and consent of the Senate, whose position is located within
the United States, and who determines policies to be pursued by the
United States in relations with foreign powers or in the nationwide
administration of Federal laws. A party suggested that OPM define the
term ``who determines policies to be pursued by the United States in
relations with foreign powers or in the nationwide administration of
Federal laws.'' OPM is aware of only one category of employee,
Inspectors General appointed under the Inspector General Act of 1978,
who are statutorily excluded from this provision through section 3(c)
of that Act. In view of the different circumstances of each employee
who might claim coverage under this category, it would be impractical
to seek to identify all positions which qualify for this designation.
Therefore, OPM does not attempt to define this phrase in its interim
regulations.
Under the Hatch Act, these employees were covered by the
prohibition against misusing their official authority to interfere with
or affect the result of an election, but they specifically were
excluded from all aspects of the prohibition against active partisan
political participation. Under the Amendments, these employees continue
to be covered under the prohibition against misuse of official
authority. In contrast to the Hatch Act, the Amendments subject these
employees to additional prohibitions. Thus, the Amendments prohibit
these employees from running for partisan political office. They also
prohibit these employees from soliciting, accepting, and receiving
political contributions, except under the conditions specified in the
Amendments and these interim regulations. However, the Amendments
specifically exclude these employees from the prohibition against
political participation while on duty, in uniform, in a room or
building occupied in the discharge of official duties, or in a
Government-owned or leased vehicle. Section 734.502 reflects the
statutory exclusion. However, Sec. 734.502 also specifies that the
political activity of these employees may be further proscribed or
restricted in accordance with Sec. 734.104.
With regard to the exclusion, the Amendments require that the costs
associated with political participation must not be paid for with money
derived from the Treasury of the United States. Thus, Sec. 734.503 of
the interim regulations includes instructions for allocation and
reimbursement of costs associated with mixed travel. Section 734.503
does not supersede any other provision of fiscal or appropriations law;
it is intended to interpret the cost provisions of the Amendments.
Subpart F of the interim regulations concerns employees who work on
an irregular or occasional basis or who are special government
employees. Section 734.601 provides that these employees are subject to
the provisions of the applicable subpart of the interim regulations
while they are on duty.
Finally, an activity which is permitted under the Amendments may be
prohibited by other statutory provisions such as the Ethics in
Government Act of 1978, 5 U.S.C. App. OPM received inquiries as to
whether OPM would include within its interim regulations provisions
explaining the interaction between the Amendments and the Ethics in
Government Act of 1978, as well as the regulations promulgated under
that Act. OPM also received a suggestion to explain through its interim
regulations 18 U.S.C. 610 which concerns coercion of political activity
and was enacted through section 4 of the Amendments. OPM does not have
the jurisdiction to interpret these statutory provisions in its
regulations. However, these provisions have been included in subpart G
of the interim regulations which lists statutes and Executive orders
that also may apply to the activities described in this part.
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 is adding 5 CFR
part 734 to read as follows:
PART 734--POLITICAL ACTIVITIES OF FEDERAL EMPLOYEES
Subpart A--General Provisions
Sec.
734.101 Definitions.
734.102 Jurisdiction.
734.103 Multicandidate political committees of Federal labor
organizations and Federal employee organizations..
734.104 Restriction of political activity.
Subpart B--Permitted Activities
734.201 Exclusion from coverage.
734.202 Permitted activities.
734.203 Participation in nonpartisan activities.
734.204 Participation in political organizations.
734.205 Participation in political campaigns.
734.206 Participation in elections.
734.207 Candidacy for public office.
734.208 Participation in fundraising.
Subpart C--Prohibited Activities
734.301 Exclusion from coverage.
734.302 Use of official authority; prohibition.
734.303 Fundraising.
734.304 Candidacy for public office.
734.305 Soliciting or discouraging the political participation of
certain persons.
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.
734.307 Campaigning for a spouse or family member.
Subpart D--Employees in Certain Agencies and Positions
734.401 Coverage.
734.402 Expression of an employee's individual opinion.
734.403 Participation in elections.
734.404 Participation in political organizations.
734.405 Campaigning for a spouse or family member.
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; prohibitions.
734.407 Use of official authority; prohibition.
734.408 Participation in political management and political
campaigning; prohibitions.
734.409 Participation in political organizations; prohibitions.
734.410 Participation in political fundraising; prohibitions.
734.411 Participation in political campaigning; prohibitions.
734.412 Participation in elections; prohibitions.
734.413 Employees of the Federal Election Commission; prohibitions.
Subpart E--Special Provisions for Certain Presidential Appointees and
Employees Paid From the Appropriation for the Executive Office of the
President
734.501 Permitted and prohibited activities.
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.
734.503 Allocation and reimbursement of costs associated with
political activities.
Subpart F--Employees Who Work on an Irregular or Occasional Basis
734.601 Employees who work on an irregular or occasional basis.
Subpart G--Related Statutes and Executive Orders
734.701 General.
734.702 Related statutes and Executive orders.
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.
Subpart A--General Provisions
Sec. 734.101 Definitions.
For the purposes of this part:
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.
Candidate means an individual who seeks nomination or election to
any elective office whether or not the person is elected. An individual
is deemed to be a candidate if the individual has received political
contributions or made expenditures or has consented to another person
receiving contributions or making expenditures with a view to bringing
about the individual's nomination or election.
Campaign means all acts done by a candidate and his or her
adherents to obtain a majority or plurality of the votes to be cast
toward a nomination or in an election.
Election includes a primary, special, runoff, or general election.
Employee means any individual (other than the President, Vice
President, or a member of the uniformed services) employed or holding
office in--
(1) An Executive agency other than the General Accounting Office;
(2) A position within the competitive service which is not in an
Executive agency;
(3) The Government of the District of Columbia, other than the
Mayor or a member of the City Council or the Recorder of Deeds; or
(4) The United States Postal Service or the Postal Rate Commission.
Employing office shall have the meaning given by the head of each
agency or instrumentality of the United States Government or District
of Columbia Government covered by this part. Each agency or
instrumentality shall provide notice identifying the appropriate
employing offices within it through internal agency notice procedures.
Federal employee organization means any lawful nonprofit
organization, association, society, or club composed of Federal
employees.
Federal labor organization means an organization defined in 5
U.S.C. 7103(a)(4).
Multicandidate political committee means an organization defined in
2 U.S.C. 441a(a)(4).
Nonpartisan election means--
(1) An election in which none of the candidates is to be nominated
or elected as representing a political party any of whose candidates
for Presidential elector received votes in the last preceding election
at which Presidential electors were selected; or
(2) An election involving a question or issue which is not
specifically identified with a political party, such as a
constitutional amendment, referendum, approval of a municipal
ordinance, or any question or issue of a similar character.
Office means the U.S. Office of Personnel Management.
On Duty means the time period when an employee is:
(1) In a pay status other than paid leave, compensatory time off,
credit hours, time off as an incentive award, or excused or authorized
absence (including leave without pay); or
(2) Representing any agency or instrumentality of the United States
Government or any agency or instrumentality of the District of Columbia
Government in an official capacity.
Partisan when used as an adjective means related to a political
party.
Partisan political group means any committee, club, or other
organization which is affiliated with a political party or candidate
for public office in a partisan election, or organized for a partisan
purpose, or which engages in partisan political activity.
Partisan political office means any office for which any candidate
is nominated or elected as representing a party any of whose candidates
for Presidential elector received votes in the last preceding election
at which Presidential electors were selected, but does not include any
office or position within a political party or affiliated organization.
Person means an individual; a State, local, or foreign government;
or a corporation and subsidiaries it controls, company, association,
firm, partnership, society, joint stock company, or any other
organization or institution, including any officer, employee, or agent
of such person or entity.
Political activity means an activity directed toward the success or
failure of a political party, candidate for partisan political office,
or partisan political group.
Political contribution means any gift, subscription, loan, advance,
or deposit of money or anything of value, made for any political
purpose.
(a) A political contribution includes:
(1) Any contract, promise, or agreement, express or implied,
whether or not legally enforceable, to make a contribution for any
political purpose;
(2) Any payment by any person, other than a candidate or a
political party or affiliated organization, of compensation for the
personal services of another person which are rendered to any candidate
or political party or affiliated organization without charge for any
political purpose; and
(3) The provision of personal services, paid or unpaid, for any
political purpose.
(b) A political contribution does not include the value of services
provided without compensation by any individual who volunteers on
behalf of any candidate, campaign, political party, or partisan
political group.
Political management means the direction or supervision of a
partisan political group or campaign for partisan political office.
Political party means a national political party, a State political
party, or an affiliated organization.
Political purpose means an objective of promoting or opposing a
political party, candidate for partisan political office, or partisan
political group.
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.
Solicit means to request expressly of another person that he or she
contribute something to a candidate, a campaign, a political party, or
partisan political group.
Subordinate refers to the relationship between two employees when
one employee is under the supervisory authority, control or
administrative direction of the other employee.
Uniformed services means uniformed services as defined in 5 U.S.C.
2101(3).
Sec. 734.102 Jurisdiction.
(a) The United States Office of Special Counsel is authorized to
investigate allegations of political activity prohibited 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. Advice
concerning the Hatch Act Reform Amendments may be requested from the
Office of Special Counsel:
(1) By letter addressed to the Office of Special Counsel at 1730 M
Street NW., Suite 300, Washington, DC 20036, or
(2) By telephone on (202) 653-7188, or (1-800) 854-2824.
(b) The Merit Systems Protection Board is authorized to determine
whether a violation 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, 1212, 1216, and 7326).
(c) The Office of Personnel Management is authorized to issue
regulations describing the political activities which are permitted and
prohibited under the Hatch Act Reform Amendments of 1993. (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.)
Sec. 734.103 Multicandidate political committees of Federal labor
organizations and Federal employee organizations.
(a) In order to qualify under this part, each multicandidate
political committee of a Federal labor organization must provide to the
Office the following:
(1) Information verifying that the multicandidate political
committee is a multicandidate political committee as defined by 2
U.S.C. 441a(a)(4);
(2) Information identifying the Federal labor organization to which
the multicandidate political committee is connected; and
(3) Information that identifies the Federal labor organization as a
labor organization defined at 5 U.S.C. 7103(4).
(b) In order to qualify under this part, each multicandidate
political committee of a Federal employee organization must provide to
the Office the following:
(1) Information verifying that the multicandidate political
committee is a multicandidate political committee as defined in 2
U.S.C. 441a(a)(4);
(2) Information identifying the Federal employee organization to
which the multicandidate political committee is connected; and
(3) Information indicating that the multicandidate political
committee was in existence as of October 6, 1993.
Sec. 734.104 Restriction of political activity.
No further proscriptions or restrictions may be imposed upon
employees covered under this regulation except:
(a) Employees who are appointed by the President by and with the
advice and consent of the Senate;
(b) Employees who are appointed by the President;
(c) Non-career senior executive service members;
(d) Schedule C employees, 5 CFR 213.3301, 213.3302; and
(e) Any other employees who serve at the pleasure of the President.
Subpart B--Permitted Activities
Sec. 734.201 Exclusion from coverage.
This subpart does not apply to employees in the agencies and
positions described in subpart D of this part.
Sec. 734.202 Permitted activities.
Employees may take an active part in political activities,
including political management and political campaigns, to the extent
not expressly prohibited by law and this part.
Sec. 734.203 Participation in nonpartisan activities.
An employee may:
(a) Express his or her opinion privately and publicly on political
subjects;
(b) Be politically active in connection with a question which is
not specifically identified with a political party, such as a
constitutional amendment, referendum, approval of a municipal ordinance
or any other question or issue of a similar character;
(c) Participate in the nonpartisan activities of a civic,
community, social, labor, or professional organization, or of a similar
organization; and
(d) Participate fully in public affairs, except as prohibited by
other Federal law, in a manner which does not compromise his or her
efficiency or integrity as an employee or the neutrality, efficiency,
or integrity of the agency or instrumentality of the United States
Government or the District of Columbia Government in which he or she is
employed.
Example 1: An employee may participate, including holding
office, in any nonpartisan group. Such participation may include
fundraising as long as the fundraising is not in any way connected
with any partisan political issue, group, or candidate, and as long
as the fundraising complies with part 2635 of this title as well as
any other directives that may apply, e.g., the Federal Property
Management Regulations in 41 CFR chapter 101.
Sec. 734.204 Participation in political organizations.
An employee may:
(a) Be a member of a political party or other political group and
participate in its activities;
(b) Serve as an officer of a political party or other political
group, a member of a national, State, or local committee of a political
party, an officer or member of a committee of a political group, or be
a candidate for any of these positions;
(c) Attend and participate fully in the business of nominating
caucuses of political parties;
(d) Organize or reorganize a political party organization or
political group; and
(e) Participate in a political convention, rally, or other
political gathering.
Example 1: An employee of the Department of Education may serve
as a delegate, alternate, or proxy to a State or national party
convention.
Example 2: An employee of the Department of Health and Human
Services may serve as a vice-president of a partisan or non-partisan
political action committee, as long as the duties of the office do
not involve personal solicitation, acceptance, or receipt of
political contributions. Sections 734.208 and 734.303 of this part
describe in detail permitted and prohibited activities which are
related to fundraising.
Example 3: An employee of the Federal Communications Commission
may make motions or place a name in nomination at a nominating
caucus.
Example 4: An employee of the Department of the Interior may
serve as an officer of a candidate's campaign committee as long as
he does not personally solicit, accept, or receive political
contributions. Sections 734.208 and 734.303 of this part describe in
detail permitted and prohibited activities which are related to
fundraising.
Sec. 734.205 Participation in political campaigns.
Subject to the prohibitions in Sec. 734.306, an employee may:
(a) Display pictures, signs, stickers, badges, or buttons
associated with political parties, candidates for partisan political
office, or partisan political groups, as long as these items are
displayed in accordance with the provisions of Sec. 734.306 of subpart
C of this part;
(b) Initiate or circulate a nominating petition for a candidate for
partisan political office;
(c) Canvass for votes in support of or in opposition to a partisan
political candidate or a candidate for political party office;
(d) Endorse or oppose a partisan political candidate or a candidate
for political party office in a political advertisement, broadcast,
campaign literature, or similar material;
(e) Address a convention, caucus, rally, or similar gathering of a
political party or political group in support of or in opposition to a
partisan political candidate or a candidate for political party office;
and
(f) Take an active part in managing the political campaign of a
partisan political candidate or a candidate for political party office.
Example 1: An employee of the Environmental Protection Agency
may broadcast endorsements for a partisan political candidate via a
public address system attached to his or her private automobile.
Example 2: An employee of the Department of Interior may canvass
voters by telephone on behalf of a political party or partisan
political candidate.
Example 3: An employee of the Department of Agriculture may
stand outside of polling places on election day and hand out
brochures on behalf of a partisan political candidate or political
party.
Example 4: An employee may appear in a television or radio
broadcast which endorses a partisan political candidate and is
sponsored by the candidate's campaign committee, a political party,
or a partisan political group.
Example 5: An independent contractor is not covered by this part
and may display a political button while performing the duties for
which he or she is contracted.
Example 6: An employee of the Department of Commerce who is on
official travel may take annual leave in the morning to give an
address at a breakfast for a candidate for partisan political
office.
Example 7: An employee may manage the political campaign of a
candidate for public office including supervising paid and unpaid
campaign workers.
Sec. 734.206 Participation in elections.
An employee may:
(a) Register and vote in any election;
(b) Act as recorder, watcher, challenger, or similar officer at
polling places;
(c) Serve as an election judge or clerk, or in a similar position;
and
(d) Drive voters to polling places for a partisan political
candidate, partisan political group, or political party.
Example: An employee may drive voters to polling places in a
privately owned vehicle, but not in a Government-owned or leased
vehicle.
Sec. 734.207 Candidacy for public office.
An employee may:
(a) Run as an independent candidate in a partisan election covered
by 5 CFR part 733; and
(b) Run as a candidate in a nonpartisan election.
Example 1: An employee who is a candidate for public office in a
nonpartisan election is not barred by the Hatch Act from soliciting,
accepting, or receiving political contributions for his or her own
campaign; however, such solicitation, acceptance, or receipt must
comply with part 2635 of this title as well as any other directives
that may apply, e.g., The Federal Property Management Regulations
in 41 CFR chapter 101.
Sec. 734.208 Participation in fundraising.
(a) An employee may make a political contribution to a political
party, political group, campaign committee of a candidate for public
office in a partisan election and multicandidate political committee of
a Federal labor or Federal employee organization.
(b) Subject to the prohibitions stated in section 734.303, an
employee may--
(1) Attend a political fundraiser;
(2) Accept and receive political contributions in a partisan
election described in 5 CFR part 733;
(3) Solicit, accept, or receive uncompensated volunteer services
from any individual; and
(4) Solicit, accept, or receive political contributions, as long
as:
(i) The person who is solicited for a political contribution
belongs to the same Federal labor organization, or Federal employee
organization, as the employee who solicits, accepts, or receives the
contribution;
(ii) The person who is solicited for a political contribution is
not a subordinate employee; and
(iii) The request is for a contribution to the multicandidate
political committee of a Federal labor organization or to the
multicandidate political committee of a Federal employee organization
in existence on October 6, 1993.
Example 1: An GS-12 employee of the Department of Treasury who
belongs to the same Federal employee organization as a GS-5 employee
of the Department of Treasury may solicit a contribution for the
multicandidate political committee when she is not on duty as long
as the GS-5 employee is not under the supervisory authority of the
GS-12 employee.
Example 2: An employee of the National Park Service may give a
speech or keynote address at a political fundraiser when he is not
on duty, as long as the employee does not solicit political
contributions, as prohibited in Sec. 734.303(b) of this part.
Example 3: An employee's name may appear on an invitation to a
political fundraiser as a guest speaker as long as the reference in
no way suggests that the employee solicits or encourages
contributions, as prohibited in Sec. 734.303 of this part and
described in example 2 thereunder. However, the employee's official
title may not appear on invitations to any political fundraiser,
except that an employee who is ordinarily addressed using a general
term of address, such as ``The Honorable,'' may use or permit the
use of that term of address for such purposes.
Example 4: When an employee of the Department of Transportation
is not on duty, she may engage in activities which do not require
personal solicitations of contributions, such as organizing mail or
phone solicitations for political contributions. However, the
employee may not sign the solicitation letter unless the
solicitation is for the contribution of uncompensated services of
individuals. Activities such as stuffing envelopes with requests for
political contributions are permitted.
Example 5: An employee who is not on duty may participate in a
phone bank soliciting the uncompensated services of individuals.
However, an employee may not make phone solicitations for political
contributions even anonymously.
Example 6: An employee of the Department of Agriculture who is
on official travel and is not in a pay status nor officially
representing the Department may write invitations in his hotel room
to a meet-the-candidate reception which he plans to hold in his
home.
Example 7: An employee may serve as an officer or chairperson of
a political fundraising organization or committee as long as he or
she does not personally solicit, accept, or receive political
contributions. For example, the employee may organize or manage
fundraising activities as long as he or she does not violate the
above prohibition.
Example 8: The head of a cabinet-level department may contribute
one of her worn-out cowboy boots to the campaign committee of a
Senatorial candidate to be auctioned off in a fundraising raffle for
the benefit of the candidate's campaign.
Example 9: An employee may help organize a fundraiser including
supplying names for the invitation list as long as he or she does
not personally solicit, accept, or receive contributions.
Example 10 An employee on travel may engage in political
activity when he or she is not on duty without taking annual leave.
Example 11: 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. However, such solicitation, acceptance,
or receipt must comply with part 2635 of this title as well as any
other directives that may apply, e.g., the Federal Property
Management Regulations in 41 CFR chapter 101. Further, Federal
employees are subject to criminal anti-coercion provisions found at
18 U.S.C. 610.
Sbupart C--Prohibited Activities
Sec. 734.301 Exclusion from coverage.
This subpart does not apply to employees in the agencies and
positions described in subpart D of this part.
Sec. 734.302 Use of official authority; prohibition.
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.
Sec. 734.303 Fundraising.
An employee may not knowingly:
(a) Personally solicit, accept or receive a political contribution
from another person, except under the circumstances specified in
Sec. 734.208(b);
(b) Personally solicit political contributions in a speech or
keynote address given at a fundraiser;
(c) Allow his or her official title to be used in connection with
fundraising activities; or
(d) Solicit, accept, or receive uncompensated volunteer services
from an individual who is a subordinate.
Example 1: An employee may not host a fundraiser at his or her
home. However, a spouse who is not covered under this part may host
such a fundraiser and the employee may attend. The employee may not
personally solicit contributions to the fundraiser. Moreover, the
employee may not accept, or receive political contributions, except
under the circumstances stated in Sec. 734.208(b).
Example 2: An employee's name may not appear on an invitation to
a fundraiser as a sponsor of the fundraiser, or as a point of
contact for the fundraiser.
Example 3: An employee may not ask a subordinate employee to
volunteer on behalf of a partisan political campaign.
Example 4: An employee may not call the personnel office of a
business or corporation and request that the corporation or business
provide volunteers or services for a campaign. However, an employee
may call an individual who works for a business or corporation and
request that specific individual's services for a campaign.
Sec. 734.304 Candidacy for public office.
An employee may not run for the nomination or as a candidate for
election to partisan political office, except as specified in
Sec. 734.207.
Sec. 734.305 Soliciting or discouraging the political participation of
certain persons.
(a) An employee may not knowingly solicit or discourage the
participation in any political activity of any person who has an
application for any compensation grant, contract, ruling, license,
permit, or certificate pending before the employee's employing office.
(b) An employee may not knowingly solicit or discourage the
participation in any political activity of any person who is the
subject of, or a participant in, an ongoing audit, investigation, or
enforcement action being carried out by the employee's employing
office.
(c) Each agency or instrumentality of the United States or District
of Columbia Government shall determine when a matter is pending and
ongoing within employing offices of the agency or instrumentality for
the purposes of this part.
Example 1: An employee with agency-wide responsibility may
address a large, diverse group to seek support for a partisan
political candidate as long as the group has not been specifically
targeted as having matters before the employing office.
Example 2: An employee of the Federal Deposit Insurance
Corporation (FDIC) may not solicit or discourage the participation
of an insured financial institution or its employees if the
institution is undergoing examination by the FDIC.
Example 3: An employee of the Food and Drug Administration may
address a banquet for a partisan political candidate which is
sponsored by the candidate's campaign committee, even though the
audience includes three individuals who are employed by or are
officials of a pharmaceutical company. However, she may not deliver
the address if the banquet is sponsored by a lobbying group for
pharmaceutical companies, of if she knows that the audience will be
composed primarily of employees or officials of such companies.
Sec. 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.
(a) An employee may not participate in political activities subject
to the provisions of subpart E of this part:
(1) While he or she is on duty;
(2) While he or she is wearing a uniform, badge, insignia, or other
similar item that identifies the employing agency or instrumentality or
the position of the employee;
(3) While he or she is 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
(4) While using a Government-owned or leased vehicle or while using
a privately-owned vehicle in the discharge of official duties.
(b) The prohibitions in paragraph (a) of this section do not apply
to employees covered under subpart E of this part.
Example 1: While on leave without pay, an employee is not
subject to the prohibition in Sec. 734.306(a)(1) because he or she
is not on duty. However, while on leave without pay, the employee
remains subject to the other prohibitions in subpart C.
Example 2: A Postal Service employee who uses her private
vehicle to deliver mail may place a political bumper sticker on the
vehicle, as long as she covers the bumper sticker while she is on
duty.
Example 3: An employee who is being compensated for mileage when
driving a privately owned vehicle may place a bumper sticker on the
vehicle, as long as he covers the bumper sticker while the vehicle
is being used for official duties.
Example 4: An employee may place a bumper sticker on his
privately owned vehicle and park his 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 5: If an employee is not on duty, he or she may engage
in political activity in the office of his or her labor organization
local even if the space is provided by an agency or instrumentality
of the United States Government to the labor organization.
Example 6: An agency or instrumentality of the United States
Government leases offices in a commercial building; the headquarters
of a candidate for partisan political office are situated in the
same building. An employee of that agency or instrumentality may do
volunteer work at the candidate's headquarters when he is not on
duty.
Example 7: 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 8: 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 9: Officials of labor organizations who have been given
official time to perform representational duties are on duty.
Example 10: 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 lunch period if he is not
considered to be on duty during his lunch period.
Example 11: An employee may engage in political activity in the
courtyard outside of a Federal building where no official duties are
discharged as long as the employee is not on duty.
Example 12: 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 13: 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.
Sec. 734.307 Campaigning for a spouse or family member.
An employee covered under this subpart who is the spouse or family
member of either a candidate for partisan political office, candidate
for political party office, or candidate for public office in a
nonpartisan election, is subject to the same prohibitions as other
employees covered under this subpart.
Example 1: An employee who is married to a candidate for
partisan political office may attend a fundraiser for his spouse,
stand in the receiving line, sit at the head table, and urge others
to vote for his spouse. However, the employee may not personally
solicit, accept, or receive contributions of money or personal
services, or sell or collect money for tickets to the fundraiser.
Example 2: An employee who is the daughter of a candidate for
partisan political office may appear in a family photograph which is
printed in a campaign flier. She may distribute fliers at a campaign
rally as long as she does not personally solicit contributions.
Example 3: An employee who is married to a candidate for
political partisan political office may appear with her spouse in a
political advertisement or a broadcast, and urge others to vote for
her spouse, as long as the employee does not personally solicit
political contributions.
Subpart D--Employees in Certain Agencies and Positions
Sec. 734.401 Coverage.
(a) This subpart applies to employees in the following agencies and
positions:
(1) The Federal Election Commission;
(2) The Federal Bureau of Investigation;
(3) The Secret Service;
(4) The Central Intelligence Agency;
(5) The National Security Council;
(6) The National Security Agency;
(7) The Defense Intelligence Agency;
(8) The Merit Systems Protection Board;
(9) The Office of Special Counsel;
(10) The Office of Criminal Investigation of the Internal Revenue
Service.
(11) The Office of Investigative Programs of the United States
Customs Service;
(12) The Office of Law Enforcement of the Bureau of Alcohol,
Tobacco, and Firearms;
(13) The Criminal Division of the Department of Justice;
(14) Career Senior Executive Service positions described in 5
U.S.C. 3132(a)(4);
(15) Administrative Law Judge positions described in 5 U.S.C. 5372;
(16) Contract Appeals Board Member positions described in 5 U.S.C.
5372a.
(b) Employees appointed by the President by and with the advice and
consent of the Senate in the agencies and positions described in
paragraph (a) of this section are excluded from coverage under this
subpart.
(c) All employees covered under this subpart are free to engage in
political activity to the widest extent consistent with the
restrictions imposed by law and this subpart.
Sec. 734.402 Expression of an employee's individual opinion.
Each employee covered under this subpart retains the right to
participate in any of the following political activities, as long as
such activity is not performed in concert with a political party,
partisan political group, or a candidate for partisan political office:
(a) Express his or her opinion as an individual privately and
publicly on political subjects and candidates;
(b) Display a political picture, sign, sticker, badge, or button,
as long as these items are displayed in accordance with the provisions
of Sec. 734.408 of subpart D of this part;
(c) Sign a political petition as an individual;
(d) Be politically active in connection with a question which is
not specifically identified with a political party, such as a
constitutional amendment, referendum, approval of a municipal
ordinance, or any other question or issue of a similar character; and
(e) Otherwise participate fully in public affairs, except as
prohibited by other Federal law, in a manner which does not compromise
his or her efficiency or integrity as an employee or the neutrality,
efficiency, or integrity of the agency or instrumentality of the United
States Government in which he or she is employed.
Example 1: An employee may purchase air time on a radio or
television station to endorse a partisan political candidate.
However, he or she may not endorse such a candidate in a commercial
or program which is sponsored by the candidate's campaign committee,
a political party, or a partisan political group.
Example 2: An employee may address a political convention or
rally but not on behalf, or at the request of, a political party,
partisan political group, or an individual who is running for the
nomination or as a candidate for election to partisan political
office.
Example 3: An employee may print at her own expense one thousand
fliers which state her personal opinion that a partisan political
candidate is the best suited for the job. She may distribute the
fliers at a shopping mall on the weekend. However, she may not
distribute fliers printed by the candidate's campaign committee, a
political party, or a partisan political group.
Example 4: An employee may stand outside of a political party
convention with a homemade sign which states her individual opinion
that one of the candidates for nomination is the best qualified
candidate.
Example 5: An employee may not wear a button with a partisan
political theme while she is on duty.
Sec. 734.403 Participation in elections.
Each employee covered under this subpart retains the right to:
(a) Register and vote in any election;
(b) Take an active part, as a candidate or in support of a
candidate, in a nonpartisan election; and
(c) Serve as an election judge or clerk, or in a similar position,
to perform nonpartisan duties as prescribed by State or local law.
Sec. 734.404 Participation in political organizations.
Each employee covered under this subpart retains the right to:
(a) Participate in the nonpartisan activities of a civic,
community, social, labor, or professional organization, or of a similar
organization;
(b) 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;
(c) Attend a political convention, rally, fund-raising function, or
other political gathering; and
(d) Make a financial contribution to a political party, partisan
political group, or to the campaign committee of a candidate for
partisan political office.
Example 1: An employee may attend a political convention or
rally. However, the 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.
Sec. 734.405 Campaigning for a spouse or family member.
An employee covered under this subpart who is the spouse or family
member of either a candidate for partisan political office, or a
candidate for political party office, may appear in photographs of the
candidate's family which might appear in a political advertisement, a
broadcast, campaign literature, or similar material. A spouse or a
family member who is covered by the Hatch Act Reform Amendments also
may attend political functions with the candidate. However, the spouse
or family member may not distribute campaign literature or solicit,
accept, or receive political contributions.
Example 1: An employee who is the spouse of a candidate for
partisan political office may stand in the receiving line and sit at
the head table during a political dinner honoring the spouse.
Example 2: An employee who is the daughter of a candidate for
partisan political office may appear in a family photograph which is
printed in a campaign flier, but she may not distribute the flier at
a campaign rally.
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.
(a) An employee covered under this subpart may not participate in
political activities:
(1) While he or she is on duty;
(2) While he or she is wearing a uniform, badge, or insignia that
identifies the employing agency or instrumentality or the position of
the employee;
(3) While he or she is 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
(4) While using a Government-owned or leased vehicle or while using
a privately owned vehicle in the discharge of official duties.
(b) [Reserved]
Sec. 734.407 Use of official authority; prohibition.
An employee covered under this subpart may not use his or her
official authority or influence for the purpose of interfering with or
affecting the result of an election.
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 this part.
Sec. 734.409 Participation in political organizations; prohibitions.
An employee covered under this subpart may not:
(a) Serve as an officer of a political party, a member of a
national, State, or local committee of a political party, an officer or
member of a committee of a partisan political group, or be a candidate
for any of these positions;
(b) Organize or reorganize a political party organization or
partisan political group;
(c) Serve as a delegate, alternate, or proxy to a political party
convention; and
(d) Address a convention, caucus, rally, or similar gathering of a
political party or partisan political group in support of or in
opposition to a candidate for partisan political office or political
party office, if such address is done in concert with such a candidate,
political party, or partisan political group.
Sec. 734.410 Participation in political fundraising; prohibitions.
An employee covered under this subpart may not:
(a) Solicit, accept, or receive political contributions; or
(b) Organize, sell tickets to, promote, or actively participate in
a fundraising activity of a candidate for partisan political office or
of a political party, or partisan political group.
Sec. 734.411 Participation in political campaigning; prohibitions.
An employee covered under this subpart may not:
(a) Take an active part in managing the political campaign of a
candidate for partisan political office or a candidate for political
party office;
(b) Campaign for partisan political office;
(c) Canvass for votes in support of or in opposition to a candidate
for partisan political office or a candidate for political party
office, if such canvassing is done in concert with such a candidate, or
of a political party, or partisan political group;
(d) Endorse or oppose a candidate for partisan political office or
a candidate for political party office in a political advertisement,
broadcast, campaign literature, or similar material if such endorsement
or opposition is done in concert with such a candidate, political
party, or partisan political group;
(e) Initiate or circulate a partisan nominating petition.
Sec. 734.412 Participation in elections; prohibitions.
An employee covered under this subpart may not:
(a) Be a candidate for partisan political office except as
described in Sec. 734.403;
(b) Act as recorder, watcher, challenger, or similar officer at
polling places in consultation or coordination with a political party,
partisan political group, or a candidate for partisan political office;
(c) Drive voters to polling places in consultation or coordination
with a political party, partisan political group, or a candidate for
partisan political office.
Sec. 734.413 Employees of the Federal Election Commission;
prohibitions.
(a) An employee of the Federal Election Commission may not request
or receive from, or give to, an employee, a Member of Congress, or an
officer of a uniformed service a political contribution.
(b) This section does not cover employee of the Federal Election
Commission who are appointed by the President by and with the advice
and consent of the Senate.
Subpart E--Special Provisions for Certain Presidential Appointees
and Employees Paid from the Appropriation for the Executive Office
of the President
Sec. 734.501 Permitted and prohibited activities.
Except as otherwise specified in this part 734, employees who are
appointed by the President by and with the advice and consent of the
Senate are subject to the provisions of subparts B and C of this part.
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.
(a) This section applies to an employee:
(1) The duties and responsibilities of whose position continue
outside normal duty hours and while away from the normal duty post; and
(2) Who is--
(i) An employee paid from an appropriation for the Executive Office
of President; or
(ii) An employee appointed by the President by and with the advice
and consent of the Senate whose position is located within the United
States, who determines policies to be pursued by the United States in
relations with foreign powers or in the nationwide administration of
Federal laws;
(b) For the purposes of this subpart, normal duty hours and normal
duty post will be determined by the head of each agency or
instrumentality of the United States or District of Columbia
Government.
(c) An employee described in paragraph (a) of this section may
participate, subject to any restrictions that may be imposed in
accordance with Sec. 734.104, in political activities:
(1) While he or she is on duty;
(2) While he or she is wearing a uniform, badge, or insignia that
identifies the agency or instrumentality of the United States
Government or the position of the employee;
(3) While he or she is 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
(4) While using a Government-owned or leased vehicle or while using
a privately-owned vehicle in the discharge of official duties.
(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 which are part of the private Residence area or which are
not regularly used solely in the discharge of official duties.
Example 1: An Inspector General is appointed under the Inspector
General Act of 1978, as amended. According to section 3(c) of that
Act, he or she does not qualify as an employee who determines
policies to be pursued by the United States in the nationwide
administration of Federal laws. therefore, he or she may not
participate in political activities while on duty, while wearing a
uniform, badge, or insignia that identifies his or her office or
position, while in any room or building occupied in the discharge of
official duties, or while using a Government-owned or leased vehicle
or while using a privately-owned vehicle in the discharge of
official duties.
Example 2: An employee who is covered by this subpart and wears
a uniform as an incident of her office may wear the uniform while
she is giving a speech at a political fundraiser.
Example 3: The head of an executive department may hold a
partisan political meeting or host a reception which is not a
fundraiser in his conference room during normal business hours.
Example 4: An employee accompanies the Secretary of
Transportation to a political party convention as part of the
Secretary's security or administrative detail. The employee is
considered to be on duty while protecting or performing official
duties for the Secretary regardless of the nature of the function
that the Secretary is attending.
Example 5: An American Ambassador overseas obtains authorization
from the Department of State to depart post in order to take a
vacation away from post. During the period she is authorized to be
on vacation away from post, she is not considered to be on duty for
the purpose of the Hatch Act Reform Amendments and may engage in any
political activity permitted under the Hatch Act Reform Amendments
of 1993.
Sec. 734.503 Allocation and reimbursement of costs associated with
political activities.
(a) The costs associated with the political activities described in
Sec. 733.502(c) of this chapter may not be paid for by money derived
from the Treasury of the United States. Costs associated with a
political activity are deemed not to be paid for by money derived from
the Treasury of the United States if the Treasury is reimbursed for the
costs within a reasonable period of time.
(b) For the purposes of this section, costs associated with a
political activity do not include any costs that the Government would
have or have incurred regardless of whether the activity was political.
Examples of such costs are:
(1) The compensation of the employee described in Sec. 734.502(a);
(2) The value of any office or other real property owned or leased
by the Government;
(3) The compensation and expenses of any Government employee that
is required in the performance of his or her duties to accompany or
assist the person engaging in the political activity; and
(4) The cost of special security arrangements for the person
engaging in the political activity, including special transportation
vehicles or methods.
(c) (1) An employee covered under this subpart must apportion the
costs of mixed travel based on the time spent on political activities
and the time spent performing official duties. Prorating the cost of
travel involves determining the ``total activity time'' which is the
amount of time actually spent by the employee in meetings, receptions,
rallies, and similar activities. Time spent in actual travel, private
study, or rest and recreation is not included in the computation of the
``total activity time''. The proration of the cost then is determined
based on how the ``total activity time'' was spent. The formula is as
follows:
Time spent in official meetings, receptions, etc. + Time spent in
political meetings, receptions, rallies = Total activity time
Time spent in official activity Total activity time =
Percentage of trip that is official
Time spent in political activity Total activity time =
Percentage of trip that is political
The percentage figure that represents the political portion of the trip
is then multiplied by the amount that would be reimbursed to the
Government if all of the travel was political. The product of that
calculation represents the amount to be paid by the political entity or
organization.
(2) The allocation method must be applied to all of the relevant
costs of mixed travel.
(3) Expenses that are associated specifically with a political
activity and not with any official activity must be treated as
political, and expenses associated specifically with an official
activity and not with any political activity must be treated as
official.
(4) In allocating the costs of travel other than air travel, the
allocation formula should be applied to any Government maximum for that
type of expenditure.
(5) The determination of the proper amount of allocation must be
based on the facts and circumstances involved.
(6) In the event that a minor, clearly incidental percentage of the
activity of a mixed trip is devoted to either official or political
activity, e.g. less than 3%, the entire trip should be treated as if it
was wholly of the type represented by the substantial figure. The
balance should be treated as de minimis and need not be reimbursed as
political or charged as official.
(d) For any cost of a political activity of an employee that is
required to be reported to the Federal Election Commission under the
Federal Election Campaign Act (FECA) or the Presidential Election
Campaign Fund Act (PECFA), the employee shall use the same method of
allocation as used under the FECA or PECFA and regulations thereunder
in lieu of the allocation method in paragraph (c) of this section.
Example 1: The Secretary, an employee described by section
7324(b)(2) of title 5 of the United States Code, holds a catered
political activity (other than a fundraiser) in her office. Her
security detail attends the reception as part of their duty to
provide security for her. The Secretary will not be in violation of
the Hatch Act Reform Amendments if the costs of her office, her
compensation, and her security detail are not reimbursed to the
Treasury. A violation of the Hatch Act Amendments occurs if
Government funds, including reception or discretionary funds, are
used to cater the political activity, unless the Treasury is
reimbursed for the cost of the catering within a reasonable time.
Example 2: There should be no allocation between official and
political funds for a sound system rented for a single event.
Example 3: If on a mixed trip a Government employee is only
entitled to $26 per diem for food on a wholly official trip and the
trip is 50% political and 50% official, the Government share would
be 50% of $26, not 50% of the actual amount spent.
Example 4: The President is transported by special motorcade to
and from the site of the political event. The expense of the
motorcade is for special security arrangements. Thus, it would not
be a violation of the Hatch Act Reform Amendments if the costs of
the security arrangements, including the cost of the motorcade, are
not reimbursed to the Treasury.
Subpart F--Employees Who Work on An Irregular or Occasional Basis
Sec. 734.601 Employees who work on an irregular or occasional basis.
An employee who works on an irregular or occasional basis or is a
special Government employee as defined in 18 U.S.C. 202(a) is subject
to the provisions of the applicable subpart of this part when he or she
is on duty.
Example: An employee appointed to a special commission or task
force who does not have a regular tour of duty may run as a partisan
political candidate, but may actively campaign only when he or she
is not on duty.
Subpart G--Related Statutes and Executive Orders
Sec. 734.701 General.
In addition to the provisions regulating political activity set
forth in subparts A through G of this part, there are a number of
statutes and Executive orders that establish standards to which the
political activity of an employee, a Federal labor organization, a
Federal employee organization, and a multicandidate political committee
must conform. The list set forth in Sec. 734.702 references some of the
more significant of those statutes. It is not comprehensive and
includes only references to statutes of general applicability.
Sec. 734.702 Related statutes and Executive orders.
(a) The prohibition against offering anything of value in
consideration of the use or promise of use of influence to procure
appointive office (18 U.S.C. 210).
(b) The prohibition against solicitation or acceptance of anything
of value to obtain public office for another (18 U.S.C. 211).
(c) The prohibition against intimidating, threatening, or coercing
voters in Federal elections (18 U.S.C. 594).
(d) The prohibition against use of official authority to interfere
with a Federal election by a person employed in any administrative
position by the United States in connection with any activity financed
in whole or in part by Federal funds (18 U.S.C. 595).
(e) The prohibition against the promise of employment,
compensation, or benefits from Federal funds in exchange for political
activity (18 U.S.C. 600).
(f) The prohibition against the deprivation of or threat of
deprivation of employment in exchange for political contributions (18
U.S.C. 601).
(g) The prohibition against soliciting political contributions (18
U.S.C. 602).
(h) The prohibition against making certain political contributions
(18 U.S.C. 603).
(i) The prohibition against soliciting or receiving assessments,
subscriptions, or contributions for political purposes from persons on
Federal relief or work relief (18 U.S.C. 604).
(j) The prohibition against disclosing and receiving lists or names
of persons on relief for political purposes (18 U.S.C. 605).
(k) The prohibition against intimidating employees to give or
withhold a political contribution (18 U.S.C. 606).
(l) The prohibition against soliciting political contributions in
navy yards, forts, or arsenals (18 U.S.C. 607).
(m) The prohibition against coercing employees of the Federal
Government to engage in, or not to engage in, any political activity
(18 U.S.C. 610).
(n) The prohibition against certain personnel practices (5 U.S.C.
2302).
(o) The prohibition against making, requesting, considering, or
accepting political recommendations (5 U.S.C. 3303).
(p) The prohibitions against misuse of a Government vehicle (31
U.S.C. 1344).
(q) The requirements and prohibitions stated in the Federal
Election Campaign Act (2 U.S.C. 431-455).
(r) The prohibitions against soliciting for gifts to superiors,
giving donations for such gifts, and accepting gifts from employees who
receive a lower rate of pay (5 U.S.C. 7351).
(s) The prohibitions against soliciting or accepting things of
value from specified persons (5 U.S.C. 7353).
(t) The prohibitions and requirements stated in the Ethics in
Government Act of 1978 (5 U.S.C. App.) and Executive Order 12674 (54 FR
15159-15162; 3 CFR 1989 Comp. 215-218) as modified by Executive Order
12731 (55 FR 42547-42550; 3 CFR 1990 Comp. 306-311).
[FR Doc. 94-23395 Filed 9-22-94; 8:45 am]
BILLING CODE 6325-01-M
