The Hatch Act Meets the Digital Age



Sending or even forwarding an e-mail on your government computer that advocates the election or defeat of a political candidate can put you in violation of the law and possibly get you fired, federal officials said.

The Hatch Act, passed in 1939, restricts the political activities of federal employees, giving them a shield to ward off pressure from their supervisors or political bosses. Yesterday's hearing examined the law, how it is enforced and whether it may be too rigid in the age of the Internet.

Federal employees still cannot engage in political activity while on duty, in a government office, using a government vehicle or wearing an official uniform. They cannot run for office in a partisan election. They also cannot use their official authority to interfere with an election, and they cannot solicit or receive political contributions.

In 1993, Congress eased some of the restrictions to permit federal employees to take an active role in political campaigns. The changes have allowed federal employees outside of office hours to manage political campaigns, serve as delegates to political conventions, organize fundraisers and distribute brochures for a political party on Election Day outside polling places.

The 1993 amendments, however, were put in place before the Internet, e-mail and YouTube videos began transforming how Americans communicate and go about their work. It's not uncommon these days for employees to swap e-mails that lampoon politicians and political parties, and, depending on how they are read, suggest how votes should be cast.

"The line between casual 'water-cooler' conversation and political activity that is not permitted may be unclear to many employees," said Sen. Daniel K. Akaka (D-Hawaii), who called yesterday's hearing as chairman of the Senate federal workforce subcommittee.

"Does inviting a few work friends to a campaign rally after work violate the Hatch Act? Does it matter if an employee asks his friends by e-mailing, rather than while chatting in the break room?" Akaka asked.

Officials from the Office of Special Counsel, which investigates and prosecutes Hatch Act allegations, said they make determinations of violations on a case-by-case basis, looking at the content of the message, who sent the e-mail and how many people received the e-mail from the government computer.

James Byrne, deputy special counsel, said the agency has seen an increase in e-mails involving partisan activities since the 2000 election. Because e-mails can be forwarded, they can take on a life that goes far beyond a chat among friends, he suggested.

When it comes to the Hatch Act, he told Akaka, "There is no such animal as the water-cooler exception."
E-mails advocating on behalf of political candidates appear to be a relatively small problem, at least for now.
Chad Bungard, general counsel at the Merit Systems Protection Board, indicated in his testimony that only four e-mail cases related to Hatch Act violations have come before the board. The board usually hears about 8,400 appeals from employees challenging agency decisions each year, but only 36 Hatch Act cases have been heard by the board during the last five years, he said.

Still, federal employee union leaders told Akaka that they think the Office of Special Counsel has chilled the expression of personal opinions on political subjects and candidates by seeking penalties that are too harsh for most transgressions. Too often, federal agencies and managers wield the law to block nonpartisan voter registration drives in federal buildings or to intimidate union officials, the labor leaders said.

"A one-time mistake by an employee with little or no impact on the workplace should not be punished in the same manner as partisan campaigning at the federal work site," said John Gage, president of the American Federation of Government Employees.

Colleen M. Kelley, president of the National Treasury Employees Union, lamented, "What happens in reality is that federal employees are often so confused about what is acceptable and what is not acceptable that they choose not to exercise their rights."
TSP Limits

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Certain parts of the tax code are being adjusted for inflation, the Internal Revenue Service said yesterday. But the maximum, tax-free contribution that government employees may make to the Thrift Savings Plan, their 401(k)-type retirement program, will remain unchanged, the IRS said.
The formula used by the IRS calls for increasing the TSP limit by $500 at a time, and the inflation-adjusted calculation fell short of that threshold for next year.
In 2008, government employees may contribute up to $15,500 to their TSP accounts, the same as this year. Those 50 and older can make an additional contribution, popularly known as "catch-up" contributions, of up to $5,000.
Talk Shows

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Larry Pastor, president of the Federal Physicians Association, and Dennis Boyd, the group's executive director, will be the guests on "FedTalk" at 11 a.m. today on http://federalnewsradio.com and WFED radio (1050 AM).
Elaine Duke, chief procurement officer at the Department of Homeland Security, will be the guest on the IBM "Business of Government Hour" at 9 a.m. Saturday on WJFK radio (106.7 FM).
Stephen Barr's e-mail address is barrs@washpost.com.




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