Political Activities of Federal Employees

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