Political Activities of Federal Employees

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 734

RIN 3206-AH33

Political Activities of Federal Employees

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The Office of Personnel Management (OPM) is issuing final

regulations regarding the political activity of Federal employees.

These regulations will inform Federal employees of the political

activities which are permitted and prohibited under the Hatch Act

Reform Amendments of 1993. Covered employees also should refer to OPM's

interim regulations as part 733, published in the Federal Register in

the February 4, 1994 edition, which specifically address political

activities connected with local elections in designated communities.

EFFECTIVE DATE: August 5, 1996.

FOR FURTHER INFORMATION CONTACT:

Jo-Ann Chabot at (202) 606-1700.

SUPPLEMENTARY INFORMATION: On October 6, 1993, the President signed the

Hatch Act Reform Amendments of 1993. The Reform Amendments became

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effective on February 3, 1994 and OPM has the authority to issue

regulations under the Reform Amendments. On September 23, 1994, OPM

issued interim regulations with a request for comments at part 734

concerning the political activities that generally are permitted and

prohibited to Federal employees. OPM received comments from nine

Federal agencies, two Federal employee labor organizations, and an

individual before the comment period closed on November 22, 1994. OPM's

observations about the comments follow the numerical order of the

regulations starting at subpart A and ending with subpart G.

Comment on Supplementary Information Preceding the OPM Interim

Regulations

One Federal agency commented that the supplementary information

preceding OPM's interim regulations requires clarification of the

language which makes it appear that Sec. 734.208 applies exclusively to

Federal employees who belong to a Federal employee labor organization.

The agency noted that the language of Sec. 734.208 clearly shows that

the requirement of belonging to a Federal employee labor organization,

or other Federal employee organization, applies only to the fundraising

activities described in Sec. 734.208(b)(4). OPM agrees. Every employee

who is covered under subparts B and C of part 734 may participate in

the activities described in Sec. 734.208 (a) and (b) (1) through (3).

The activities described in Sec. 734.208(b)(4) are limited to members

of the Federal employee labor organizations and Federal employee

organizations that meet the requirements of 5 U.S.C. 7323(a)(2) and 5

CFR 734.103. Sections 734.404(c)-(d) and 734.410 describe permitted and

prohibited fundraising activities for employees covered under subpart

D.

Subpart A--General Provisions

Section 734.101 of the interim regulations provides definitions for

certain terms used throughout the regulations. The regulations define

``accept'' and ``receive'' as the acts of accepting or receiving

something from a person officially on behalf of a candidate, a

campaign, a political party, or a partisan political group. One Federal

agency and one Federal employee labor organization commented that the

language from the supplementary material preceding the interim

regulations which noted that ``ministerial activities preceding or

following the official acceptance and receipt are not covered under the

definitions'' should be added to the definitions. OPM agrees that

adding such language to the definitions of ``accept'' and ``received''

clarifies the definitions and has made the suggested changes.

OPM also received two comments on the definition of ``on duty'' in

Sec. 734.101. A Federal agency commented that the definition should

contain language from the supplementary material preceding the interim

regulations noting that it is not appropriate to grant excused absence

(administrative leave) to participate in political activities. This

agency also noted that the definition should note that it is not

appropriate to request sick leave in order to participate in political

activity. While OPM has the authority to regulate a covered employee's

partisan political activity, the granting of excused absence is a

matter of agency discretion. However, an agency's decision to grant

excused absences for the purposes of engaging in partisan political

activities or partisan political management would not be appropriate.

Indeed, granting excused absences solely for the purposes of

participation in partisan political activities might be a violation of

the prohibitions against use of official authority or influence to

interfere with or affect the results of an election. In addition, 5

U.S.C. 6307 and OPM's regulations at 5 CFR 630.401 prescribe the

conditions under which an employee may use sick leave. It is not

appropriate to permit the use of sick leave to participate in partisan

political activities. Sick leave should be granted only under the

conditions prescribed by 5 U.S.C. 6307 and 5 CFR 630.401.

Citing Bureau of Alcohol, Tobacco and Firearms v. Federal Labor

Relations Authority, 464 U.S. 89, 105 (1983), a Federal employee labor

organization commented that the definition of ``on duty'' should

exclude ``official time'' given to employees who are labor

organizations officials because employees on ``official time'' are not

considered to be in duty status, except for purposes of being paid.

Thus, the labor organization noted that, as a matter of statutory

construction, official time is simply not time ``on duty.'' The Supreme

Court concluded in this decision that Federal employees who negotiate

on behalf of a labor organization are not conducting official business

on behalf of the Government. However, the Supreme Court reached this

conclusion for the limited purpose of determining whether Federal

employees who represent their labor unions in collective bargaining

with agencies are entitled to reimbursement from the Government for

travel and per diem expenses.

Citing National Federation of Federal Employees and U.S. Department

of Veterans Affairs, 47 FLRA 1118, 1124, (1993) (NFFE) and American

Federation of Government Employees and U.S. Department of Labor, 39

FLRA 546, 553 (1991), (AFGE), the labor organization also noted that

the Federal Labor Relations Authority (FLRA) has sanctioned the use of

official time for union representatives to lobby Congress concerning

working conditions. NFFE concerned a collective bargaining proposal to

authorize the use of a reasonable amount of time as official time under

5 U.S.C. 7131(d) to lobby members of Congress in support of or

opposition to pending or desired legislation which would affect the

working conditions of employees represented by the union. The FLRA

found that 5 U.S.C. 7102 contemplates that employees will express their

views to Congress through their exclusive representative, and

specifically grants employees functioning as labor representatives the

right to present the views of the labor organization to Congress. It

also found that the proposal concerned labor-management relations

activities for which official time is authorized under section 7131(d).

Although the FLRA concluded that the proposal was negotiable under

section 7131(d), the FLRA reached its decision within the context of

petitioning Congress regarding nonpartisan issues that generally affect

employees' working conditions. It did not determine whether these

statutory provisions also provide for official time to participate in

partisan political activities on behalf of individuals who are

candidates for partisan political office.

AFGE concerns an agency denial of an employee's request to use an

agency automobile and to use official time for travel to and from a

hearing regarding his claim for workers' compensation. The FLRA held

that 5 U.S.C. 7131(d) did not preclude the parties in the case from

agreeing to provide for official time in circumstances unrelated to

labor-management relations activities, provided that granting such

official time was consistent with the statute and other applicable laws

and regulations. The FLRA cited attendance at hearings before the Equal

Employment Opportunity Commission and responding to discovery requests

in cases before the Merit Systems Protection Board as examples of

circumstances unrelated to labor-management relations activities where

use of official time might be authorized. Thus, this decision clearly

was made

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within the context of prehearing for and appearing at administrative

hearings on behalf of employees, and does not address the use of

official time to participate actively in partisan political activities.

The Federal Service Labor-Management Relations Statute (Labor

Statute), at 5 U.S.C. 7101(a)(1)(A) provides that statutory protection

of employee rights to organize, bargain collectively, and participate

through labor organizations in decisions which affect them safeguard

the public interest. It also provides at section 7102 that employees

who represent labor organizations are entitled to present labor

organization views to Congress in connection with matters regarding

conditions of employment. However, none of the provisions in chapter 71

of title 5, United States Code, concern participation in partisan

political activities.

The Hatch Act Reform Amendments of 1993, enacted subsequent to the

Labor Statute, specifically address participation in partisan political

activities and permit Federal employees to participate actively in most

of the partisan political activities that previously had been

prohibited to these employees under the original Hatch Act. In return

for the opportunity for wider political participation, the Reform

Amendments specifically prohibit Federal employees from engaging in any

partisan political activities basically while on duty or on Federal

premises.

The intent of Congress in enacting the Reform Amendments, a statute

specifically intended to govern the partisan political activities of

Federal employees, controls the previously enacted provisions on labor-

management, at 5 U.S.C. Chapter 71, which clearly do not permit Federal

employees to participate in partisan political activities while they

are on duty or on Federal premises, and do not even address

participation in partisan political activities. In contrast, the Reform

Amendments, at 5 U.S.C. 7324(a), specifically prohibit most Federal

employees from such participation and provide for only one exemption

from the prohibition. The Reform Amendments, at 5 U.S.C. 7324(b),

exempt employees whose official duties and responsibilities continue

outside normal duty hours and while away from the normal duty post, and

who are (1) paid from an appropriation for the Executive Office of the

President, or (2) appointed by the President, by and with the advice

and consent of the Senate, to positions that are located within the

United States and involve determinations of policy to be pursued by the

United States in relations with foreign powers or in the nationwide

administration of Federal laws. If Congress had intended to exempt

other employees from the prohibition, Congress clearly would have

provided for such exemptions in the statute itself.

In addressing the question of whether the Reform Amendments

prohibit Federal employees from making voluntary salary allotments to

political action committees, an opinion issued by the Office of Legal

Counsel at the Department of Justice to the Office of Personnel

Management on February 22, 1995, also discussed at length the

prohibitions against partisan political participation on duty or on

Federal premises, and Congressional intent in enacting it. The opinion

stated:

It is evident from the statements of the (Reform Amendments')

leading sponsors that Congress intended to create a bright-line

rule, with no exceptions: Section 7324(a) prohibits covered

employees from engaging in all on-duty and on-site political

activity. As the principal Senate sponsor of the bill states, on-

the-job political activity ``would be absolutely and unequivocally

prohibited.'' 139 Cong. Rec. S8605 (daily ed. July 13, 1993)

(statement of Senator Glenn). Thus, for example Congress intended to

prohibit the wearing of political buttons on duty. Nor can covered

employees stuff envelopes with political materials or send out

campaign materials while they are on the job or in a federal

building--such activities are permitted only off-site and ``off the

job.''

Thus, Congress clearly intended to prohibit partisan political

participation on duty, and on Federal premises, and exempted only one

category of employees from these prohibitions. Consequently, for the

purposes of the Reform Amendments, OPM cannot define ``on duty'' to

exclude ``official time,'' as that term is defined in the Labor

Statute.

In this connection, Example 5 in Sec. 734.306 of the interim

regulations, which issued September 23, 1994 (59 FR 48756, 48773-

48774), provides that employees who are not on duty may engage in

political activity in the office of their labor organization even if

the space is provided by an agency or instrumentality of the United

States Government. In view of the Office of Legal Counsel opinion of

February 22, 1995, a subsequent intervening event, OPM found it

necessary to revisit its initial review of the statutory scheme

established through the Reform Amendments. Based on this further

review, OPM has concluded that the Reform Amendments require it to

treat the questions of time and space consistently in considering the

activities which the Reform Amendments permit and prohibit. Moreover,

it is clear both from OPM's statutory review and the Office of Legal

Counsel opinion of February 22, 1995, that Congress intended to create

a bright line prohibition against partisan political activities when

conducted on duty or on Federal premises, or both. Consequently, OPM

must remove Example 5 from Sec. 734.306 of the interim regulations.

A Federal agency commented that the definition of ``political

purpose'' should include non-partisan political purposes because many

political purposes are non-partisan. In the interim regulations, the

definition of ``political activity'' is limited to partisan political

activity because OPM has interpreted the Reform Amendments as

restricting Federal employees' participation in partisan political

activities. The legislative history of the Reform Amendments shows that

Congress was well aware that the Hatch Act prohibited active

participation in partisan political activities and, in enacting the

Reform Amendments, Congress was referring to partisan purposes and

activities when referring to a political purpose or political activity.

S. Rep. No. 57, 103rd Cong. 1st Sess. 2-6, 13-14, 24-39 (1993); 139

Cong. Rec. S8605-8606 (daily ed. July 13, 1993) (statement of Senator

Glenn); id. at S8685-8686 (daily ed. July 14, 1993) (statement of

Senator Roth); id. at S8701-8703 (daily ed. July 14, 1993) (statement

of Senator Stevens); id. at S8946 (daily ed. July 20, 1993) (statement

of Senator Durenberger); id. at S8947-8948 (daily ed. July 20, 1993)

(statement of Senator Levin). See H.R. Rep. No. 16, 103rd Cong. 1st

Sess. 16 (1993) (to accompany H.R. 20). President Clinton's remarks on

signing the Reform Amendments, delivered October 6, 1993, the day on

which he signed the Reform Amendments, reflect his understanding that

the terms ``political purpose'' and ``political activity'' refer to

partisan political purposes and partisan political activities. He

stated:

The Federal Employees Political Activities Act, which I'm about

to sign, will permit Federal employees and postal workers on their

own time to manage campaigns, raise funds, to hold positions within

political parties. Still, there will be some reasonable

restrictions. They wouldn't be able to run for partisan political

office themselves, for example, and there will be some new

responsibilities, which I applaud the Federal employees' unions for

embracing and supporting.

While we restore political rights to these millions of citizens,

we also hold them to high standards. The Federal workplace, where

the business of our Nation is done will

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still be strictly off limits to partisan political activity.

Therefore, defining ``political purpose'' as a partisan political

purpose is consistent with other definitions in the regulations,

Congressional intent as reflected in the legislative history of the

Reform Amendments, and President Clinton's understanding of the term

``political activities'' as reflected in his remark on signing the

Reform Amendments.

Two Federal agencies and one Federal labor union commented that the

interim regulations do not provide enough guidance concerning a ``room

or building occupied in the discharge of official duties by an

individual employed or holding office in the Government of the United

States or any agency or instrumentality thereof.'' The Federal labor

organization noted that the regulations did not specify which areas in

a ``room or building * * * '' encompasses. Another Federal agency noted

that the regulations did not address use of areas such as recreational

space in leased space or cafeterias, hallways, restrooms and employee

lounges. In response to these comments, OPM has added a definition of

``room or building occupied in the discharge of official duties by an

individual employed or holding office in the Government of the United

States or any agency or instrumentality thereof.''

The definition specifically excludes those rooms in the White House

which are part of the Residence area or which are not regularly used

solely in the discharge of official duties. This exclusion is based on

the January 17, 1979, opinion of the Office of the Legal Counsel of the

Department of Justice. The same principles that govern the White House

also would apply to the residence of the Vice President which,

historically, has been treated like the White House. Therefore, the

same analysis and conclusions that apply to the White House also apply

to the residence of the Vice President.

The Federal labor organization further commented that political

activities in areas defined as ``public areas'' in the General Services

Administration's (GSA's) Federal Property Management Regulations should

not be prohibited because GSA's regulations create a protected public

forum. OPM sought comment from GSA on the issue of ``public areas''.

GSA noted that ``public areas'' remain ``rooms or buildings'' even when

in use by the public for cultural, recreational, or educational

activities governed by the Cooperative Use Act of 1976, 40 U.S.C.

490(a)(17), as implemented in the Federal Property Management

Regulations at 41 CFR subpart 101-20.4. GSA provided that the

Cooperative Use Act and the Reform Amendments should be read together.

Accordingly, the definition of ``room or building'' incorporates the

definition of ``public area'' in 40 U.S.C. 490(a)(17) and 41 CFR 101-

20.003.

OPM also sought comments on this issue from the United States

Office of Special Counsel (OSC), which noted that the GSA regulations

at 41 CFR 101-20.003 define ``public areas'' as any areas of a building

under the control and custody of GSA which ordinarily are open to the

public, such as lobbies, meeting rooms, auditoriums, and similar areas

not assigned to a lessee or occupant. OSC stated its belief that

permitting political activities ``in such generally defined areas could

lead to confusion and enforcement problems in trying to determine what

parts of buildings remain `off limits' for such activity.'' It noted

further that ``allowing political activity in a hallway and courtyard

but not a conference room, or in an auditorium but not a cafeteria,

could result in confusing and possibly unenforceable interpretations.''

Moreover, the Supreme Court noted in Cornelius v. NAACP Legal

Defense and Education Fund, Inc., 47 U.S. 788, 802-903 (1985), a

designated public forum is created in a Federal office building, or any

other government property, only when there is a ``clear intent to

dedicate the property for assembly, debate and speech.'' The

Cooperative Use Act does not dedicate every public building as a public

forum, but only authorizes the GSA Administrator to make certain spaces

available ``on occasion'' and ``on such other terms and conditions as

the Administrator deems to be in the public interest'' if such use

``will not disrupt the operation of the building.'' In Cornelius, the

Supreme Court held that it will not ``infer that the government

intended to create a public forum when the nature of the property is

inconsistent with expressive activity'' and is reluctant to find a

``designated public forum,'' if expressive activity would disrupt the

principal function of the property. Id. at 803-804. In addition, in

Greer v. Spock, 424 U.S. 828, 831-836 (1976) the Court held that

allowing some speech or expressive activity in a forum does not

dedicate the property as a ``public forum'' for free and uninhibited

expressive activity by the public. Accordingly, ``public areas'' are

not ``public fora'' and employees are prohibited from engaging in

partisan political activity in those areas. In view of this, OPM has

deleted Example 11 from Sec. 734.306 which provides that a Federal

employee may engage in political activity in the courtyard outside of a

Federal building when the employee is not on duty.

One Federal agency commented that the regulations did not specify

whether an area leased to contractors such as a cafeteria or fitness

facility is a ``room or building * * * .''. Pursuant to the discussion

above, we have added an example in Sec. 734.306 providing that

employees may not engage in partisan political activity in space leased

to contractors in Federal buildings.

Regarding Sec. 734.306 of the interim regulations, a Federal labor

organization commented that the regulations imply that the prohibition

on political activities in rooms or buildings occupied in the discharge

of official duties does not extend to areas not controlled by the

Government, such as union offices and the leased offices of candidates.

The labor organization suggested modifying Example 5 in Sec. 734.306 to

state that political activity is permitted in space, such as meeting

rooms or other facilities, temporarily under the control of labor

organizations or other non-government entities. In view of the Reform

Amendments' prohibition against partisan political participation on

Federal property, and the Office of Legal Counsel's interpretation of

that prohibition, as described in the discussion relating to the

definition of the item ``on duty'' in Sec. 734.101, OPM must remove

this example from Sec. 734.306.

A Federal employee labor organization commented that the definition

of ``subordinate'' in the interim regulations would suggest that it

includes more categories of employees than the definitions of the terms

``supervisor'' and ``management official'' in 5 U.S.C. 7103(10) and

(11). This organization suggested that, rather than defining the term

``subordinate,'' the regulations use the definition of ``supervisor''

in 5 U.S.C. 7103(10), because the definition of ``supervisor'' is

familiar to many Federal employees. The interim regulations define

``subordinate'' as ``the relationship between two employees when one

employee is under the supervisory authority, control or administrative

direction of the other employee.'' OPM believes that the definition of

``subordinate'' is clear and relects the intent of Congress to prevent

any coercion of subordinate employees by a supervisor or any other

employee who may otherwise direct, control or exercise authority over

an employee.

Section 734.102 outlines the authority of the Office of Personnel

Management, the Office of Special Counsel, and the

[[Page 35092]]

Merit Systems Protection Board under the Reform Amendments and the

implementing regulations. One Federal employee labor organization

commented that this section should cite to the Reform Amendments as the

underlying authority. OPM agrees and has added these citations.

One Federal agency and one Federal employee labor organization

commented that the regulations do not specify whether the Office of

Special Counsel and the Merit Systems Protection Board have exclusive

jurisdiction. OPM agrees that the regulations need clarification.

Individual agencies do not have authority to investigate suspected

political activity violations or to impose administrative remedies.

Therefore, OPM is changing the regulations to reflect that the Office

of Special Counsel and the Merit Systems Protection Board have

exclusive jurisdiction.

Section 734.104 prohibits further restriction on the political

activities of covered employees except for employees who are appointed

by the President by and with the advice and consent of the Senate,

employees who are appointed by the President, non-career Senior

Executive Service members, Schedule C employees (appointed pursuant to

5 CFR 213.3301, 213.3302) and any other employees who serve at the

pleasure of the President. A Federal agency suggested adding a new

subsection to cover United States Trustees appointed under 28 U.S.C.

581. The exceptions in Sec. 734.104 are based upon a September 20, 1994

opinion of the Office of Legal Counsel of the Department of Justice

issued to the Office of Personnel Management which provided that an

Administration could impose additional restrictions on the specific

groups of political appointees outlined in Sec. 734.104. Accordingly,

the President or his designee may further restrict the political

activities of the specific employees described in Sec. 734.104.

However, pursuant to 28 U.S.C. 581, United States Trustees serve at the

pleasure of the Attorney General, not the President, and do not fall

within the exceptions provided by the Office of legal counsel Opinion.

therefore, OPM does not have the authority to add the United States

Trustees to the list in Sec. 734.104.

Subpart B--Permitted Activities

Section 734.203 of the interim regulations permits employees under

subpart B (Permitted Activities) to participate in nonpartisan

political activities and describes various nonpartisan activities. A

Federal employee labor organization noted that Sec. 734.203 fails to

reflect that 5 U.S.C. 7211 provides Federal employees with a statutory

right to petition Congress. It further commented that this issue is

confusing to Federal employees, and suggested adding another example to

Sec. 734.203 which illustrates that the Reform Amendments do not

prohibit Federal employees from exercising their rights under 5 U.S.C.

7211. OPM agrees with this suggestion, and has added such an example to

Sec. 734.203.

Section 734.204 of the interim regulations concerns permitted

participation in political organizations. A Federal agency suggested

amending this section by adding another paragraph which specifies that

an employee may serve as a delegate, alternate, or proxy to a political

party convention. OPM agrees with this suggestion and has added such a

paragraph to Sec. 734.204.

Example 2 in Sec. 734.204 specifies that an employee may serve as

an officer of a partisan or nonpartisan political action committee, as

long as the employee does not personally solicit, accept, or receive

political contributions. A Federal employee labor organization

suggested clarifying the example by stating that ministerial activities

which precede or follow the official acceptance and receipt of

contributions are not covered under the regulatory definitions of

``accept'' and ``receive.'' OPM agrees with this suggestion and has

amended Example 2 accordingly. Example 2 also describes a political

action committee as partisan or nonpartisan. This description does not

accord with the definition of political action committee that OPM has

added to its political activity regulations at 5 CFR part 734. The

definition of this term does not distinguish between partisan and

nonpartisan political action committees. Therefore, OPM has further

amended Example 2 by removing the descriptive terms ``partisan'' and

``nonpartisan.''

Section 734.205 of subpart B (Permitted Activities) describes

permissible political activities connected with participation in

campaigns for partisan political office. Example 5 in this section

specifies that an independent contractor is not covered under subpart B

and may display a political button while performing his contractual

duties. A Federal employee labor organization submitted several

comments concerning the display of political buttons by employees who

are covered under subpart B. OPM has discussed those comments in

connection with its discussion of Sec. 734.306, infra, which prohibits

partisan political participation while on duty, in uniform, in any room

or building occupied in the discharge of official duties, or while

using a Government-owned or leased vehicle.

Section 734.207 concerns candidacy for public office and permits

employees to run as independent candidates in the local partisan

elections described in 5 CFR part 733, or as candidates in nonpartisan

elections. A Federal agency proposed that OPM add an example to this

provision specifying that employees may distribute campaign leaflets,

even though the leaflets include information on where to send

contributions. The Federal agency further noted that the example also

should specify that the employee should refer to another campaign

worker any questions concerning further information about

contributions. OPM agrees with this suggestion, but has provided in the

example that such questions should be referred to another campaign

worker who is not a Federal employee. OPM also believes that it would

be more appropriate to add the example to Sec. 734.205, which concerns

participation in campaigns for partisan political office, rather than

to Sec. 734.207.

Section 734.208 describes permissible activities connected with

participation in fundraising. Subsection (b)(2) permits employees to

accept and receive political contributions in a partisan election

described in 5 CFR part 733, which pertains to the political activities

of covered employees who reside in certain localities designated by

OPM. A Federal agency stated its belief that subsection (b)(2)

conflicts with the statutory definition of the term ``political

contribution'' included in section 2(a) of the Reform Amendments and

codified at 5 U.S.C. 7322(3), as amended, which does not refer to

contributions for ``partisan'' political purposes. Therefore, the

Federal agency suggested deleting subsection (b)(2) from Sec. 734.208

of the OPM regulations.

Section 2(a) of the Reform Amendments, codified at 5 U.S.C. 7325,

as amended, authorizes OPM to issue regulations permitting employees,

``without regard to the prohibitions in paragraphs (2) and (3) of

section 7323(a) (of title 5, United States Code),'' to take an active

part in certain local elections. Section 7323(a)(2) and (3),

respectively, prohibit employees from knowingly soliciting, accepting,

or receiving political contributions, and from running ``for the

nomination or as a candidate for election to a partisan political

office.'' Candidacy for partisan political office occurs within the

context of partisan political elections. Accordingly,

Sec. 734.208(b)(2) of the OPM regulations does not conflict with the

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definition at 5 U.S.C. 7322(3), as amended. Therefore, OPM has not

deleted Sec. 734.208(b)(2) from the final version of its regulations.

Section 734.208(b)(4)(ii) of the regulations provides that, under

specified limited circumstances, an employee may solicit, accept, or

receive political contributions from another employee who is not a

subordinate employee. A Federal employers labor organization suggested

including in the regulations the definition of the term ``supervisor''

stated at 5 U.S.C. 7103(10). This suggestion already has been addressed

in the discussion of Sec. 734.101 of the Regulations.

Example 5 in Sec. 734.208 prohibits employees from making telephone

solicitations for political contributions, even anonymously. A Federal

employee labor organization noted that, if a telephone solicitation

truly was anonymous, there would be no way of finding the employee who

might have made the solicitation. The Federal employee labor

organization further noted that a reference to anonymous telephone

solicitations might even encourage employees to make such

solicitations. Consequently, it suggested that OPM delete the reference

to anonymous telephone solicitions in Example 5. OPM believes that this

reference makes it clear to Federal employees that, except for

solicitations made under the circumstances described in 5 U.S.C.

7323(a)(2), solicitations of political contributions, even anonymous

telephone solicitations, are prohibited under the Reform Amendments.

Therefore, OPM will retain the reference to anonymous telephone

solicitations in Example 5.

Example 11 in Sec. 734.208 provides that a Federal employee may

solicit, accept, or receive the uncompensated volunteer services of any

individual, except a subordinate employee, to work on behalf of a

partisan political candidate or organization. A Federal employee labor

organizations suggested deleting the phrase ``except a subordinate

employee'' from Example 11. The labor organization said that the

interim regulations clearly specify that a political contribution does

not include the uncompensated volunteer services of an individual.

Thus, the labor organization did not find any basis for the example

prohibiting any employee from soliciting the volunteer services of

another employee.

Although it is true that uncompensated volunteer service of an

individual is not a political contribution, OPM believes that

soliciting such services from subordinate employees is covered under

Sec. 734.302, which prohibits employees from using their official

authority or influence for the purpose of influencing or affecting the

results of an election. OPM further believes that removing the

reference to subordinate employees in Example 11 would mislead

employees into believing that part 734 permits employees to solicit,

accept ore receive such services from subordinate employees. Therefore,

OPM has retained the reference to subordinate employees in Example 11.

The labor organization also said that Example 11 is at odds with

Example 4 in Sec. 734.208, which permits employees to sign letters

soliciting the contribution of uncompensated services of individuals.

It noted that, in a mass mailing, an employee's subordinates might

receive these letters. OPM agrees that Example 4 is confusing and

requires clarification in this regard. Therefore, it has revised

Example 4 to specify that an employee may not knowingly send such a

letter to his or her subordinate employees. However, Example 4 also

will specify that it is permissible to sign such letters as part of a

general mass mailing, as long as the mailing is not specifically

targeted to one's subordinate employees.

Another Federal employee labor organization noted that employees

who are not members may contribute to the labor organization's

political action committee, but Federal employees associated with the

labor organization may not accept or receive the contribution. It

suggested that Sec. 734.208 might be clarified through an additional

example stating that a Federal employee labor organization can receive

contributions, independent of their receipt by Federally employed

members of the labor organization, and describing procedures for making

such contributions. OPM believes that the regulations clearly state

that any employee may contribute to the multicandidate political action

committee of a Federal labor or Federal employee organization, and that

the Federally employed members of such organizations may not accept

contributions from Federal employees who are not organization members.

Therefore, OPM believes that it is not necessary to add the suggested

example to Sec. 734.208.

Finally, the Reform Amendments include an exception to the general

prohibition on soliciting, accepting, or receiving political

contributions. This exception permits employees to solicit, accept, or

receive such contributions from other employees who are not subordinate

employees and who are members of the same Federal labor organization or

Federal employee organization for the multicandidate political

committees of their organizations. It may not be clear to employees

that this exception only extends to the general prohibition against

soliciting, receiving, or accepting political contributions. It does

not extend to the other prohibitions against engaging in partisan

political activities either while on duty, or while on Federal

premises, or both. Thus, employees may solicit, accept, and receive

political contributions for the multicandidate political committees of

their organizations from employees who are not subordinates and who

belong to the same Federal labor or employee organization. However,

they may not conduct such activities either while they are on duty, or

while on Federal premises, or both. Accordingly, OPM has added an

example to Sec. 734.208 to clarify this matter. In addition, OPM notes

that labor organizations certified by the National Labor Relations

Board pursuant to 29 U.S.C. 151 et seq. to represent Postal Service

employees are not covered under the definition of ``labor

organization'' in 5 U.S.C. 7103(4) and, therefore, are not Federal

labor organizations within the meaning of the Reform Amendments.

However, these Postal Service labor organizations clearly qualify as

Federal employee organizations for purposes of the Hatch Act Reform

Amendments.

Subpart C--Prohibited Activities

Section 734.302 prohibits employees from using their official

authority or influence in order to interfere with or affect the results

of an election. A Federal agency commented that this section does not

give adequate guidance and needs to be clarified. The agency noted that

if the section intended to prohibit misues or coercion that it did not

clearly do so. OPM agrees that the Reform Amendments intended to

prevent employees from misusing their official authority or influence

in order to interfere with or affect the result of an election. OPM is

revising its regulations to clarify that Sec. 734.302 not only

prohibits the misuse of official authority such as the use of an

official title, as distinguished from a general form of address such as

``The Honorable,'' while participating in partisan political

activities, but also bans coercive actions such as awarding contracts

on the basis of contributions to partisan political campaigns or

soliciting subordinates for any partisan political purpose. OPM notes

in this regard that the merit system principles, at 5 U.S.C.

2301(b)(8), provide that employees should be protected against

arbitrary

[[Page 35094]]

action, personal favoritism, and coercion for partisan political

purposes. Section 2301(b)(8) also provides that employees should be

prohibited from using their official authority to interfere with or

affect an election or a nomination for election. Moreover, 5 U.S.C.

2302(b)(3) makes it a prohibited personal practice to coerce the

political activity of any person (including the providing of any

political contribution or service), or to take action against an

employee for his or her refusal to participate in these political

activities. Thus, soliciting uncompensated volunteer services from a

subordinate for a political purpose clearly falls within the

prohibition against the use of official authority to interfere with or

affect an election.

Accepting or receiving uncompensated volunteer services from a

subordinate results in as great a potential for coercion, or the

appearance of coercion, as soliciting such services from a subordinate.

Although an employee might not directly solicit uncompensated volunteer

services from a subordinate, he still could make it clear to the

subordinate in more subtle ways that it would be in the subordinate's

best interest to provide such services. In view of a superior's

authority to promote, discipline, issue awards, or take other personnel

actions affecting an employee's career, or to make recommendations

regarding such actions to an official above him in the chain of

command, and the potential for coercion that exists under such

circumstances, accepting and receiving uncompensated volunteer services

from subordinates also falls within the prohibition against the use of

official authority to interfere with or affect the results of an

election. Accordingly, OPM will retain the prohibition against

accepting and receiving uncompensated volunteer services from

subordinates.

Section 734.303 describes prohibited activities connected with

fundraising. Subsection (d) prohibits employees from soliciting,

accepting, or receiving uncompensated volunteer services from

individuals who are subordinates. A Federal employee labor organization

commented that, because the definition of ``political contribution''

does not include uncompensated volunteer services, employees should not

be prohibited from soliciting, accepting, or receiving such services

from their subordinates. For the reasons stated in its discussion of

Sec. 734,302, supra, OPM is retaining these prohibition in its

political activity regulation at part 734.

A Federal agency noted that the regulations do not reflect

specifically that, as long as an employee is not coerced, the employee

may voluntarily donate uncompensated volunteer services to his

supervisor. While OPM's regulations do not specifically prohibit an

employee from voluntarily donating uncompensated volunteer services to

his supervisor, Sec. 734.303(d) of the regulations does prohibit a

supervisor from accepting such services. Therefore, the concern

expressed by this agency in its comment has been adequately addressed

in the regulation.

This prohibition clearly would not apply to requests for volunteer

services made by the President or the Vice-President to the employees

specified in 5 U.S.C. 7324(b)(2) whose duties and responsibilities

continue outside of normal duty hours and away from the normal duty

post, and who are (1) paid from an appropriation for the Executive

Office of the President, or (2) appointed by the President, by and with

the advice and consent of the Senate, whose positions are located

within the United States and who determine policies to be pursued by

the United States in relations with foreign powers or in the nationwide

administration of Federal laws. Congress recognized their special

status in specifically excluding them from the prohibitions against

political participation while on duty, in uniform, on Federal premises,

or using a Government vehicle. Moreover, the President and Vice-

President of the United States specifically are excluded from the

definition of employee in 5 U.S.C. 7322(1) and, therefore, they are not

subject to the prohibitions on political activity in Reform Amendments

or part 734.

The agency also asked whether a subordinate employee may speak at a

political event in place of his superior, a PAS employee, when the PAS

employee suddenly learns that she cannot attend the event. The

regulations generally permit covered employees to speak at partisan

political events, but prohibit an employee who does not qualify for

coverage under subpart E of the interim regulations from giving such a

speech while on duty.

However, the ultimate answer to such questions depend on the facts

and circumstances in each individual case, and also may involve issues

related to the standards of ethical conduct for employees of the

Executive Branch. Therefore, OPM has determined not to address in its

regulatory examples the issues raised in the agency's comments, because

such examples might be misleading. Individual detailed guidance on such

fact based issues should be sought through an advisory opinion from the

United States Office of Special Counsel and, if warranted, from the

designated agency ethics official at the employee's agency.

Example 2 in Sec. 734.303 states that an employee's name may not

appear on an invitation to a fundraiser as a sponsor or a point of

contact. A Federal employee labor organization commented that this

example appeared to be inconsistent with Example 3 in Sec. 734.208

which permits employees' names to appear on such invitations as guest

speakers. It also commented that a point of contract on an invitation

for a fundraiser would not necessarily be involved with soliciting,

accepting or receiving political contributions in an official manner.

Thus, it suggested amending Example 2 to provide that an employee's

name could appear on an invitation as a point of contact for general

information about a fundraiser.

OPM does not believe that these two examples are inconsistent. A

person who is identified as a point of contact on a fundraising

invitation clearly gives the appearance of being associated with

soliciting, accepting, or receiving political contributions. Such is

not the case with a person who is only identified on the invitation as

a guest speaker. Thus, OPM has decided not to amend Example 2 in

Sec. 734.303.

Example 3 in Sec. 734.303 provides that an employee may not ask a

subordinate to volunteer on behalf of a partisan political campaign.

Section 734.303 describes fundraising activities which are prohibited.

A Federal employee labor organization suggested that OPM remove this

example because individual uncompensated volunteer services are not

political contributions. OPM has addressed the question of requesting

subordinate employees to perform uncompensated volunteer services in

Sec. 734.302, supra.

Section 734.305 prohibits an employee from knowingly soliciting or

discouraging the political participation of anyone who has matters

pending before the employee's employing office or of anyone who is the

subject of investigation or enforcement carried out by the employee's

employing office. A Federal agency commented that the regulations

should address soliciting or discouraging participation in non-partisan

elections. As OPM stated above in response to comments on the

definition of ``political purpose,'' the pertinent legislative history

and the President's remarks on signing the Reform Amendments show that

the Reform Amendments concern participation in partisan political

activities. Consequently, the regulations do not address soliciting or

discouraging participation in non-partisan political activities.

[[Page 35095]]

This same Federal agency further requested that this section

address whether an employee may endorse a candidate for an elective

office, the duties of which require the incumbent of that office to

consistently transact business before the agency. In this instance, it

is impossible to provide an example that would accurately answer this

agency's inquiry because the answers to such questions depend on the

facts and circumstances of each individual case.

This agency also asked whether employees appointed by the President

by and with the advice and consent of the Senate (PAS) are prohibited

from making political speeches in their personal capacity addressing

issues related to agency business. The Reform Amendments and OPM

regulations at part 734 generally do not prohibit a PAS from making a

political speech in her personal capacity, providing that the President

or his designee has not placed further restrictions on her political

activities in accordance with Sec. 734.104, and the speech is not made

to solicit or discourage the political participation of certain persons

described in Sec. 734.305.

Depending on the facts and circumstances associated with the

speech, however, such activity also may be government by provisions

other than the Reform Amendments. Because determinations on whether

this activity is prohibited ultimately rest on the facts and

circumstances of each individual case, employees should consult the

Office of Special Counsel and, if warranted, the designated agency

ethics official for advice.

Section 734.305 requires that each agency or instrumentality of the

United States or District of Columbia Government must determine when

matters are pending and ongoing within the employing office of the

agency or instrumentality. This same Federal agency also commented that

the regulations should provide guidelines for agencies to follow in

determining when a matter is pending or ongoing. Since there are great

differences among agencies or instrumentalities, OPM disagrees with

this comment and believes each agency and instrumentality should make

its own determination.

Section 734.306 prohibits employees covered by subparts B and C

from participating in partisan political activities while they are on

duty, in uniform, in a room or building occupied in the discharge of

official duties by an individual employed or holding office in the

Government of the United States, using a Government-owned or leased

vehicle, or using a privately-owned vehicle in the discharge of

official duties. An individual commented that, if OPM intended through

its interim regulations to prohibit employees from wearing partisan

political buttons while on duty, OPM should add a provision to subpart

C, Prohibited Activities, explicitly stating that employees may not

wear partisan political buttons while on duty. Two Federal agencies

also suggested OPM might do this by adding an example to Sec. 734.036

specifically stating that employees may not wear partisan political

buttons while they are on duty or display partisan political materials

at their work stations. OPM agrees with these suggestions and, through

another example added to Sec. 734.306, has prohibited employees from

wearing partisan political buttons while on duty.

A Federal employee labor organization commented that the interim

regulations permit SES members to wear partisan political buttons while

they are on duty, but prohibit competitive service employees from

wearing partisan political buttons under the same circumstances. The

Reform Amendments' prohibition against partisan political participation

on duty extends to all covered employees except for the two employee

categories described in 5 U.S.C. 7324(b)(2) and covered under subpart E

(Special Provisions for Certain Presidential Appointees and Employees

Paid from the Appropriation for the Executive Office of the President).

All other employees, including SES members, are prohibited from wearing

partisan political buttons on duty.

One Federal agency asked whether the prohibition on employees

wearing political buttons while on duty extends to items worn on duty,

or displayed in the work place, relating to candidates in nonpartisan

elections or to nonpartisan issues. The interim regulations provide

that the prohibition against political participation on duty only

extends to partisan political participation. Thus, the prohibition

against wearing political buttons on duty or displaying political items

in the workplace does not extend to nonpartisan candidates or to

nonpartisan issue-oriented campaigns.

A Federal employee labor organization commented that wearing

political buttons is an expression of speech guaranteed by the

Constitution, as well as an expression of opinion about a political

candidate that clearly is permitted under the Hatch Act and should

continue to be permitted under the Reform Amendments. Citing American

Federation of Government Employees AFL-CIO v. Pierce, 586 F. Supp. 1559

(1984), the labor organization said that the prohibition against

wearing political buttons on duty and the illustrative examples are

overboard, and do not appear to have a specific purpose such as

protecting the efficient performance of official duties or preventing a

conflict, or apparent conflict, of interest.

The legislative history of the Reform Amendments shows Congress was

aware that, under the then-existing provisions of the Hatch Act,

Federal employees were permitted to wear partisan political buttons

while on duty. See 139 Cong. Rec. S8604-S8606 (daily ed. July 13, 1993)

(statement of Senator Glenn). It also shows that Congress clearly

intended to establish a bright-line rule prohibiting all political

participation on duty, and that this rule extends to wearing partisan

political buttons while on duty. S. Rep. No. 57, 103rd Cong. 1 st Sess.

14 (1993), reprinted in 1993 U.S.C.C.A.N. 1082, 1815; 139 Cong. Rec.

S8684 (daily ed. July 14, 1993) (statement of Senator Glenn); id. at

S8765, S8770, S8785-S8786 (daily ed. July 15, 1993) (statement of

Senator Glenn); id. at S8805, 8808 (daily ed. July 15, 1993)

(statements of Senators Boxer and Sarbanes); id. at S8929 (daily ed.

July 20, 1993) (statement of Senator Glenn). See H.R. Rep. No. 16,

103rd Cong. 1st Sess. 16, 19-20 (1993) (to accompany H.R. 20).

The legislative history of the Reform Amendments further shows that

Congress focused on wearing partisan political buttons on duty because

this activity could result in subtle and unspoken coercion when done by

a supervisor, the appearance of a conflict of interest, and the

erroneous identification of the Government as a supporter of particular

partisan candidates, parties, or groups. 139 Cong. Rec. S8604-S8605

(daily ed. July 13, 1993) (statement of Senator Glenn); id. at S8785

(daily ed. July 15, 1993) (statement of Senator Glenn); id. at S8926

(daily ed. July 20, 1993) (statement of Senator Glenn). See H.R. Rep.

No. 16, 103rd Cong. 1st Sess. 16, 19-20 (1993) (to accompany H.R. 20).

Thus, the regulatory prohibition against employees wearing partisan

political buttons while on duty originates with the clear expression of

Congressional intent in enacting these Amendments.

American Federation of Government Employees v. Pierce concerned a

Veterans' Administration regulation prohibiting employees from wearing

political buttons while on duty. The United States District Court for

the District of Columbia struck down the prohibition as overboard,

finding that the prohibition did not protect the

[[Page 35096]]

efficient performance of official duties or prevent a conflict or

apparent conflict of interest.

Current circumstances differ from the circumstances which resulted

in the district court decision. At that time, the Hatch Act prohibited

Federal employees from participating actively in any partisan political

activities, and Federal employees clearly could not be associated with

partisan political candidates, parties, or groups. Now the Reform

Amendments permit most Federal employees to participate actively in

almost all partisan political activities and to become prominently

identified with partisan political candidates, parties, or groups. The

expansion of such opportunities for Federal employees to become

involved in, and identified with, partisan politics, increases the

danger of erroneous perceptions about coercion of Federal employees or

individual citizens having business with the Government, identification

of the Government with specific partisan candidates or groups,

favoritism in administering Government programs, and conflicts of

interest. A prohibition narrowly tailored to displays of partisan

political buttons, pictures, signs, stickers, or badges on duty or in

the workplace clearly promotes the efficient performance of official

duties and prevents a conflict or apparent conflict of interest under

current circumstances.

In a related matter, an individual, a Federal employee

organization, and five Federal agencies commented unfavorably on the

requirement to cover bumper stickers on personal vehicles, particularly

during occasional use for official travel, such as driving the vehicle

to the site of a training course. The labor organization commented that

there was no rational basis for requiring employees to cover bumper

stickers when they use their personal vehicles as incidental

transportation, for example, in lieu of taking a taxi to or from

another agency for a meeting. The labor organization stated that the

requirement was not realistic and suggested that it should apply only

when the private vehicle itself is used in the performance of official

duties, such as delivering mail on a rural route or inspecting crops.

The agencies and individual commented that the requirement to cover

bumper stickers when using a personal vehicle for official business was

excessive, unreasonable, unduly burdensome, and virtually

unenforceable.

OPM agrees that a requirement to cover bumper stickers in every

instance is not practical and would be difficult to enforce where

employees use their private vehicles only occasionally, such as in

driving to a meeting or training course. Imposing this requirement

within the context of such occasional use of private vehicles would

result in inadvertent violations by employees who easily may forget to

cover the bumper stickers on their vehicles, and would be very

difficult to enforce. Therefore, OPM has amended the examples in

Sec. 734.306 to reflect that the requirement to cover bumper stickers

on private vehicles only applies when the vehicle is used for official

business on a recurrent basis, or clearly is identified as being on

official business, and does not apply to the occasional use of such a

vehicle for official business. However, within this context, OPM also

desires to make it clear to covered employees that they are prohibited

from placing partisan political bumper stickers on any Government-owned

or leased vehicle.

OPM accordingly has defined the terms ``recurrent'' and

``occasional'' in Sec. 734.101. These definitions are based on common

usage. The Random House Dictionary of the English Language

(Unabridged), 2d Ed., 1987, defines ``occasional'' as ``occurring or

appearing at irregular or infrequent intervals; occurring now and then;

acting or serving for the occasion or only on particular occasions.''

Webster's Third New International Dictionary of the English Language

(Unabridged), 1966 Ed., defines ``occasional'' as ``occurring or

operating on a particular occasion; proceeding from the occasion; met

with, appearing, or occurring irregularly and accordingly to no fixed

or certain scheme; infrequent.''

The Random House Dictionary defines ``recurrent'' as ``occurring or

appearing again, esp. repeatedly or periodically.'' Webster's

Dictionary defines ``recurrent'' as ``returning from time to time;

appearing or coming periodically; happening again and again.'' Finally,

the Oxford English Dictionary (1933) defines ``recurrent'' as occurring

or coming again (esp. frequently or periodically); reappearing.'' The

regulatory definitions of ``occasional'' and ``recurrent'' incorporate

these concepts.

Example 6 of Sec. 734.306 of the interim regulations concerns

political activities in a commercial building where Government agencies

and instrumentalities lease office space, and where the headquarters of

a candidate for partisan political office also are situated. The

example provides that an employee of the Government agency or

instrumentality may do volunteer work at the candidate's headquarters

when the employee is not on duty.

OPM believes that this example is confusing because it suggests

that employees may participate in political activities only in the

candidate's headquarters, and not elsewhere in the building. Therefore,

OPM has revised the example to clarify that, when employees are not on

duty, the Reform Amendments do not prohibit them from participating in

political activities in the other areas of the building that are not

leased by the Government, including public areas that are shared by all

of the tenants, such as the main lobby. Although the Reform Amendments

would not prohibit employees from political participation in areas that

are shared by all of the tenants, OPM notes that political activities

in these areas may be restricted by the landlord.

For purposes of contrast and further clarification, OPM has

included an additional example specifying that, where a Government

agency or instrumentality leases all of the space in a commercial

building, employees may not participate in political activity in any

area of the building, including the public areas of the leased

building.

OPM believes this distinction is in accord with the February 22,

1995 opinion of the Office of Legal Counsel at the Department of

Justice to the Office of Personnel Management. That opinion stressed

that Congress intended to create a bright-line rule against

participating in partisan political activities while on Federal

premises. To apply this prohibition to all areas of a commercial

building, when the Government has leased only a part of the building,

would undermine the bright-line rule described in the Office of Legal

Counsel opinion. Accordingly, distinguishing between a commercial

building in which the Government has leased part of the space and a

commercial building in which the Government has leased all of the space

accords with the Congressional intent of establishing a bright-line

rule as described in the Office of Legal Counsel opinion.

Example 10 of Sec. 734.306 of the interim regulations provides that

Federal employees may participate in partisan political activities

while they are sitting in the park on their lunch break, if they are

not on duty during their lunch break. A Federal agency suggested that

the regulations specify when Federal employees would not be on duty

during their lunch breaks, and that individual agencies should

determine whether employees are on duty at that time. In general,

employees who are covered by title 5, United States Code, are not in a

pay status during a bona fide lunch break and, therefore, they are not

on duty. However, for the

[[Page 35097]]

purposes of these regulations, an employee still is considered to be on

duty during his lunch hour when he is representing an agency or

instrumentality of the United States in an official capacity during

that time.

Example 1 of Sec. 734.307 prohibits the Federally employed spouses

of candidates for partisan political office from soliciting, accepting,

or receiving contributions of money or personal services. A federal

employee labor organization suggested deleting personal services from

Example 1 because soliciting volunteer services is not prohibited.

Although personal services are different from the uncompensated

volunteer services of an individual, it is clear from the comment that

use of the term ``personal services'' in Example 1 is confusing. To

clarify the example, OPM has deleted the term ``personal services''

from Example 1, and substituted the phrase ``paid or unpaid services of

a business or corporation.''

Subpart D--Employees in Certain Agencies and Positions

Subpart D of the regulations concerns the political activities of

employees in the sensitive agencies and positions that are listed in

Sec. 734.401. Through section 501(k) of Pub. L. 103-359 (October 14,

1994), Congress added the Central Imagery Office to the sensitive

agencies and positions listed in 5 U.S.C. 7323 (b)(2)(B)(i).

Accordingly, OPM has added the Central Imagery Office to the agencies

and positions listed in Sec. 734.401(a) of the regulations.

Section 734.402 of subpart D describes permissible expressions of

individual opinion for these employees. Subsection (b) of Sec. 734.402

provides that they may display partisan political pictures, signs,

stickers, badges, or buttons, as long as these items are displayed off

duty and away from Federal premises in accordance with the provisions

of Sec. 734.408. Two Federal agencies suggested changing the cross-

reference in subsection (b) from Secs. 734.408 to 734.406. Section

734.408 generally prohibits active participation in partisan political

management and partisan political campaigns. Section 734.406 prohibits

political participation while on duty, in uniform, in any room or

building occupied in the discharge of official duties, or using a

Federal vehicle. We agree with the suggestions that a cross-reference

to Sec. 734.406 would be more appropriate, and have changed

Sec. 734.402(b) to reflect this. OPM also has amended Example 5 in

Sec. 734.402 to reflect when it is permissible for an employee who is

covered under subpart D to wear a partisan political button and, for

purposes of clarification, has added another example providing that an

employee may place partisan political signs on his or her private

property.

Section 734.404 describes permissible participation in political

organizations. Subsection (c) provides that employees may attend

political conventions, rallies, fund-raising functions, or other

political gatherings. A Federal agency noted that Example 1 appears to

contradict, rather than to illustrate, this principle by prohibiting

employees from participating in demonstrations or parades while they

are attending a convention or rally. The Federal agency suggested that

OPM should explain further exactly what activities are permissible, or

define what is meant by attending a convention, rally, or other

political gathering.

OPM agrees that Example 1 in Sec. 734.404 should be clarified.

Although employees may attend the conventions and rallies of political

parties or partisan political groups, joining in the parades and

demonstrations held at these functions is considered active

participation in partisan political activity. Therefore, Example 1 in

Sec. 734.404 has been amended to reflect that employees may attend

partisan political conventions or partisan political rallies solely as

spectators, but they may not participate in demonstrations or parades

at these partisan political functions.

Section 734.406 prohibits employees from participating in political

activities while they are on duty, in uniform, in any room or building

occupied in the discharge of official duties, or using a Federal

vehicle.

Another Federal agency asked whether Sec. 734.406 prohibits

displays in the workplace or while on duty of pictures, signs, badges,

or buttons for candidates in non-partisan elections or for ballot

issues not specifically identified with a political party. The interim

regulations provide that the prohibition against political

participation on duty only extends to partisan political participation.

Thus, the prohibition against wearing political buttons on duty or

displaying political items in the workplace does not extend to displays

for candidates in nonpartisan elections or to issues that are not

specifically identified with a political party.

The same Federal agency requested clarification on the restriction

in Sec. 734.406(a)(4) of participating in political activities while

using a privately owned vehicle in the discharge of official duties.

The agency noted that, since political participation includes displays

of partisan political bumper stickers, the restriction could be

interpreted as barring employees from having such bumper stickers on

their private vehicle if the employees use the vehicle for official

travel. The agency further noted that enforcement of such a restriction

would be impractical. We agree with this assessment, and have added

clarifying examples to Sec. 734.406 applying the restriction only to

privately owned vehicles that are used for official business on a

recurrent basis or clearly are identified as being on official

business. The restriction does not apply to the occasional use of such

a vehicle for official business. The terms ``occasional'' and

``recurrent'' are defined in Sec. 734.101.

In a related matter, an individual and two Federal agencies

generally commented in connection with subpart C that, if OPM intended

through its interim regulations to prohibit employees from wearing

partisan political buttons while on duty, OPM should add a provision

explicitly stating that employees may not wear partisan political

buttons while on duty. Two Federal agencies suggested OPM might do this

by adding an example specifically stating that employees may not wear

partisan political buttons while they are on duty or display partisan

political materials at their work stations. OPM believes that these

suggestions are instructive with regard to subpart D. Therefore, OPM

has added to Sec. 734.406 another example which specifies that wearing

partisan political buttons while on duty or displaying partisan

political items in the workplace is prohibited.

An agency commented that Secs. 734.408 and 734.411(a) prohibit the

same behavior, are duplicative and potentially confusing, and should be

combined. Section 734.408 generally prohibits active participation in

political management and campaigns, ``except as permitted by this

part.'' Section 734.411(a) prohibits active participation in managing

the political campaign of a candidate for partisan political or party

office. Section 734.408 covers a broader range of political activities

than Sec. 734.411(a), which prohibits active participation in managing

the political campaign of a candidate for partisan political office or

political party office. Section 734.408 also prohibits activities

described in Secs. 734.409 and 734.410, as well as in the remaining

subsections of Sec. 734.411. Although OPM has not combined

Secs. 734.408 and 734.411(a), OPM believes that the phrase ``except as

permitted by this part'' in Sec. 734.408 is confusing because employees

covered under this section are permitted to

[[Page 35098]]

participate only in the political activities described in subpart D.

Therefore, OPM revised this phrase to include a reference to ``subpart

D'' rather than to ``this part.''

Section 734.412(a) of the interim regulations provides that an

employee covered under subpart D may not be a candidate for partisan

political office except as described in Sec. 734.403 which permits

candidacy in nonpartisan elections. A Federal agency commented that the

exception in Sec. 734.412(a) should be eliminated because it is

meaningless and confusing. OPM agrees with this suggestion; a

nonpartisan election by definition cannot include any candidates for

partisan political office. Therefore, OPM has removed from

Sec. 734.412(a) the reference to Sec. 734.403.

Subpart E--Special Provisions for Certain Presidential Appointees and

Employees Paid From the Appropriation for the Executive Office of the

President

A Federal agency suggested that Sec. 734.502(a)(2)(ii) include

examples of, or a method for determining whether, an employee who is

appointed by the President, by and with the advice and consent of the

Senate, ``determines policies to be pursued by the United States in

relations with foreign powers or in the nationwide administration of

Federal laws.'' OPM cannot devise a precise procedure that would apply

to all positions that might be covered under Sec. 734.502(a)(2)(ii)

because each position has its own unique qualifications and duties. In

view of this, providing examples of covered positions based on

descriptions of their duties and responsibilities would not be of

assistance is deciding whether a position meets the criteria in

Sec. 734.502(a)(2)(ii). Thus, determinations concerning the coverage of

a specific position under Sec. 734.502 must be made on an individual

basis by the President or his appropriate designee.

Section 734.502(d) provides that an employee, to whom subpart E of

part 734 does not apply and who is not on duty, may participate in

political activities in rooms of the White House which are part of the

Residence area or which are not regularly used solely in the discharge

of official duties. In its discussion of the Residence area of the

White House in connection with Sec. 734.101, OPM noted that the same

principles that govern the White House also should apply to the

residence of the Vice President which, historically, has been treated

like the White House. OPM also noted that the same analysis and

conclusions that apply to the White House also apply to the residence

of the Vice President. Therefore, OPM is amending Sec. 734.502(d) to

include the residence of the Vice President.

One Federal agency commented that all Inspectors General, including

those appointed by the heads of designated Federal entities pursuant to

the Inspector General Act of 1978, section 8G, should be prohibited

from taking an active part in political management or political

campaigns. We find no basis for this across-the-board restriction of

all such Inspectors General. Section 3(c) of the Inspector General Act,

which provides that for the purposes of section 7324 of title 5, United

States Code, an Inspector General is not considered to determine

policies to be pursued by the United States in the nationwide

administration of Federal laws, applies only to an Inspector General

who is appointed by the President by and with the advice and consent of

the Senate. Section 8G(c) provides that an Inspector General in a

designated Federal entity is appointed by the head of the designated

Federal entity according to the laws and regulations governing

appointments within that specific designated Federal entity. Therefore,

the treatment Inspectors General, other than those appointed by the

President by and with the advice and consent of the Senate, receive

under the regulations depends on their appointment and the entities in

which they serve.

Use of Official Title, Noncareer Members of the Senior Executive

Service, Use of the Phrase ``in Concert With'' in the Final

Regulations, and Political Signs

Two Federal agencies commented that the treatment of the use of

official title in connection with political activities was not clear.

In response, we have amended Sec. 734.302 to include a prohibition on

the use of official title in connection with any partisan political

activity. However, a form of address, such as ``Honorable'' may be used

on letters, invitations, or when introducing a covered employee at

partisan political functions.

A Federal agency noted that although career Senior Executive

Service (SES) employees are specifically mentioned in Sec. 734.401,

noncareer SES employees are not mentioned in the regulations. Noncareer

SES employees who do not work in the agencies or positions described in

Sec. 734.401 are subject to the provisions of subparts B and C of part

734. OPM has added examples about these noncareer SES employees to the

provisions in subparts B and C to make it clear that they are subject

to the provisions of these subparts. Noncareer SES employees who work

in the agencies or positions described in Sec. 734.401 are subject to

the more restrictive provisions of subpart D of part 734. Examples

regarding noncareer SES employees also have been added to subpart D.

Finally, all career SES employees also are subject to the provisions of

subpart D.

A Federal agency noted that the phrases ``in concert with'' and

``in consultation or coordination with'' both appear in subpart D, and

questioned whether the difference in language signifies any difference

in meaning. Although these phrases were intended to express the same

concept, the use of the two phrases is a source of confusion.

Therefore, OPM has eliminated the phrase ``in consultation or

coordination with'' and exclusively used ``in concert with'' in the

final version of the regulations. OPM relies on the language in

Blaylock v. United States Merit Systems Protection Board, 851 F.2d 1348

(11th Cir. 1988) and Biller v. United States Merit Systems Protection

Board, 863 F.2d 1079 (2d Cir. 1988), which refers to political activity

done ``in concert with'' political parties, partisan groups, or

candidates for public office in partisan elections. See Blaylock v.

United States Merit Systems Protection Board, 851 F.2d at 1354; Biller

v. United States Merit Systems Protection Board, 863 F.2d at 1090-1091.

A Federal agency suggested that an example should be added to the

regulations that clearly permits employees to place partisan political

signs on their property. OPM has added such an example to Sec. 734.205.

In addition, another example in Sec. 734.402 reflects that employees

covered under subpart D also may display partisan political signs on

their property.

Contributions to Political Action Committees Through Voluntary Salary

Allotments

The final regulations also contain new provisions which result from

the issuance, on February 22, 1995, of an opinion by the Office of

Legal Counsel (OLC) at the Department of Justice to the Office of

Personnel Management. The OLC opinion addresses the question of whether

the Reform Amendments prohibit Federal employees from making voluntary

salary allotments to political action committees (PACs). The OLC

initially noted that ``PACs'' are not defined as such under Federal

law. OLC noted further that 26 U.S.C. 9002(9) defined the term

``political committee'' and stated that, for the purposes of its

opinion, ``PAC'' referred only to an organization that came within this

[[Page 35099]]

definition. OPM has incorporated into part 734 the definition of

``PAC'' that OLC used in its opinion. OPM notes that the definition

does not make a distinction between partisan and nonpartisan PACs

because, according to the OLC opinion, donating to a PAC that meets

this definition would be considered political activity within the

meaning of the Reform Amendments.

OLC noted in this regard that political activity includes actions

sufficient to effect the making of a political contribution, such as

taking steps to ensure that part of one's salary is contributed to a

political campaign or a PAC. OLC noted that the OPM interim regulations

on political activity confirmed its view that contributing to political

candidates constitutes political activity within the meaning of the OPM

interim regulations because it is directed toward the success or

failure of a political party, candidate for partisan political office,

or partisan political group. OPM has not revised this definition of

political activity.

Moreover, OLC noted that Congress intended that making

contributions to PACs would be considered political activity under the

terms of the Reform Amendments. It noted that Senator Glenn, the

leading Senate sponsor of the Reform Amendments, referred specifically

to PAC contributions in describing examples of the political activities

that the Reform Amendments would prohibit on duty. See 139 Cong. Rec.

S8929 (daily ed. July 20, 1993). In view of this, OMP believes that it

is not necessary to further refine the OLC definition of PAC. OPM has

added to Sec. 734.101, a definition of the term ``political action

committee'' which tracks the definition of ``political committee'' in

26 U.S.C. 9002(9).

OLC opined that most Federal employees are not barred from using

the salary allotment system to make contributions to PACs. Thus,

Federal employees who are subject to subparts B through D of part 734

are not prohibited from making a voluntary allotment to a PAC.

OLC opined in addition that 5 U.S.C. 7324(a)(1)(4) prohibits

Federal employees from taking steps sufficient to effect the making of

a PAC contribution while they are on duty or in a Federal building.

Thus, employees who are subject to subparts B through D of part 734 are

prohibited from filling out direct-deposit forms for salary allotments

to PACs while they are on duty or in a Federal building, and from

personally delivering such forms to payroll employees who would process

or administer these allotments. OPM has amended Secs. 734,208, 734.306,

734.404, and 734.406 of its regulations to reflect the conclusions

stated on the OLC opinion. OPM also has added to Sec. 734.101, a

definition of the term ``political action committee'' which tracks the

definition of ``political committee'' in 26 U.S.C. 9002(9).

OLC also opined that Federal employees who are identified in 5

U.S.C. 7324(b)(2) may not use the salary allotment system to contribute

money to PACs. Section 7324(b)(2) applies to employees whose duties and

responsibilities ``continue outside normal duty hours and while away

from the normal duty post'' and who are either employees (1) ``paid

from an appropriation for the Executive Office of the President'' or

(2) ``appointed by the President, by and with the advice and consent of

the Senate, whose position(s are) located within the United States in

relations with foreign powers or in the nationwide administration of

Federal laws.'' Such employees are covered under subpart E of OPM's

regulations. OLC opined that in the use of the salary allotment system,

the costs associated with the transfer of contributions to PACs would

be borne by the Federal Government, and 5 U.S.C. 7324(b)(1) of the

Reform Amendments prohibits these employees form engaging in political

activity using ``money derived from the Treasury of the United

States.'' OPM has added to subpart E a new provision that reflects this

prohibition.

Finally, the OLC opinion stressed that 5 U.S.C. 5525, the statutory

provision governing allotment and assignment of pay, as well as the OPM

allotment regulations at 5 CFR 550.311(b), provide that individual

agency heads have the discretion to determine whether eligible

employees of the agency may use the allotment system for particular

purposes, such as making contributions to PACs.

E.O. 12866, Regulatory Review

This rule has been reviewed by the Office of Management and Budget

in accordance with E.O. 12866.

Regulatory Flexibility Act

I certify that these regulations would not have a significant

economic impact on a substantial number of small entities because they

would apply only to Federal agencies and employees.

List of Subjects in 5 CFR Part 734

Political activities (Government employees).

U.S. Office of Personnel Management.

James B. King,

Director.

Accordingly, the Office of Personnel Management interim rule adding

5 CFR part 734, published at 59 FR 48765 on September 23, 1994, is

adopted as a final rule with the following changes:

PART 734--POLITICAL ACTIVITIES OF FEDERAL EMPLOYEES

1. The authority citation for part 734 continues to read as

follows:

Authority: 5 U.S.C. 1103, 1104, 7325; Reorganization Plan No. 2

of 1978, 92 Stat. 3783, 3 CFR 1978 Comp. p. 323; and E.O. 12107, 3

CFR 1978 Comp. p. 264.

2. In Sec. 734.101 the definitions of accept, and receive, are

revised, and the definitions of occasional, political action committee,

recurrent, and room or building occupied in the discharge of official

duties by an individual employed or holding office in the Government of

the United States or any agency thereof are added in alphabetical

order, to read as follows:

Sec. 734.101 Definitions.

* * * * *

Accept means to come into possession of something from a person

officially on behalf of a candidate, a campaign, a political party, or

a partisan political group, but does not include ministerial activities

which precede or follow this official act.

* * * * *

Occasional means occurring infrequently, at irregular intervals,

and according to no fixed or certain scheme; acting or serving for the

occasion or only on particular occasions.

* * * * *

Political Action Committee means any committee, association, or

organization (whether or not incorporated) which accepts contributions

or makes expenditures for the purpose of influencing, or attempting to

influence, the nomination or election of one or more individuals to

Federal, State, or local elective public office.

* * * * *

Receive means to come into possession of something from a person

officially on behalf of a candidate, a campaign, a political party, or

a partisan political group, but does not include ministerial activities

which precede or follow this official act.

Recurrent means occurring frequently, or periodically on a regular

basis.

Room or building occupied in the discharge of official duties by an

individual employed or holding office in the Government of the United

States or

[[Page 35100]]

any agency thereof includes, but is not limited to:

(1) Any Federally owned space (including, but not limited to,

``public buildings'' as defined in 40 U.S.C. 612(1)) or Federally

leased space in which Federal employees perform official duties on a

regular basis;

(2) Public areas as defined in 40 U.S.C. 490(a)(17) and 41 CFR 101-

20.003 of buildings under the custody and control of the General

Services Administration.

(3) A room or building occupied in the discharge of official duties

by an individual employed or holding office in the Government of the

United States or any agency thereof does not include rooms in the White

House, or in the residence of the Vice President, which are part of the

Residence area or which are not regularly used solely in the discharge

of official duties.

3. In Sec. 734.102 paragraphs (a) introductory text and (b) are

revised to read as follows:

Sec. 734.102 Jurisdiction.

(a) The United States Office of Special Counsel has exclusive

authority to investigate allegations of political activity prohibited

by the Hatch Act Reform Amendments of 1993, as implemented by 5 CFR

part 734, prosecute alleged violations before the United States Merit

Systems Protection Board, and render advisory opinions concerning the

applicability of 5 CFR part 734 to the political activity of Federal

employees and employees of the District of Columbia government. (5

U.S.C. 1212 and 1216. Advice concerning the Hatch Act Reform Amendments

may be requested from the Office of Special Counsel:

* * * * *

(b) The Merit Systems Protection Board has exclusive authority to

determine whether a violation of the Hatch Act Reform Amendments of

1993, as implemented by 5 CFR part 734, has occurred and to impose a

minimum penalty of suspension for 30 days and a maximum penalty of

removal for violation of the political activity restrictions regulated

by this part. (5 U.S.C. 1204 and 7326).

* * * * *

4. In Sec. 734.203, Example 2 is added to read as follows:

Sec. 734.203 Participation in nonpartisan activities.

* * * * *

Example 2: An employee, individually or collectively with other

employees, may petition or provide information to Congress as

provided in 5 U.S.C. 7211.

5. In Sec. 734.204, paragraph (f) is added, and Example 2 is

revised, to read as follows:

Sec. 734.204 Participation in political organizations.

* * * * *

(f) Serve as a delegate, alternate, or proxy to a political party

convention.

* * * * *

Example 2: A noncareer member of the Senior Executive Service,

or other employee covered under this subpart, may serve as a vice-

president of a political action committee, as long as the duties of

the office do not involve personal solicitation, acceptance, or

receipt of political contributions. Ministerial activities which

precede or follow the official acceptance and receipt, such as

handling, disbursing, or accounting for contributions are not

covered under the definitions of accept and receive in Sec. 734.101.

Sections 734.208 and 734.303 describe in detail permitted and

prohibited activities which are related to fundraising.

* * * * *

6. In Sec. 734.205, Examples 8 and 9 are added to read as follows:

Sec. 734.205 Participation in political campaigns.

* * * * *

Example 8: While not on duty, a Federal employee may distribute

campaign leaflets by hand to homes or parked cars even though the

leaflet may contain information concerning where to send

contributions among other factual material about a partisan

political candidate. However, should a member of the public stop the

employee and request further information about contributions, the

employee should refer that request to another campaign worker who is

not a Federal employee.

Example 9: An employee may place in his or her front yard a sign

or banner supporting a partisan political candidate.

7. Sec. 734.208, paragraphs (c) and (d) are added, Examples 12 and

13 are added, and Example 4 is revised, to read as follows:

Sec. 734.208 Participation in fundraising.

* * * * *

(c) Subject to the provisions of Sec. 734.306, an employee may make

a financial contribution to a political action committee through a

voluntary allotment made under Sec. 550.311(b) of this chapter, if the

head of the employee's agency permits agency employees to make such

allotments to political action committees.

(d) An employee who is covered under this subpart and is a payroll

official in an agency where employees are permitted to make allotments

to political action committees may process the completed direct deposit

forms for voluntary allotments which have been made to such committees

under section 550.311(b) of this title.

* * * * *

Example 4: When an employee of the Department of Transportation

is not on duty, he or she may engage in activities which do not

require personal solicitations of contributions, such as organizing

mail or phone solicitations for political contributions. Activities

such as stuffing envelopes with requests for political contributions

also are permitted. However, he or she may not sign the solicitation

letter unless the solicitation is for the contribution of

uncompensated volunteer services of individuals who are not

subordinate employees. An employee may not knowingly send to his or

her subordinate employees a letter soliciting the contribution of

their uncompensated services. However, he or she may sign a letter

that solicits contributions of uncompensated volunteer services as

part of a general mass mailing that might reach a subordinate

employee, as long as the mass mailing is not specifically targeted

to his or her subordinate employees.

* * * * *

Example 12: An employee who desires to make a financial

contribution to a political action committee through a voluntary

allotment personally may obtain blank direct deposit forms from his

or her payroll office. However, he or she may not complete the form

while he or she is on duty, on Federal property, or in a Federally

owned or leased vehicle. Moreover, he or she may not personally

deliver his or her completed form, or the completed form of another

employee, to the payroll office. However, the employee may mail his

or her direct deposit form to his or her agency payroll office.

Example 13: Employees who are permitted to solicit, accept, or

receive political contributions under the circumstances described in

Sec. 734.208(b)(4) may not solicit, accept, or receive such

contributions either while they are on duty, or while they are on

Federal premises, or both.

8. Section 734.302 is revised to read as follows:

Sec. 734.302 Use of official authority; prohibition.

(a) An employee may not use his or her official authority or

influence for the purpose of interfering with or affecting the result

of an election.

(b) Activities prohibited by paragraph (a) of this section include,

but are not limited to:

(1) Using his or her official title while participating in

political activity;

(2) Using his or her authority to coerce any person to participate

in political activity; and

(3) Soliciting, accepting, or receiving uncompensated individual

volunteer services from a subordinate for any political purpose.

Example 1: An employee who signs a letter seeking uncompensated

volunteer services from individuals may not identify himself or

[[Page 35101]]

herself by using his or her official title. However, the employee

may use a general form of address, such as ``The Honorable.''

Example 2: A noncareer member of the Senior Executive Service,

or another employee covered by this subpart, may not ask his or her

subordinate employees to provide uncompensated individual volunteer

services for a political party, partisan political group, or

candidate for partisan political office. Moreover, he or she may not

accept or receive such services from a subordinate employee who

offers to donate them.

Example 3: An employee may not require any person to contribute

to a partisan political campaign in order to win a Federal contract:

9. In Sec. 734.306, Example 3 through 13 are revised and 14 through

19 are added to read as follows:

734.306 Participation in political activities while on duty, in

uniform, in any room or building occupied in the discharge of official

duties, or using a Federal vehicle.

* * * * *

Example 3: An employee who uses his or her privately owned

vehicle on a recurrent basis for official business may place a

partisan political bumper sticker on the vehicle, as long as he or

she covers the bumper sticker while the vehicle is being used for

official duties.

Example 4: An employee who uses his or her privately owned

vehicle on official business, must cover any partisan political

bumper sticker while the vehicle is being used for official duties,

if the vehicle is clearly identified as being on official business.

Example 5: A noncareer member of the Senior Executive Service,

or any other employee covered by this subpart, who uses his or her

privately owned vehicle only on an occasional basis to drive to

another Federal agency for a meeting, or to take a training course,

is not required to cover a partisan political bumper sticker on his

or her vehicle.

Example 6: An employee may not place a partisan political bumper

sticker on any Government owned or Government leased vehicle.

Example 7: An employee may place a bumper sticker on his or her

privately owned vehicle and park his or her vehicle in a parking lot

of an agency or instrumentality of the United States Government or

in a non-Federal facility for which the employee receives a subsidy

from his or her employing agency or instrumentality.

Example 8: When an agency or instrumentality of the United

States Government leases offices in a commercial building and that

building includes the headquarters of a candidate for partisan

political office, an employee of that agency or instrumentality may

do volunteer work, when he or she is not on duty, at the candidate's

headquarters and in other areas of the building that have not been

leased by the Government.

Example 9: A Government agency or instrumentality leases all of

the space in a commercial building; employees may not participate in

political activity in the public areas of the leased building.

Example 10: An employee of the National Aeronautics and Space

Administration (NASA) may not engage in political activities while

wearing a NASA flight patch, NASA twenty-year pin or anything with

an official NASA insignia.

Example 11: If a political event begins while an employee is on

duty and continues into the time when he or she is not on duty, the

employee must wait until he or she is not on duty to attend the

event. Alternatively, an employee may request annual leave to attend

the political event when it begins.

Example 12: Officials of labor organizations who have been given

official time to perform representational duties are on duty.

Example 13: An employee may stuff envelopes for a mailing on

behalf of a candidate for partisan political office while the

employee is sitting in the park during his or her lunch period if he

or she is not considered to be on duty during his or her lunch

period.

Example 14: An employee who works at home may engage in

political activities at home when he or she is not in a pay status

or representing the Government in an official capacity.

Example 15: An employee who is appointed by the President by and

with the advice and consent of the Senate (PAS) may attend a

political event with an non-PAS employee whose official duties do

not require accompanying the PAS as long as the non-PAS employee is

not on duty.

Example 16: A noncareer member of the Senior Executive Service,

or any other employee covered by this subpart, may not wear partisan

political buttons or display partisan political pictures, signs,

stickers, or badges while he or she is on duty or at his or her

place of work.

Example 17: An employee may not engage in political activity in

the cafeteria of a Federal building, even if the cafeteria is in

space leased by a contractor.

Example 18: An employee who contributes financially to a

political action committee through a voluntary allotment made under

Sec. 550.311(b) of this title may not complete the direct deposit

forms while he or she is on duty, in a ``room or building'' defined

in Sec. 734.101 or in a Federally owned or leased vehicle.

Example 19: An employee who contributes financially to a

political action committee through a voluntary allotment may not

personally deliver his or her completed direct deposit form, or the

completed direct deposit form of another employee, to the payroll

employees who would process or administer such forms. However, the

employee may mail his or her direct deposit form to his or her

agency payroll office.

10. In Sec. 734.307, Example 1 is revised to read as follows:

Sec. 734.307 Campaigning for a spouse or family member.

* * * * *

Example 1: An employee who is married to a candidate for

partisan political office may attend a fundraiser for his or her

spouse, stand in the receiving line, sit at the head table, and urge

others to vote for his or her spouse. However, the employee may not

personally solicit, accept, or receive contributions of money or the

paid or unpaid services of a business or corporation, or sell or

collect money for tickets to the fundraiser.

* * * * *

11. In Sec. 734.401, paragraphs (a)(14) through (a)(16) are revised

and paragraph (a)(17) is added to read as follows:

Sec. 734.401 Coverage.

(a) * * *

(14) The Central Imagery Office;

(15) Career Senior Executive Service positions described in 5

U.S.C. 3132(a)(4);

(16) Administrative Law Judge positions described in 5 U.S.C. 5372;

(17) Contract Appeals Board Member positions described in 5 U.S.C.

5372a.

* * * * *

12. In Sec. 734.402, paragraph (b) is revised, Examples 4 and 5 are

redesignated as Examples 5 and 6 respectively, newly redesignated

Examples 5 and 6 are revised, and Example 4 is added, to read as

follows:

Sec. 734.402 Expression of an employee's individual opinion.

* * * * *

(b) Display a political picture, sign, sticker, badge, or button,

as long as these items are displayed in accordance with the provisions

of Sec. 734.406;

* * * * *

Example 4: An employee may place in his or her yard a sign

supporting a candidate for partisan political office.

Example 5: An employee may stand outside of a political party

convention with a homemade sign which states his or her individual

opinion that one of the candidates for nomination is the best

qualified candidate.

Example 6: An employee, including a career SES employee, may

wear a button with a partisan political theme when the employee is

not on duty or at his or her place of work.

13. Section 734.404 is revised to read as follows:

Sec. 734.404 Participation in political organizations.

(a) Each employee covered under this subpart retains the right to:

(1) Participate in the nonpartisan activities of a civic,

community, social, labor, or professional organization, or of a similar

organization;

(2) Be a member of a political party or other partisan political

group and participate in its activities to the extent consistent with

other Federal law;

(3) Attend a political convention, rally, fund-raising function, or

other political gathering; and

[[Page 35102]]

(4) Make a financial contribution to a political party, partisan

political group, or to the campaign committee of a candidate for

partisan political office.

(b) Subject to the provisions in Sec. 734.406, an employee covered

under this subpart may make a financial contribution to a political

action committee through a voluntary allotment made under

Sec. 550.311(b) of this chapter if the head of the employee's agency

permits agency employees to make such allotments to political action

committees.

(c) An employee who is covered under this subpart and is a payroll

official in an agency where employees are permitted to make allotments

to political action committees may process the completed direct deposit

forms for voluntary allotments which have been made to such committees

under Sec. 550.311(b) of this chapter.

Example 1: An employee, or a noncareer SES employee who is

subject to subpart D of part 734, may attend a political convention

or rally solely as a spectator. However, the employee and noncareer

SES employee may not participate in demonstrations or parades which

are sponsored by a political party, a partisan political group, or

an individual who is running for nomination to be a candidate for

partisan political office.

Example 2: An employee may attend a political party's annual

barbecue, but he or she may not organize, distribute invitations to,

or sell tickets to the barbecue.

Example 3: An employee who desires to contribute to a political

action committee through an allotment personally may obtain blank

direct deposit forms from his or her payroll office. The employee

may not complete the direct deposit form while he or she is on duty,

on Federal property, or in a Federally owned or leased vehicle. The

employee also may not personally deliver his or her completed direct

deposit form, or the completed direct deposit form of another

employee, to his or her payroll office. However, the employee may

mail the completed form to his or her agency payroll office.

14. In Sec. 734.406, Examples 1 through 8 are added to read as

follows:

Sec. 734.406 Participation in political activities while on duty, in

uniform, in any room or building occupied in the discharge of official

duties, or using a Federal vehicle; prohibition.

* * * * *

Example 1: An employee who uses his or her privately owned

vehicle on a recurrent basis for official business may place a

bumper sticker on the vehicle, as long as he or she covers the

bumper sticker while the vehicle is being used for official duties.

Example 2: An employee who uses his or her privately owned

vehicle on official business, must cover any partisan political

bumper sticker while the vehicle is being used for official duties,

if the vehicle is clearly identified as being on official business.

Example 3: An employee or career SES employee who uses his or

her privately owned vehicle only on an occasional basis to drive to

another Federal agency for a meeting, or to take a training course,

if not required to cover a partisan political bumper sticker on his

or her vehicle.

Example 4: An employee may not place a partisan political bumper

sticker on any Government owned or Government leased vehicle.

Example 5: An employee may place a bumper sticker on his or her

privately owned vehicle and park the vehicle in a parking lot of an

agency or instrumentality of the United States Government or in a

non-Federal facility for which the employee receives a subsidy from

his or her employing agency or instrumentality.

Example 6: An employee, or noncareer SES employee who is subject

to subpart D of this part 734, may not wear partisan political

buttons or display partisan political pictures, signs, stickers, or

badges while he or she is on duty or at his or her place of work.

Example 7: An employee who contributes financially to a

political action committee through a voluntary allotment made under

Sec. 550.311(b) of this title may not complete the direct deposit

forms while he or she is on duty, in a ``room or building'' defined

in Sec. 734.101, or in a Federally owned or leased vehicle.

Example 8: An employee who contributes financially to a

political action committee may not personally deliver his or her

completed direct deposit form, or the completed direct deposit form

of another employee, to the payroll employees who would process or

administer such forms. However, the employee may mail his or her

direct deposit form to his or her agency payroll office.

15. Section 734.408 is revised to read as follows:

Sec. 734.408 Participation in political management and political

campaigning; prohibitions.

An employee covered under this subpart may not take an active part

in political management or in a political campaign, except as permitted

by subpart D of this part.

16. In Sec. 734.412, paragraphs (a), (b), and (c) are revised to

read as follows:

Sec. 734.412 Participation in elections; prohibitions.

(a) Be a candidate for partisan political office;

(b) Act as recorder, watcher, challenger, or similar officer at

polling places in concert with a political party, partisan political

group, or a candidate for partisan political office;

(c) Drive voters to polling places in concert with a political

party, partisan political group, or a candidate for partisan political

office;

17. In Sec. 734.502 paragraph (d) is revised to read as follows:

Sec. 734.502 Participation in political activity while on duty, in

uniform, in any room or building occupied in the discharge of official

duties, or using a Federal vehicle.

* * * * *

(d) An employee, to whom subpart E of this part does not apply, who

is not on duty may participate in political activities in rooms of the

White House or the Residence of the Vice President which are part of

the Residence area or which are not regularly used solely in the

discharge of official duties.

* * * * *

18. Section 734.504 is added to read as follows:

* * * * *

Sec. 734.504 Contributions to political action committees through

voluntary payroll allotments prohibited.

An employee described in Sec. 734.502(a) may not financially

contribute to a political action committee through a voluntary

allotment made under Sec. 550.311(b) of this title.

[FR Doc. 96-17006 Filed 7-3-96; 8:45 am]

BILLING CODE 6325-01-M