Right around the time of the 2018 elections, the federal Office of Special Counsel issued new guidance for federal employees and their use of speech around the office that might put them afoul of the Hatch Act’s prohibitions against political activity in the workplace. The guidance clearly seemed directed at ongoing fighting over the presidency of Donald Trump and discouraged the use of the terms “impeachment” and “resist” or “the resistance” while on the job. One of the larger unions representing federal workers, the American Federation of Government Employees (AFGE), went to court to challenge the OSC’s authority to regulate such speech. Last week the court came back with a ruling and said that they could not derail the OSC’s decision. It was a sad day in Resistanceland, my friends. (Government Executive)
Earlier this week, a district court dismissed a federal employee union’s lawsuit that claimed the Office of Special Counsel’s guidance on using the terms “impeachment” and “resist” at work violated free speech protections and was a misinterpretation of the Hatch Act.
Last August, the American Federation of Government Employees filed a complaint in the U.S. District Court for the District of Maryland arguing that OSC does not have the authority to determine what is and isn’t a violation of the Hatch Act, which limits federal employees’ political activity while on the job. The union asked the court to seek an injunction against enforcement of OSC’s 2018 guidance.
The first thing to note about this decision is that the U.S. District Court in Maryland didn’t actually rule for or against the OSC or the plaintiffs here. What the decision actually says is that the case is “not ripe for judicial review.” What that essentially means is that the plaintiffs are challenging the guidance before any demonstrable harm can be shown to have come from it. In order for the AFGE to claim standing in the case, one of its workers would probably need to have violated the guidance and suffered some form of retribution as a result. That could come in the form of dismissal, a denial of promotion or even an official reprimand. That hasn’t happened yet, so the court simply passed on making a ruling.
As a result, the case could be resurrected if they can find a federal worker to start yammering about impeachment or the #RESIST movement until their supervisor decides to have a word with them about it. But then the circus will start all over again and it will likely be a couple of years before any result would be known. It’s still possible that Trump could be out of office then, so the entire matter would largely become moot.
Still, if I’m to be honest here, those guidelines seem to be more than a bit on the harsh side, and I say that as someone who is obviously not a part of the Resistance. The Hatch Act is pretty specific in identifying the types of behavior that qualify as “political action” in the workplace. You can’t engage in actual campaigning, fundraising or similar activities in the workplace and/or using government property. But exceptions have traditionally been made when it comes to employees gabbing about politics around the watercooler or when they’re on break.
Sending emails about political matters using the restricted terms could certainly get you in trouble under the Hatch Act if you’re using your employer’s computer and official email accounts. But just talking about it with coworkers? Banning the word “impeachment” entirely sounds like a massive overreach because that could apply to any number of people or hypothetical situations. The same goes for the word “resistance.” But even if you stood there by the coffee machine and proudly declared to your colleague that you were part of the resistance movement against Trump, that sounds like it falls far short of the bar in terms of actual “political activity” at the office.
It seems unwise to crack down too far on the free speech – particularly political speech – of government workers in apparent defense of the current president. Sooner or later a new president will come along and put their own people in charge at the OSC. And then the shoe will be on the other foot.