AFGE sues OSC over Hatch Act guidance on ‘resistance,’ impeachment talk in federal workplace

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The American Federation of Government Employees is suing the Office of Special Counsel over Hatch Act guidance the agency released late last year.

The union argued OSC’s guidance, which advises federal employees against displaying slogans or advocating or opposing activities to impeach or resist President Donald Trump, violates First Amendment rights.

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Attorneys with the progressive organization American Oversight and law firm Arnold and Porter have filed the lawsuit in the U.S. District Court for the District of Maryland on behalf of AFGE. Their lawsuit seeks to compel OSC to rescind the Hatch Act guidance.

In general, the Hatch Act limits federal employees from engaging in certain political activities in their official capacity as public servants. It doesn’t, as OSC has detailed on its website and AFGE described in its lawsuit, prohibit federal employees from discussing current events or policy issues. OSC, as an independent agency, enforces the Hatch Act.

AFGE argued OSC’s guidance “badly misconstrued the text and purposes of the Hatch Act,” according to the union’s complaint.

The guidance in question, which OSC first issued on Nov. 27, 2018 and followed up with clarifying guidance three days later, is a response to numerous questions from federal employees who have asked about the display of “#resist” or advocating or opposing the impeachment of the president, the agency said.

The guidance only applies to federal employees while they’re on duty at their official work sites and doesn’t prohibit employees from engaging in such activities while they’re away from the workplace or off duty, OSC said.

The agency said it never intended to completely prohibit all discussions of impeachment in the federal workplace. Employees could, for example, discuss the topic as long as they’re not advocating for the impeachment of a specific candidate, OSC said.

“An employee may not, however, display in his or her office a poster that states ‘#Impeach45’ or place a ‘Don’t Impeach Trump’ bumper sticker on a government-owned vehicle because such conduct advocates for or against the impeachment of a candidate for federal office,” OSC’s clarifying guidance reads.

Federal employees also may not wear, distribute or display items from Trump’s 2016 or 2020 campaigns, like a “Make American Great Again” hat or #MAGA bumper sticker, OSC said.

AFGE, however, sees OSC’s guidance as a violation of federal employees’ First Amendment rights.

“OSC’s guidance regarding speech about impeachment improperly equates advocating for impeachment with an activity directed toward the success or failure of a candidate for partisan political office,” the lawsuit reads. “Expressing a view on whether an elected official’s conduct warrants impeachment is not the same an engaging in partisan activities to support or oppose a candidate in an election.”

OSC’s opinion is misguided, AFGE and its attorneys argued, because the agency can’t assume that a federal employee who advocates for or against impeachment is also supportive of the president’s failure to win re-election.

In addition, the union argues words such as “resistance” or “impeachment” don’t necessarily hold political connotations.

OSC, however has a different interpretation.

“OSC considered that ‘#resist’ and ‘the Resistance’ have become slogans of political parties and partisan political groups, including in their efforts to oppose President Trump’s reelection,” the agency wrote in its Nov. 30 clarification, which cited examples from the Democratic National Committee. “Similar slogans used by the Republican National Committee or other partisan political groups would raise the same concerns.”

OSC’s prohibition on “MAGA” items in the federal workplace, AFGE argued, is entirely different from its determination on “#resist” or “the Resistance,” the union also argued. “Make America Great Again” is a campaign slogan, AFGE said, and other political parties besides the Democratic Party have deployed the term “resist” for their own purposes.

In general, federal employees who have been found guilty of Hatch Act violations can be fired, suspended or may receive some other disciplinary action.

“This suit is about protecting federal employees from political retribution in the workplace,” AFGE National President J. David Cox said Tuesday in a statement. “OSC’s vague, overbroad guidance creates an opening for managers and political appointees to go after career civil servants for politically motivated reasons.”

AFGE’s lawsuit follows concerns from at least one member of Congress. House Oversight and Reform Committee Chairman Elijah Cummings (D-Md.) in December asked Special Counsel Henry Kerner to rescind the original Nov. 27 guidance.

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