Authority for Issuing Hatch Act Regulations

Opinion

Authority for Issuing Hatch Act Regulations

T h e O ffice o f P e rs o n n e l M an a g e m e n t, ra th e r th an th e O ffic e o f S p e c ia l C o u n se l, has th e a u th o rity to p ro m u lg ate re g u la tio n s d e lim itin g th e sco p e a n d n a tu re o f p e rm is sib le a c tiv itie s u n d e r the H atch A c t R efo rm A m e n d m e n ts o f 1993.

February 2, 1994

M e m o r a n d u m O p i n i o n f o r t h e D e p u t y S p e c ia l C o u n s e l O f f ic e o f S p e c i a l C o u n s e l

You have asked whether the Office of Personnel M anagement (“O PM ”) or the Office of Special Counsel (“O SC”) has the authority to promulgate regulations delimiting the scope and nature of impermissible political activities under the Hatch Act Reform Amendments of 1993 (“Hatch Act Amendments”), Pub. L. No. 103-94, sec. 2(a), §§ 7321-7326, 107 Stat. 1001, 1001-1004.' OPM contends that OSC has plenary authority to issue Hatch Act regulations, whereas OPM is em ­ powered to promulgate Hatch Act regulations only on two narrowly-defined sub­ jects.2 OSC, on the other hand, asserts that it lacks authority to promulgate Hatch Act regulations. It contends that OPM historically has been responsible for issuing general Hatch Act regulations and that no provision in the Hatch Act Amendments has reassigned or diminished O PM ’s responsibility in this regard. After examining existing precedent, the statutes outlining the responsibilities of OPM and OSC for implementing the Hatch Act, and the text and legislative history of the Hatch Act Amendments, we conclude that OPM possesses the authority to promulgate regu­ lations explicating the Hatch Act as amended.

I. The Need fo r Revised Hatch A ct Regulations

For more than fifty years, the Hatch Act prohibited federal workers from par­ ticipating in a broad range o f political activities. See U nited Pub. W orkers v. M itchell, 330 U.S. 75, 78-79 (1947); see also U nited States C ivil Serv. C o m m ’n v. N ational A s s ’n o f L etter Carriers, AFL-CIO , 413 U.S. 548 (1973) (upholding Hatch Act provision forbidding federal em ployees to take an active part in political management or political campaigns). In 1993, however, Congress eliminated many of the restrictions that had previously cabined the political activities o f fed­ eral employees. See Hatch Act Amendments, Pub. L. No. 103-94, 107 Stat. 1001

1 Letter for W alter D ellinger, A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, from Jam es A Kahl, D eputy Special C ounsel, U S O ffice o f Special C ounsel (D ec. 28, 1993)

" The position o f O PM is set forth in a letter for W alter D ellinger, A ssistant A ttorney G eneral, O ffice of Legal C ounsel, from Lorraine Lew is, G eneral C ounsel, O ffice o f Personnel M anagem ent (Jan 28, 1994).

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(1993). Despite the steps taken by C ongress to liberalize the rules governing the political conduct o f federal workers, som e political activities remain generally im­ perm issible for all federal employees, see, e.g., id. sec. 2(a), § 7323(a)(2), 107 Stat. at 1002 (prohibiting federal employees from soliciting, accepting, or receiving political contributions), and some federal em ployees must continue to observe stringent lim itations upon involvement in the political process. See, e.g., id sec. 2(a), § 7323(b)(3), 107 Stat. at 1003 (“No employee of the Criminal Division of the D epartm ent o f Justice . . . may take an active part in political managem ent or political cam paigns.”). If a federal employee violates any o f these provisions, which will take effect on February 3, 1994, the employee “shall be removed from his position.” I d sec. 2(a), § 7326, 107 Stat. at 1004. Accordingly, federal em ­ ployees who wish to participate in political activities need immediate guidance in the form o f regulations distinguishing permissible political conduct from impermis­ sible activities.3

II. The Division of Hatch Act Regulatory Responsibility

Until 1978, the Civil Service Commission bore the entire burden of adm inister­ ing the H atch Act. S. Rep. No. 103-57, at 4 (1993), reprin ted in 1993 U .S.C.C.A .N . 1802, 1805. But in passing the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections o f 5 U.S.C.) (“Civil Service Reform Act”), Congress divided the responsibility for im­ plem enting the Hatch A ct into three discrete tasks: the M erit Systems Protection Board (“M SPB ”) was “charged with adjudicating Hatch Act cases,” OPM became “responsible for prom ulgating Hatch Act regulations,” and OSC received the authority “to investigate allegations o f Hatch Act violations and present them to the M SPB .” A m erican F ed'n o f G ov’t E m ployees, AF L-C IO v. O ’Connor, 747 F.2d 748, 753 (D.C. Cir. 1984) (footnotes omitted), cert, denied, 474 U.S. 909 (1985); see a lso S. Rep. No. 95-969, at 24 (1978), reprin ted in 1978 U.S.C.C.A.N. 2723, 2746. In 1989, Congress refined this division of authority by formally separating OSC from the M SPB and independently enum erating the powers and functions of OSC.4 See W histleblow er Protection Act of 1989, Pub. L. No. 101-12, §§ 3(a)(l 1) - ( l 3), 103 Stat. 16, 19-21 (adding 5 U.S.C. §§ 1211-1212, which “established the O ffice o f Special Counsel” as an independent body and set forth the pow ers and functions o f the Office of Special Counsel).

3 In a Jan u a ry 13, 1994, letter concerning Lhe d isp u te at hand. R epresentative W illiam L C lay and Senator Jo h n G len n m ade p recisely this p o in t1 “Given th e dire co n seq u en ces that can result to em ployees w ho vio­ late the H atch A ct, in o u r view it is imperative that Federal e m p loyees be provided tim ely guidance as to w hat c o n stitu tes p erm issib le and im perm issible political activ ity .” L etter for W alter D ellinger, A ssistant A ttorney G en eral, O ffice o f Legal Counsel, from W illiam L C lay, C hairm an, C om m ittee on Post O ffice and C ivil S ervice, an d John G len n , C h airm an , C o m m ittee on G o v ern m ental A ffairs (Jan. 13, 1994)

4 T he C iv il Service R efo rm A ct o f 1978 pro v id ed for a “ Special C ounsel o f the M em System s Protection B o ard " w h o se po w ers w ere d efin ed in conjunction w ith those o f the M SPB See C ivil Service R eform Act, sec. 202 (a), §§ 1204-1208, 92 Stat. at 1122-30

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A uthority f o r Issuing Hatch A ct R egulations

The three-way division of Hatch Act authority now flows from clear statutory pronouncements. See 5 U.S.C. § 1204 (defining powers and functions of the MSPB); 5 U.S.C. § 1212 (setting forth powers and functions of OSC); 5 U.S.C. § 1103 (prescribing functions o f director of OPM). Specifically, the MSPB has authority to hear and adjudicate “all matters within the jurisdiction o f the Board,” 5 U.S.C. § 1204(a)(1), take action to enforce its own orders, id. § 1204(a)(2), “prescribe such regulations as may be necessary for the performance o f its func­ tions,” id. § 1204(h), and review “rules and regulations of the Office o f Personnel M anagem ent.” Id. § 1204(a)(4). This last responsibility, o f course, presupposes that OPM will issue general regulations. See Am erican F e d ’n o f G o v ’t Em ployees, 747 F.2d at 755 (M SPB ’s role includes “the review of Hatch Act regulations promulgated by the O PM ”).

OSC possesses the authority to investigate and prosecute alleged Hatch Act violations, 5 U.S.C. §§ 1212(a), 1215(a), 1504, and “prescribe such regulations as may be necessary to perform the functions of the Special Counsel.”5 Id. § 1212(e). The regulations issued by OSC are not subject to oversight by the M SPB. S ee 5 U.S.C. § 1204. OSC also has the power to issue advisory opinions on Hatch Act questions, id. § 1212(f), but these advisory opinions have no binding effect on the MSPB. See Am erican F e d ’n o f G o v ’t Em ployees, 747 F.2d at 752-55 (explaining the nature and effect of “the advice the Special Counsel is permitted to give”).

OPM derives its authority over personnel management from two sources. First, specific responsibilities are vested in the Director of OPM by 5 U.S.C. § 1103, including the obligation to “publish in the Federal Register general notice of any rule or regulation which is proposed by [OPM] and the application of which does not apply solely to [OPM] or its employees.” Id. § 1 103(b)(1). Second, the D i­ rector of OPM is empowered to assume “authority for personnel m anagement functions” delegated by the President.6 Id. § 1104(a)(1). The Director o f OPM

5 OPM a ss e n s that this provision em pow ers O SC to issue H atch Act regulations Both the M SPB and O SC have been granted the basic authority to prescribe all regulations necessary to perform th eir functions Indeed, the language o f the statutes vesting this fundam ental operational authority in the M SPB and O SC is virtually identical C om pare 5 U S C § 1204(h) (“The [M erit System s Protection] Board shall have the authority to prescribe such regulations as may be necessary for the perform ance o f its functions ") w ith 5 U S C § 1212(e) ("T he Special Counsel m ay prescribe such regulations as m ay be necessary to perform the functions o f the Special C o u n s e l.') T he sim ilarity in the language o f these tw o statutes underm ines O P M 's claim that 5 U S C 1212(e) confers upon O SC the pow er to issue H atch A ct regulations and bolsters O S C 's in terpretation o f 5 U S.C § 1212(e) as a sim ple assignm ent o f the authority to prom ulgate the reg u la­ tions necessary to run O SC itself. Indeed, if OPM is correct in interpreting 5 U S C § 1212(e) as sufficiently capacious to accom m odate the function o f issuing H atch Act regulations, then the M SPB sim ilarly possesses plenary authority to prom ulgate Hatch A ct regulations under the virtually identical language o f 5 U S C b 1204(h) The m ore logical interpretation dictates that the M SPB and O SC have been granted nothing more than the authority to issue all regulations that they deem necessary for their ow n internal operations 6 The D irecto r o f O PM also derives residual authority from section 102 o f the P resident's R eorganization Plan o f 1978, w hich transferred to the D irector o f O PM “all functions vested by statute in the U nited States Civil Service C om m ission' that were not expressly assigned to any other entity Reorg Plan N o. 2 o f 1978, 3 C .F R 323 (1979), rep rin ted in 5 U S.C. $ 1101 note, a n d in 92 Stat 3783, s e e also A m erica n F ed'ti oj G o v 't E m p lo yees, 747 F 2d at 753 n 13 (identifying P resid en t’s R eorganization Plan as source o f O PM authority)

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may, in turn, delegate to the heads o f executive branch agencies “any function vested in or delegated to the Director [of O PM ],” id. § 1104(a)(2), but this broad authority to delegate cannot “be construed as affecting the responsibility o f the Director [of OPM] to prescribe regulations and to ensure compliance with the civil service laws, rules, and regulations.” Id. § 1104(b)(3).

The statutory provisions apportioning the power once held exclusively by the Civil Service Com mission clearly authorize OPM to issue general regulations un­ der the H atch Act. C onsistent with these statutes, OPM revised the existing Hatch A ct regulations on April 24, 1984. S ee Political Activity of Federal Employees, 49 Fed. Reg. 17,431, 17,432-33 (1984) (am endments codified at 5 C.F.R. §§ 733.101(g)-(j), 7 3 3 .122(b)(12)-(16)( 1993)). OPM rejected an attack upon its authority to issue Hatch Act regulations by em phatically stating that “OPM be­ lieves that it does have the authority to regulate the partisan political activity of Federal em ployees.”7 Id. at 17,431. Although OPM now argues that it lacks authority to undertake such a task, the tripartite system of Hatch Act implementa­ tion — including the statutory language setting up the division of labor — cuts against O P M ’s position. The MSPB has been assigned the task of reviewing “rules and regulations o f the Office of Personnel M anagem ent,” 5 U.S.C. § 1204(a)(4), yet the statute outlining the powers and functions o f the MSPB contains no corre­ sponding assignm ent of responsibility for screening regulations promulgated by OSC. S ee 5 U.S.C. § 1204. Instead, O SC gives advice in the form of opinions that have no binding effect on the MSPB. Id. § 1212(0- As the D.C. Circuit has ex­ plained, these interrelated statutes provide the M SPB with oversight authority “in the review o f Hatch Act regulations prom ulgated by the OPM ,” Am erican F e d ’n o f G o v ’t E m p lo yees , 747 F.2d at 755, w hile insulating the MSPB from any concern about the myriad non-binding OSC advisory opinions that “offer essentially a fore­ cast, albeit an educated one, of the w ay the M SPB would rule if an actual case m aterialized.” Id. at 753-54.

III. Congressional Ratification o f OPM’s Role

The regim e dividing the responsibility for Hatch A ct implementation into three discrete tasks rem ained in place w hile Congress formulated the Hatch Act A m endm ents, and apparently informed congressional debate concerning the allo­ cation o f regulatory responsibility. See, e.g., 139 Cong. Rec. S8610 (daily ed. July 13, 1993) (statem ent of Senator R oth indicating that, in lieu of congressional am endm ent o f the Hatch Act, “the O ffice o f Personnel Management, in consulta­ tion with the Office of Special Counsel as well as the Department of Justice, should prom ulgate new regulations to clarify the restrictions on political activity”). In

7 O PM c u ed the fo llo w in g authorities to su p p o rt its revision o f 5 C .F R. pt. 733: “5 U .S .C 3301, 3302, 7301, 7 3 2 1 , 7 3 2 2 , 7323, 7324, 7325, and 7327; R eorganization Plan No. 2 o f 1978, 3 C FR 1978 C om p p.323, an d E.O . 12107, 3 C F R 1978 Com p, p.264 ” See 4 9 Fed R eg. at 17,432.

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A u th o rity f a r Issuing H atch A ct R egulations

fact, while the Hatch Act Amendments wended their way through Congress, OPM expressly acknowledged its obligation to issue Hatch Act regulations: on April 26, 1993, OPM reported in its semiannual regulatory agenda that it intended to review the existing regulations regarding political activity of federal employees. See Of­ fice of Personnel M anagement Semiannual Regulatory Agenda, 58 Fed. Reg. 25,163, 25,169 (1993). In adopting the Hatch Act Amendments, which include no provision reassigning any regulatory functions among the MSPB, OSC, and OPM, Congress ratified the roles historically adopted by the three agencies/ The legislative history of the Hatch Act Amendments fortifies the conclusion that Congress approved of O PM ’s traditional obligation to issue Hatch Act regula­ tions. At the inception of the process to amend the Hatch Act during the 103d Congress, the House of Representatives broke with settled practice by assigning to the Special Counsel the obligation to “prescribe any rules and regulations neces­ sary to carry out” the Hatch Act amendments. H.R. 20, 103d Cong., § 2(a) (1993) (proposed version o f 5 U.S.C. § 7327 published at 139 Cong. Rec. 3983 (1993)). The Senate, in contrast, passed a bill striking out the entire House bill — including the assignment of rule-making authority to the Special Counsel — and adding pro­ visions that authorized OPM to prescribe regulations for certain conduct. 139 Cong. Rec. S9169, S 9 170-71 (daily ed. July 21, 1993). The House ultimately ac­ ceded to the Senate version of the Hatch Act reform bill, including the provisions assigning the responsibility for issuing various regulations to OPM. Id. at H6814, H6815-16 (daily ed. Sept. 21, 1993).

The tripartite system of Hatch Act implementation created in 1978 has not been altered by the Hatch Act Amendments, which assign to OPM the authority to pre­ scribe regulations on two specific subjects in language that treats OPM as the agency with plenary authority to issue Hatch Act regulations. See Hatch Act Amendments, sec. 2(a), § 7325, 107 Stat. at 1004 (“The Office of Personnel M an­ agement may prescribe regulations permitting em ployees” in certain geographic areas “to take an active part in political management and political campaigns in­ volving the municipality or other political subdivision in which they reside.”); id. sec. 8(a), § 3303(e), 107 Stat. at 1007 (“Under regulations prescribed by the Office of Personnel Management, the head o f each agency shall ensure that employees and applicants are given notice of the provisions of this section” pertaining to po­ litical recommendations.). In contrast, the Hatch Act Amendments mention OSC only in the context of broadening the investigative authority of the Special Coun­ sel. See id. sec. 3, § 1216(c), 107 Stat. at 1004. These provisions prompted the Congressional Budget Office to observe that “[t]he bill would require the Office of Personnel M anagement (OPM) to issue the necessary regulations and the Office of Special Counsel to enforce these regulations.” S. Rep. No. 103-57 at 22, reprin ted in 1993 U.S.C.C.A.N. at 1823. We agree with this assessment.

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IV. Conclusion

Since 1978, OPM has assumed the responsibility for promulgating Hatch Act regulations. The Hatch Act Amendments ratified and supplemented O PM ’s authority to issue general Hatch Act regulations, while concomitantly reaffirming and augm enting O S C ’s traditional role in investigating and prosecuting Hatch Act violations. A ccordingly, we conclude that OPM has the authority to promulgate revised Hatch Act regulations.

W ALTER DELLINGER A ssista n t A ttorney G eneral Office o f L egal Counsel