On Tuesday, the American Federation of Government Employees and AFGE Local 2578, represented by American Oversight, sued the Office of Special Counsel (OSC) to protect the First Amendment rights of federal employees.
The suit follows guidance issued by OSC on Nov. 27, 2018, on the Hatch Act, the federal law that prohibits government employees from engaging in partisan political activity while at work. The new guidance presumptively restricts federal employees from expressing any opinion on “impeachment” or policy matters if the words “#resist” or “resistance” are used.
“This suit is about protecting federal employees from political retribution in the workplace,” said AFGE National President J. David Cox Sr. “OSC’s vague, overbroad guidance creates an opening for managers and political appointees to go after career civil servants for politically motivated reasons. In fact, the guidance is so broad, an employee could even be guilty of violations if they voice support for the president’s policies. It’s one more example of the ways this administration is eroding institutional norms and attacking merit protections for public employees.”
The guidance purports to describe how the requirements of the Hatch Act apply to impeachment or “resistance,” and effectively made discussing either impeachment or resistance presumptively illegal for federal employees, opening them to potential discipline.
Following swift public pushback, including a letter from American Oversight, OSC issued a clarification of its initial position on Nov. 30, 2018, but made no meaningful change to the troubling substance of the guidance, compounding the concerns of government watchdogs, unions, and the public.
“The members of Local 2578 work every day at the National Archives to preserve and provide public access to the records of our democracy,” said Ashby Crowder, president of Local 2578. “This opinion is an extreme and unprecedented interpretation of the Hatch Act that violates federal employees’ first amendment rights. The chilling effect it has on the workplace deserves to be challenged.”
The suit filed today by AFGE, represented by attorneys from the law firm Arnold & Porter LLP and American Oversight, seeks to compel the OSC to rescind the November 2018 guidance and enforce the Hatch Act without violating the statutory and constitutional rights of federal employees. AFGE is the largest federal employee union, representing 700,000 workers in the federal government and the government of the District of Columbia.
“Government employees have a right to say whether they believe the president, or any official, has committed a crime and a duty to speak up if they see waste, fraud, or abuse,” said Austin Evers, executive director of American Oversight. “By equating conscientious objections grounded in the Constitution with partisan political activity, the OSC’s guidance has achieved a result it was created to avoid — it makes public service political and undermines the guardrails of good government.”
“Federal employees have the same First Amendment rights as every other citizen to speak out about matters of public concern, and there are no greater matters of public concern than whether the President is fit to remain in office and whether his Administration’s policies serve the best interests of the country,” said Daniel Jacobson, senior associate at Arnold & Porter LLP. “The OSC badly misconstrued the Hatch Act in saying that the law prohibits federal employees from expressing opinions on such matters.”
The complaint is below: