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President - Campaign Executive Branch Officials Participation (3)
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President - Campaign Executive Branch Officials Participation (3)
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Philip W. Buchen Files
Philip Buchen's General Subject Files
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Hatch Act, 1939
Presidential campaign, 1976
Executive departments
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The original documents are located in Box 44, folder "President - Campaign Executive
Branch Officials Participation (3)" of the Philip Buchen Files at the Gerald R. Ford
Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 44 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
NOTES
CABINET BRIEFING
JULY 16, 1975
Restrictions on Political Participation
by Executive Branch Officials and Employees
I.
Purpose: To familiarize department heads with provisions
of Federal law which may impact on their official duties during
the course of the 1976 Presidential campaign.
A. Campaign Reform Act: The Act imposes a number
of restrictions on campaign management; e.g.,
reporting requirements, contribution limits, spending
limitations, which are a principal focus of the
Republican National Committee and the President's
political committee. By and large, however, these
restrictions on campaign management are not central
to the concerns of Presidential appointees within the
Executive Branch that they not run afoul of Federal
law during the 1976 election.
B. Restrictions on officers and employees: Federal law
contains a number of restrictions on the conduct of
Federal officials and employees relevant to the
STATE THE
-2-
political process. Many of these provisions
operate as direct restraints on Presidential
appointees. Others operate indirectly to the
extent that they limit the ability of appointees to
direct action by career civil servants and others
who are precluded from engaging in the political
process.
C. Cautionary Note: It is the responsibility of
Government lawyers to alert officials and employees
of legal restrictions which may restrict official
activities. Legal questions which relate to
political management, on the other hand, are
within the exclusive province of the political
committees. Hopefully, this briefing will alert
you to the general nature of the first category of
questions and lead you to convince yourself of the
propriety of any official action before it is taken.
[Chart #1]
II. Relevant Provisions of Law: This chart outlines the basic
architecture of current law.
FORD
-3- -
A. Criminal Sanctions: Chapter 29 of Title 18 of
the United States Code contains a series of
provisions of general applicability. As you will
see later, these prohibitions relate to the improper
use of Government office, funds or premises and
to improper aspects of political fund raising.
B. Civil Restrictions: Civil restrictions imposed by
current law derive from two sources: (1) The so-
called "Hatch Act" and implementing regulations
which are found in Title 5 of the United States Code;
and Volume 5 of the Code of Federal Regulations,
and (2) Executive Order 11222.
The Hatch Act and implementing regulations are
applicable to all but three classes of employees
and officials --
White House personnel -- I might note,
however, that since this exception tracks
budget authority, it does not include other
offices within the Executive Office of the
President such as the Domestic Council.
BERALD LIBRARY ? FORD
-4-
Heads and assistant heads of military
and civilian departments within the
Executive Branch.
Presidential appointees who have obtained
the advice and consent of the Senate.
Two points should be made with respect to the
effect of the Hatch Act. First, it covers not only
career civil servants but also so-called "Schedule C"
positions which are filled without regard to normal
Civil Service requirements -- thus, the personal
staffs of Cabinet members and other appointees
are, as they say in the trade, "hatched".
Secondly, although the Hatch Act does not directly
limit the activities of top-level Executive Branch
officials, it does impose limitations on the way you
relate to the personnel within your departments and
agencies.
E.O. 11222 applies to all officials and employees
regardless of status under the Hatch Act and generally
prohibits any preferential treatment on behalf of outside
organizations or persons and the use of Federal property
for non-official activities.
GERALD FORD
-5-
[Chart #2]
III. Federal Crimes: This chart outlines certain Federal crimes
which are relevant to our discussions. Several of these offenses
can be a trap for the unwary.
Contributions are prohibited among Government employees.
Thus, it is a crime for any official or employee to solicit a
contribution from another official or employee. Similarly, the
transfer of political funds between such officials or employees
is also proscribed.
It is a crime to solicit or receive any contribution in any room
or building occupied by a Government official or employee.
The term "contribution" can have various meanings within these
statutes. An original donation of funds always qualifies. In some
instances, subsequent transfers are also "contributions" within
the terms of these sanctions.
Relative to the use of office for partisan political purpose,
three separate crimes are set forth in chapter 29 --
Solicitation or receipt of anything of value
in return for a promise to secure appointive
office.
FORD - LIBRARY STATE
-6-
Promising employment as consideration
or reward for political activity.
Discrimination by one Federal employee
in favor or against another employee on
account of political contributions.
It is a Federal crime for corporations, unions or government
contractors to contribute to a Federal election campaign.
It is a Federal crime to distribute written or printed campaign
material relating to a candidate which does not identify its source.
It is a Federal crime to make a campaign contribution in the
name of another or to permit one's name to be used to effect
such a contribution.
The use of official funds for political purposes could run
afoul of several statutes.
[Chart #3]
IV. Civil Restrictions: As noted earlier, the Hatch Act applies
to all officials and employees who are not expressly exempted.
A.
Effect of Hatch Act: The Act prohibits Federal employees
covered from participating in any way in the process of
electing Federal office-holders. By way of example,
you may not ask employees to --
BETALO k. FORD LIBRARY
-7-
1.
attend partisan political functions
2.
volunteer for partisan political activity
3.
make political contributions
4.
distribute political literature
5.
wear political buttons
6.
assist with political correspondence
7.
help with arrangements for political events
8.
write political speeches
9.
do errands of a political nature
B.
Scope of Coverage: These restrictions apply --
1.
to part-time and full-time employees
2.
to career and Schedule C employees
3.
during business and private hours
4.
during any leave or furlough
[Chart #4]
V. Illustrative Problem Areas: During the upcoming months, you
will be confronted by problems that may fall into the gray areas
of current law.
A.
Receipt of contributions: In the event a contribution is
forwarded to your office by some well-meaning Republican,
it should of course be returned rather than forwarded to
the election committee.
DERALD ANVUSIT TOTAL
-8-
B.
Use of government materials, facilities and privileges:
In returning a contribution, it would be appropriate to
utilize departmental stationary and the franking privilege
since it is your duty to return the contribution. However,
many other situations will not be so clear.
C.
Personal Staff: Beware of the use of your staff assistants
and secretaries for partisan political activity.
D.
Travel: The question of whether all or some portion
of a trip is political in nature to be paid from political
funds can be a close one. In some instances, it will also
be difficult to apportion costs or compute the values of
services to be reimbursed.
E.
Appearances: This presentation has focused on the bare
bones of Federal law. Obviously, questions of appearance
are as important as narrow technical interpretations of the
law.
F.
Traditionally non-political offices: The three Cabinet
members who traditionally have been held outside the
political process will face particularly difficult problems
in avoiding appearances of misuse of office.
h. FORD LIBERTY
- -9-
VI. Close: A memorandum is available treating these matters in
much greater detail. Close questions should always be referred
to counsel. We stand ready to be of any assistance that might
be necessary.
V. VORD LIBERTY
against Barry
THE WHITE HOUSE
WASHINGTON
July 21, 1975
MEMORANDUM FOR:
PHIL BUCHEN
THRU:
MAX L. FRIEDERSDORF m .6.
VERN LOEN VC
FROM:
CHARLES LEPPERT, JR Gign
SUBJECT:
H.R. 8617 - Federal Employees' Political
Activities Act of 1975.
Attached per your request is a copy of H.R. 8617, the Federal Employees'
Political Activities Act of 1975.
Please note that page 2, line 9 defines "employee" to include the "President" and
the "Vice President."
FREE 3 LIBRARY
94TH CONGRESS
1ST SESSION
H. R. 8617
IN THE HOUSE OF REPRESENTATIVES
JULY 14, 1975
Mr. CLAY (for himself, Mrs. SPELLMAN, Mr. SOLARZ, Mr. CHARLES H. WILSON
of California, Mr. HARRIS, and Mrs. SCHROEDER) introduced the following
bill; which was referred to the Committee on Post Office and Civil Service
A BILL
To restore to Federal civilian and Postal Service employees
their rights to participate voluntarily, as private citizens,
in the political processes of the Nation, to protect such em-
ployees from improper political solicitations, and for other
purposes.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Federal Employees'
4 Political Activities Act of 1975".
5
SEC. 2. (a) Subchapter III of chapter 73 of title 5,
6 United States Code, is amended to read as follows:
1. FORD LIBRARY
I
3
2
"
1
"SUBCHAPTER III-POLITICAL ACTIVITIES
1
(B) received political contributions or made
2
expenditures, or has given consent for any other
2
"§ 7321. Political participation
3
"It is the policy of the Congress that employees should
person to receive political contributions or make ex-
3
4
4 be encouraged to fully exercise, to the extent not expressly
penditures, with a view to bringing about such indi-
5
vidual's nomination for election, or election, to such
5 prohibited by law, their rights of voluntary participation in
6
office;
6 the political processes of our Nation.
7
(3) 'political contribution'-
7 "§ 7322. Definitions
8
" (A) means a gift, subscription, loan, advange,
8
"For the purpose of this subchapter-
9
9
(1) 'employee' means any individual, including
or deposit of money or anything of value, made for
10
10
the President and the Vice President, employed or
the purpose of influencing the nomination for elec-
11
tion, or election, of any individual to elective office
11
holding office in-
12
or for the purpose of otherwise influencing the re-
12
(A) an Executive agency,
13
" (B) the government of the District of
sults of any election;
13
14
(B) includes a contract, promise, or agree-
14
Columbia,
15
ment, express or implied, whether or not legally
15
(C) the competitive service, or
16
16 (D) the United States Postal Service or the
enforceable, to make a political contribution for any
17
such purpose; and
17
Postal Rate Commission;
18
18
but does not include a member of the uniformed services;
(C) includes the payment by any person,
19
(2) 'candidate' means any individual who seeks
other than a candidate or a political organization,
19
20
nomination for election, or election, to any elective office,
of compensation for the personal services of another
20
21
21
whether or not such individual is elected, and, for the
person which are rendered to such candidate or po-
22
litical organization without charge for any such
22
purpose of this paragraph, an individual shall be deemed
23
23
to seek nomination for election, or election, to an elective
purpose;
24
(4) 'superior' means an employee (other than the
24
office, if such individual has-
25
President or the Vice President) who exercises super-
25
"(A) taken the action required to qualify for
26
nomination for election, or election, or
4
5
"
1
vision of, or control or administrative direction over,
1
(C) any person to engage, or not to engage,
another employee;
2
2
in any form of political activity whether or not such
3
(5) 'elective office' means any elective public
3
activity is prohibited by law.
office and any elective office of any political party or
4
4
" (b) For purposes of subsection (a) of this section, 'use
5
affiliated organization; and
5 of official authority or influence' includes, but is not limited
6
" (6) 'Board' means the Board on Political Activi-
6 to, promising to confer or conferring any benefit (such
7
ties of Federal Employees established under section 7327
7 as appointment, promotion, compensation, grant, contract,
8
of this title.
8 license, or ruling) or effecting or threatening to effect any
9
"§ 7323. Use of official authority or influence; prohibition
9 reprisal (such as deprivation of appointment, promotion,
10
(a) An employee may not directly or indirectly use or
10 compensation, grant, contract, license, or ruling).
11 attempt to use the official authority or influence of such em-
11 "§ 7324. Solicitation; prohibition
12 ployee for the purpose of-
12
"An employee may not-
" (1) interfering with or affecting the result of any
13
"
13
(1) give or offer to give a political contribution
14
election; or
14
to any individual either to vote or refrain from voting,
15
"
(2) intimidating, threatening, coercing, command-
15
or to vote for or against any candidate or measure, in
16
ing, influencing, or attempting to intimidate, threaten,
16
any election;
17
coerce, command, or influence-
17
" (2) solicit, accept, or receive a political contribu-
18
" (A) any individual for the purpose of inter-
18
tion to vote or refrain from voting, or to vote for or
19
fering with the right of any individual to vote as
19
against any candidate or measure, in any election;
20
such individual may choose, or of causing any indi-
20
(3) knowingly give or hand over a political con-
21
vidual to vote, or not to vote, for any candidate or
21
tribution to a superior of such employee; or
22
measure;
22
" (4) knowingly solicit, accept, or receive, or be in
23
" (B) any person to give or withhold any politi-
23
any manner concerned with soliciting, accepting, or
24
cal contribution; or
24
receiving, a political contribution-
25
" (A) from another employee (or a member
NOT FOR RELEASE
H.R. 8617
THE FEDERAL EMPLOYEES' POLITICAL ACTIVITIES ACT OF 1975
OPENING STATEMENT BY MR. CLAY
MR. CHAIRMAN, I move that the Committee take up and consider
the bill, H.R. 8617, and that it be open for amendments at any
point.
MR. CHAIRMAN, H.R. 8617, the Federal Employees' Political
Activities Act of 1975, was reported by the Subcommittee on
FORD
Employee Political Rights and Intergovernmental Programs as a
"clean bill" on July 10, 1975.
LIQUARY
Earlier, the Subcommittee conducted eleven days of hearings
and received testimony from over one hundred witnesses in Washington
and six other cities across the nation. Testimony in support of
H.R. 3000, which I introduced earlier this year with the
co-sponsorship of 64 of my colleagues, was overwhelmingly in support
of this legislation. There were however, a number of recommendations
for the strengthening of H.R. 3000 and related legislation which
the Subcommittee has incorporated into the "clean bill", H.R. 8617.
MR. CHAIRMAN, the Hatch Act was enacted in an effort to protect
federal employees from improper involvement in partisan political
activities. Previous studies, public hearings, and staff surveys
reveal no evidence that voluntary political activity in any way
erodes the merit system or operates against the public interest.
Yet, existing law, which actually consists of over 3000 administra-
tive regulations, is vague, overly broad and infringes upon the
rights of every American to participate fully in the political life
of this nation.
H.R. 8617, takes these realities into consideration. It pro-
hibits those involuntary political activities which tend to erode
-'2-
public confidence in the integrity of the merit system. It estab-
lishes an independent Board to adjudicate alleged violations. It
gives the Commission strengthened authority for investigating
alleged violations. It provides due process and judicial review
for federal employees.
The major provisions of the Subcommittee bill follow:
*States that federal employees are encouraged to exercise
their right of voluntary political participation.
*Prohibits the use of official authority, influence, or
coercion with the right to vote, not to vote or to other-
wise engage in political activity.
*Prohibits use of funds to influence votes; solicitation of
political contributions by superior officials; and making
political contributions in government rooms or buildings.
*Prohibits political activity while on duty, in federal
buildings, or in uniform.
*Provides leave for candidates for elective office.
*Establishes an independent Board on Political Activities
of Government Personnel whose function is to hear and
adjudicate alleged violations of law.
*Authorizes the Civil Service Commission to investigate
alleged violations of law and provides for subpena
authority, due process, and judicial review of adverse
decisions.
*Subjects violators of law to removal, suspension or
lesser penalties at the discretion of the Board.
*Requires that the Civil Service Commission conduct a
program for informing federal employees of their rights
of political participation and report annually to the
Congress on its implementation.
MR. CHAIRMAN, this bill represents a significant improvement
over earlier legislative proposals which aimed to achieve full and
complete political suffrage for federal employees. The Subcommittee
worked long and hard in forging this bill. It incorporates many of
-3-
the suggestions of not only its supporters but also the concerns of
those relatively few who withheld their endorsement. The bill is
comprehensive. The bill is specific. The bill is fair. I urge
your support in ensuring the prompt and speedy enactment of this
landmark legislation.
7
6
1 leave without pay for the purpose of allowing such employee
1
of another employee's immediate family) with re-
2 to engage in activities relating to such candidacy.
2
spect to whom such employee is a superior; or
3
" (b) Notwithstanding section 6302 (d) of this title,
3
" (B) in any room or building occupied in the
4 an employee who is a candidate for elective office shall, upon
4
discharge of official duties by-
5 the request of such employee, be granted accrued annual
5
(i) an individual employed or holding
office in the Government of the United States, in
6 leave. Such leave shall be in addition to leave without pay
6
the government of the District of Columbia,
7 to which such employee may be entitled under subsection
7
or in any agency or instrumentality of the
S (a) of this section.
S
9 "§ 7327. Board on Political Activities of Federal Employees
9
foregoing; or
10
10
(ii) an individual receiving any salary or
(a) There is established a board to be known as the
11
compensation for services from money derived
11 Board on Political Activities of Federal Employees. It shall
12
from the Treasury of the United States.
12 be the function of the Board to hear and decide cases regardr
13 ing violations of section 7323, 8324, and 7325 of this title,
13
"§ 7325. Political activities on duty, etc.; prohibition
14
" (b) The Board shall be composed of 3 members-
14
"An employee may not engage in political activity
15
"
(1) one member of which shall be appointed, with
15
(1) while such employee is on duty,
16
16
(2) in any room or building occupied in the dis-
the confirmation of a majority of both Houses of the
17
charge of official duties by an individual employed or
Congress, by the President and who shall serve as Chairt
17
18
18
holding office in the Government of the United States,
man of the Board;
19
19
in the government of the District of Columbia, or in
(2) one member of which shall be appointed, with
20
the confirmation of a majority of both Houses of the
20
any agency or instrumentality of the foregoing, or
21
(3) while wearing a uniform or official insignia
Congress, by the Speaker of the House of Representa-
21
22
22
identifying the office or position of such employee.
tives, after consultation with the majority leader of the
23
23 "§ 7326. Leave for candidates for elective office
House and the minority leader of the House; and
24
24
" (a) An employee who is a candidate for elective
(3) one member of which shall be appointed, with
25
25 office shall, upon the request of such employee, be granted
the confirmation of a majority of both House of the
9
8
1
Congress, by the President pro tempore of the Senate,
1 may not continue as a member of the Board after the 60-
2
after consultation with the majority leader of the Senate
2 day period beginning on the date SO separated.
3
" (e) The Board shall meet at the call of the Chairman.
3
and the minority leader of the Senate.
4
4
" (c) Members of the Board shall be chosen on the basis
" (f) All decisions of the Board with respect to the
5 of their professional qualifications from among individuals
5 exercise of its duties and powers under the provisions of this
6 who, at the time of their appointment, are employees (as
6 subchapter shall be made by a majority vote of the Board.
7
7 defined under section 7322 (1) of this title)
" (g) A member of the Board may not delegate to any
" (d) (1) Members of the Board shall serve a term of
8 person his vote nor, except as expressly provided by this
8
9 3 years, except that of the members first appointed-
9 subchapter, may any decisionmaking authority vested in the
(A) the Chairman shall be appointed for a term
10 Board by the provisions of this subchapter be delegated to
10
11 any member or person.
11
of 3 years,
12
12
(B) the member appointed under subsection (b)
" (h) The Board shall prepare and publish in the Fed-
13
(2) of this section shall be appointed for a term of 2
13 eral Register written rules for the conduct of its activities,
14 shall have an official seal which shall be judicially noticed,
14
years, and
15
(C) the member appointed under subsection (b)
15 and shall have its office in or near the District of Columbia
(3) of this section shall be appointed for a term of 1
16 (but it may meet or exercise any of its powers anywhere
16
17 in the United States).
17
year.
18
"
18 An individual appointed to fill a vacancy occurring other
(i) The Civil Service Commission shall provide such
19 than by the expiration of a term of office shall be appointed
19 clerical and professional personnel, and administrative sup-
20 only for the unexpired term of the member such individual
20 port, as the Chairman of the Board considers appropriate
21 will succeed. Any vacancy occurring in the membership of
21 and necessary to carry out the Board's functions under this
22 the Board shall be filled in the same manner as in the case
22 subchapter. Such personnel shall be responsible to the Chair-
23 man of the Board.
23 of the original appointment.
24
"
24
(2) If an employee who was appointed as a member
(j) The Administrator of the General Services Ad-
25 of the Board is separated from service as an employee he
25 ministration shall furnish the Board suitable office space ap-
H.R. 8617-2
10
11
1 propriately furnished and equipped, as determined by the
1
" (2) Except as provided in paragraph (3) of this sub-
2 Administrator.
2 section, if it appears to the Commission after investigation
"
3
(k) (1) Members of the Board shall receive no addi-
3 that a violation of section 7323, 7324, or 7325 of this title
4 tional pay on account of their service on the Board.
4 has occurred, the Commission shall submit to the Board and
"
5
(2) Members shall be entitled to leave without loss of
5 serve upon the employee a notice by certified mail, return
6 or reduction in pay, leave, or performance or efficiency rating
6 receipt requested (or if notice cannot be served in such man-
7 during a period of absence while in the actual performance
7 ner, then by any method calculated to reasonably apprise
S of duties vested in the Board.
8 the employee) -
9
"§ 7328. Investigation; procedures; hearing
9
(A) setting forth specifically and in detail the
10
" (a) The Civil Service Commission shall investigate
10
charges of alleged prohibited activity;
11 reports and allegations of any activity prohibited by section
11
" (B) advising the employee of the penalties pro-
12 7323, 7324, or 7325 of this title.
12
vided under section 7329 of this title;
13
" (b) As a part of the investigation of the activities of an
13
" (C) affording a period of not less than 30 days
14 employee, the Commission shall provide such employee an
14
within which the employee may file with the Board a
15 opportunity to make a statement concerning the matters
15
written answer to the charges in the manner prescribed
16 under investigation and to support such statement with any
16
by rules issued by the Board; and
17 documents the employee wishes to submit. An employee of
17
" (D) advising the employee that unless the em-
18 the Commission lawfully assigned to investigate a violation of
18
ployee answers the charges, in writing, within the time
19 this subchapter may administer an oath to a witness attend-
19
allowed therefor, the Board is authorized to treat such
20 ing to testify or depose in the course of the investigation.
20
failure as an admission by the employee of the charges
21
"
(c) (1) If it appears to the Commission after investi-
21
set forth in the notice and a waiver by the employee of
22 gation that a violation of section 7323, 7324, or 7325 of this
22
the right to a hearing on the charges.
23 title has not occurred, it shall SO notify the employee and the
23
(3) If it appears to the Commission after investiga-
24 agency in which the employee is employed.
24 tion that a violation of section 7323, 7324, or 7325 of this
25 title has been committed by-
12
13
1
" (A) the Vice President;
1 within 30 days after the answer is filed with the Board
2
" (B) an employee appointed by the President by
2 and shall be conducted without unreasonable delay. As soon
3
and with the advice and consent of the Senate;
3 as practicable after the conclusion of the hearing, the exam-
4
" (C) an employee whose appointment is expressly
4 iner shall serve upon the Board, the Commission, and the
5
required by statute to be made by the President;
5 employee such examiner's recommended decision with notice
6
" (D) the Mayor of the District of Columbia; or
6 to the Commission and the employee of opportunity to file
7
" (E) the Chairman or a member of the Council of
7 with the Board, within 30 days after the date of such notice,
8
the District of Columbia, as established by the District of
8 exceptions to the recommended decision. The Board shall
9
Columbia Self-Government and Governmental Reor-
9 issue its final decision and order in the proceeding no later
10
ganization Act;
10 than 60 days after the date the recommended decision is
11 the Commission shall refer the case to the Attorney General
11 served. The employee shall not be removed from active duty
12 for prosecution under title 18, and shall report the nature and
12 status by reason of the alleged violation of this subchapter
13 details of the violation to the President and to the Con-
13 at any time before the effective date specified by the Board
14
gress.
14 in its final order.
"
15
(d) (1) If a written answer is not duly filed within
15
"
(e) (1) At any stage of a proceeding or investigation
16 the time allowed therefor, the Board may, without further
16 under this subchapter, the Board may, at the written request
17 proceedings, issue its final decision and order.
17 of the Commission or the employee, require by subpena the
18
" (2) If an answer is duly filed, the charges shall be
18 attendance and testimony of witnesses and the production
19 determined by the Board on the record after a hearing
19 of documentary or other evidence relating to the proceeding
20 conducted by a hearing examiner appointed under section
20 or investigation at any designated place, from any place in
21 3105 of this title, and, except as otherwise expressly pro-
21 the United States or any territory or possession thereof, the
22 vided under this subchapter, in accordance with the require-
22 Commonwealth of Puerto Rico, or the District of Columbia.
23 ments of subchapter II of chapter 5 of this title, notwith-
23 Any member of the Board may issue subpenas and members
24 standing any exception therein for matters involving the
24 of the Board and any hearing examiner authorized by the
25 tenure of an employee. The hearing shall be commenced
25 Board may administer oaths, examine witnesses, and receive
14
15
1 evidence. In the case of contumacy or failure to obey a sub-
1 for or on account of any transaction, matter, or thing con-
2 pena, the United States district court for the judicial district
2 cerning which the employee is compelled, after having
3 in which the person to whom the subpena is addressed
3 claimed the privilege against self-incrimination, to testify
4 resides or is served may, upon application by the Board,
4 or produce evidence, nor shall testimony or evidence SO com-
5 issue an order requiring such person to appear at any desig-
5 pelled be used as evidence in any criminal proceeding against
6 nated place to testify or to produce documentary or other
6 the employee in any court, except that no employee shall
7 evidence. Any failure to obey the order of the court may be
7 be exempt from prosecution and punishment for perjury
8 punished by the court as a contempt thereof.
S committed in SO testifying.
9
(2) The Board (or a member designated by the
9
"
(f) An employee upon whom a penalty is imposed
10 Board) may order the taking of depositions at any stage of
10 by an order of the Board under subsection (d) of this section
11 a proceeding or investigation under this subchapter. Deposi-
11 may, within 30 days after the date on which the order was
12 tions shall be taken before an individual designated by the
12 issued, institute an action for judicial review of the Board's
13 Board and having the power to administer oaths. Testimony
13 order in the United States District Court for the District of
14 shall be reduced to writing by or under the direction of the
14 Columbia or in the United States district court for the judicial
15 individual taking the deposition and shall be subscribed by
15 district in which the employee resides or is employed. The
16 the deponent.
16 institution of an action for judicial review shall not operate
17
" (3) An employee may not be excused from attending
17 as a stay of the Board's order, unless the court specifically
18 and testifying or from producing documentary or other evi-
18 orders such stay. A copy of the summons and complaint
19 dence in obedience to a subpena of the Board on the ground
19 shall be served as otherwise prescribed by law and, in
20 that the testimony or evidence required of the employee
20 addition, upon the Board. Thereupon the Board shall certify
21 may tend to incriminate the employee or subject the em-
21 and file with the court the record upon which the Board's
22 ployee to a penalty or forfeiture for or on account of any
22 order was based. If application is made to the court for
23 transaction, matter, or thing concerning which the employee
23 leave to adduce additional evidence, and it is shown to the
24 is compelled to testify or produce evidence. No employee
24 satisfaction of the court that the additional evidence may
25 shall be prosecuted or subjected to any penalty or forfeiture
25 materially affect the result of the proceeding and that there
16
17
1 were reasonable grounds for failure to adduce the evidence
1
7329. Penalties
2 at the hearing conducted under subsection (d) (2) of this
"
2
(a) Subject to and in accordance with section 7328
3 section, the court may direct that the additional evidence be
3 of this title, an employee who is found to have violated
4 taken before the Board in the manner and on the terms and
4 any provision of section 7323, 7324, or 7325 of this title
5 conditions fixed by the court. The Board may modify its
5 shall, upon a final order of the Board, be-
6 findings of fact or order, in the light of the additional evi-
6
" (1) removed from such employee's position, in
7 dence, and shall file with the court such modified findings or
7
which event that employee may not thereafter hold any
8 order. The Board's findings of fact, if supported by substan-
8
position (other than an elected position) as an em-
9 tial evidence, shall be conclusive. The court shall affirm the
9
ployee (as defined in section 7322 (1) of this title) for
10 Board's order if it determines that it is in accordance with
10
such period as the Board may prescribe;
11 law. If the court determines that the order is not in ac-
11
(2) suspended without pay from such employee's
12 cordance with law-
12
position for such period as the Board may prescribe; or
13
(1) it shall remand the proceeding to the Board
13
" (3) disciplined in such other manner as the Board
14
with directions either to enter an order determined by
14
shall deem appropriate.
15
the court to be lawful or to take such further proceedings
15
"
(b) The Board shall notify the Commission, the em-
16
as, in the opinion of the court, are required; and
16 ployee, and the employing agency of any penalty it has
17
" (2) it may assess against the United States rea-
17 imposed under this section. The employing agency shall cer-
18
sonable attorney fees and other litigation costs reason-
18 tify to the Board the measures undertaken to implement the
19
ably incurred by the employee.
19 penalty.
20
" (g) The Commission or the Board, in its discretion,
20 "§ 7330. Education program; reports
21 may proceed with any investigation or proceeding instituted
21
"
(a) The Commission shall establish and conduct a
22 under this subchapter notwithstanding that the Commission
22 continuing program to inform all employees of their rights
23 or the head of an employing agency or department has re-
23 of political participation and to educate employees with
24 ported the alleged violation to the Attorney General as re-
24 respect to those political activities which are prohibited.
25 quired by section 535 of title 28.
18
19
1.
" (b) On or before March 30 of each calendar year, the
1 ing: "leave without pay granteđ under section 7326 (a)
2 Commission shall submit a report covering the preceding
2 of this title, or who enters on". s
3 calendar year to the Speaker of the House of Representa-
3
(2) Section 3302 of title 5, United States Code, is
4 tives and the President pro tempore of the Senate for referral
4 amended by striking out "7153, 7321, and 7322" and in-
5 to the appropriate committees of the Congress. The report
5 serting in lieu thereof "and 7153". a
6 shall include
6
(3) Section 1308 (a) of title 5, United States Code,
7
(1) the number of investigations conducted under
7 is amended-
T
8
section 7328 of this title and the results of such investi-
S
(A) by inserting "and" at the end of paragraph
9
gations;
(1)
9
(2)
;
e
10
"(2) the name and position or title of each indivi-
10
(B) by striking out paragráph (3) ; and
11
dual involved, and the funds expended by the Commis-
11
(C) by redesignating paragraph (4) as paragraph
12
sion, in carrying out the program required under subsec-
12
(3)
13
tion (a) of this section; and
13
(4) The second sentence of section 8332 (k) (1) of title
14
" (3) an evaluation which describes-
14 5, United States Code, is amended by striking out "second"
15
" (A) the manner in which such program is
15 and inserting "last" in lieu thereof. (9)
at
16
being carried out; and
16
(5) The section analysis for subchapter III of chapter
17
" (B) the effectiveness of such program in
17 73 of title 5, United States Code, is amended to read as
18,
carrying out the purposes set forth in subsection
18
follows:
of
81
19
(a) of this section.
"SUBCHAPTER III-POLITICAL ACTIVITIES (1)
er
"Sec.
20
"§ 7331. Regulations
"7321. Political participation.
OS
"7322. Definitions.
21
"The Civil Service Commission shall prescribe such
"7323. Use of official authority or influence; prohibition.
"7324. Solicitation; prohibition.
22 rules and regulations as may be necessary to carry out its
"7325. Political activities on duty, etc.; prohibition.
"7326. Leave for candidates for elective office.
"7327. Board on Political Activities of Federal Employees.
23. responsibilities under this subchapter."
"7328. Investigation; procedures; hearing.
"7329. Penalties.
24
(b) (1) Sections 8332 (k) (1) 8706 (e) and 8906
"7330. Education program; reports.
"7331. Regulations.".
25
(e) (2) of title 5, United States Code, are each amended
26 by inserting immediately after "who enters on" the follow-
20
1
(c) Sections 602 and 607 of title 18, United States
2 Code, relating to solicitations and making of political con-
3 tributions, are each amended by adding at the end thereof the
4 following new sentence: "This section does not apply to any
5 activity of an employee as defined in section 7322 (1) of
6 title 5 unless such activity is prohibited by section 7324 of
7 that title.".
8
(d) Section 6 of the Voting Rights Act of 1965 (42
9 U.S.C. 1973d) is amended by striking out "the provisions of
10 section 9 of the Act of August 2, 1939, as amended (5
11 U.S.C. 118i), prohibiting partisan political activity" and by
12 inserting in lieu thereof "the provisions of subchapter III
13 of chapter 73 of title 5, United States Code, relating to
14 political activities".
15
(e) Sections 103 (a) (4) (D) and 203 (a) (4) (D) of
16 the District of Columbia Public Education Act are each
17 amended by striking out "sections 7324 through 7327 of
18 title 5" and inserting in lieu thereof "section 7325 of title 5".
19
(f) The amendments made by this section shall take
20 effect on the ninetieth day after the date of the enactment
21 of this Act.
94TH CONGRESS
1ST SESSION
H. R. 8617
A BILL
To restore to Federal civilian and Postal Serv-
ice employees their rights to participate
voluntarily, as private citizens, in the po-
litical processes of the Nation, to protect
such employees from improper political
solicitations, and for other purposes.
By Mr. CLAY, Mrs. SPELLMAN, Mr. SOLARZ, Mr.
CHARLES H. WILSON of California, Mr.
HARRIS, and Mrs. SCHROEDER
JULY 14, 1975
Referred to the Committee on Post Office and Civil
Service
Campaign
THE WHITE HOUSE
WASHINGTON
July 21, 1975
MEMORANDUM FOR:
PHIL BUCHEN
THRU:
MAX L. FRIEDERSDORF m .6.
VERN LOEN VC
FROM:
CHARLES LEPPERT, JR. Cagn
SUBJECT:
H.R. 8617 - Federal Employees' Political
Activities Act of 1975.
Attached per your request is a copy of H.R. 8617, the Federal Employees'
Political Activities Act of 1975.
Please note that page 2, line 9 defines "employee" to include the "President" and
the "Vice President."
SERVICE R. FORD LIBRARY
NOT FOR RELEASE
H.R. 8617
THE FEDERAL EMPLOYEES' POLITICAL ACTIVITIES ACT OF 1975
OPENING STATEMENT BY MR. CLAY
MR. CHAIRMAN, I move that the Committee take up and consider
the bill, H.R. 8617, and that it be open for amendments at any
point.
MR. CHAIRMAN, H.R. 8617, the Federal Employees' Political
Activities Act of 1975, was reported by the Subcommittee on
Employee Political Rights and Intergovernmental Programs as a
"clean bill" on July 10, 1975.
Earlier, the Subcommittee conducted eleven days of hearings
and received testimony from over one hundred witnesses in Washington
and six other cities across the nation. Testimony in support of
H.R. 3000, which I introduced earlier this year with the
co-sponsorship of 64 of my colleagues, was overwhelmingly in support
of this legislation. There were however, a number of recommendations
for the strengthening of H.R. 3000 and related legislation which
the Subcommittee has incorporated into the "clean bill", H.R. 8617.
MR. CHAIRMAN, the Hatch Act was enacted in an effort to protect
federal employees from improper involvement in partisan political
activities. Previous studies, public hearings, and staff surveys
reveal no evidence that voluntary political activity in any way
erodes the merit system or operates against the public interest.
Yet, existing law, which actually consists of over 3000 administra-
tive regulations, is vague, overly broad and infringes upon the
rights of every American to participate fully in the political life
of this nation.
H.R. 8617, takes these realities into consideration. It pro-
hibits those involuntary political activities which tend to erode
RALE =
-'2-
public confidence in the integrity of the merit system. It estab-
lishes an independent Board to adjudicate alleged violations. It
gives the Commission strengthened authority for investigating
alleged violations. It provides due process and judicial review
for federal employees.
The major provisions of the Subcommittee bill follow:
*States that federal employees are encouraged to exercise
their right of voluntary political participation.
*Prohibits the use of official authority, influence, or
coercion with the right to vote, not to vote or to other-
wise engage in political activity.
*Prohibits use of funds to influence votes; solicitation of
political contributions by superior officials; and making
political contributions in government rooms or buildings.
*Prohibits political activity while on duty, in federal
buildings, or in uniform.
*Provides leave for candidates for elective office.
*Establishes an independent Board on Political Activities
of Government Personnel whose function is to hear and
adjudicate alleged violations of law.
*Authorizes the Civil Service Commission to investigate
alleged violations of law and provides for subpena
authority, due process, and judicial review of adverse
decisions.
*Subjects violators of law to removal, suspension or
lesser penalties at the discretion of the Board.
*Requires that the Civil Service Commission conduct a
program for informing federal employees of their rights
of political participation and report annually to the
Congress on its implementation.
MR. CHAIRMAN, this bill represents a significant improvement
over earlier legislative proposals which aimed to achieve full and
complete political suffrage for federal employees. The Subcommittee
worked long and hard in forging this bill. It incorporates many of
-3-
the suggestions of not only its supporters but also the concerns of
those relatively few who withheld their endorsement. The bill is
comprehensive. The bill is specific. The bill is fair. I urge
your support in ensuring the prompt and speedy enactment of this
landmark legislation.
94TH CONGRESS
1ST SESSION
H. R. 8617
IN THE HOUSE OF REPRESENTATIVES
JULY 14, 1975
Mr. CLAY (for himself. Mrs. SPELLMAN, Mr. SOLARZ, Mr. CHARLES H. WILSON
of California, Mr. HARRIS, and Mrs. SCHROEDER) introduced the following
bill; which was referred to the Committee on Post Office and Civil Service
A
BILL
To restore to Federal civilian and Postal Service employees
their rights to participate voluntarily, as private citizens,
in the political processes of the Nation, to protect such em-
ployees from improper political solicitations, and for other
purposes.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Federal Employees'
4 Political Activities Act of 1975".
5
SEC. 2. (a) Subchapter III of chapter 73 of title 5,
6 United States Code, is amended to read as follows:
I
2
1
"SUBCHAPTER III-POLITICAL ACTIVITIES
2
"§ 7321. Political participation
3
"It is the policy of the Congress that employees should
4 be encouraged to fully exercise, to the extent not expressly
5 prohibited by law, their rights of voluntary participation in
6
the political processes of our Nation.
7
"§ 7322. Definitions
8
"For the purpose of this subchapter-
9
(1) 'employee' means any individual, including
10
the President and the Vice President, employed or
11
holding office in-
12
(A) an Executive agency,
13
(B) the government of the District of
14
Columbia,
15
" (C) the competitive service, or
16
" (D) the United States Postal Service or the
17
Postal Rate Commission;
18
but does not include a member of the uniformed services;
19
"(2) 'candidate' means any individual who seeks
20
nomination for election, or election, to any elective office,
21
whether or not such individual is elected, and, for the
22
purpose of this paragraph, an individual shall be deemed
23
to seek nomination for election, or election, to an elective
24
office, if such individual has-
25
(A) taken the action required to qualify for
26
nomination for election, or election, or
3
1
(B) received political contributions or made
2
expenditures, or has given consent for any other
3
person to receive political contributions or make ex-
4
penditures, with a view to bringing about such indi-
5
vidual's nomination for election, or election, to such
6
office;
7
'(3) 'political contribution'-
8
"(A) means a gift, subscription, loan, advance,
9
or deposit of money or anything of value, made for
10
the purpose of influencing the nomination for elec-
11
tion, or election, of any individual to elective office
12
or for the purpose of otherwise influencing the re-
13
sults of any election;
14
(B) includes a contract, promise, or agree-
15
ment, express or implied, whether or not legally
16
enforceable, to make a political contribution for any
17
such purpose; and
18
" (C) includes the payment by any person,
19
other than a candidate or a political organization,
20
of compensation for the personal services of another
21
person which are rendered to such candidate or po-
22
litical organization without charge for any such
23
purpose;
24
(4) 'superior' means an employee (other than the
25
President or the Vice President) who exercises super-
4
1
vision of, or control or administrative direction over,
2
another employee;
3
(5) 'elective office' means any elective public
4
office and any elective office of any political party or
5
affiliated organization; and
6
" (6) 'Board' means the Board on Political Activi-
7
ties of Federal Employees established under section 7327
8
of this title.
9
"§ 7323. Use of official authority or influence; prohibition
10
(a) An employee may not directly or indirectly use or
11 attempt to use the official authority or influence of such em-
12 ployee for the purpose of-
13
(1) interfering with or affecting the result of any
14
election; or
15
(2) intimidating, threatening, coercing, command-
16
ing, influencing, or attempting to intimidate, threaten,
17
coerce, command, or influence-
18
"(A) any individual for the purpose of inter-
19
fering with the right of any individual to vote as
20
such individual may choose, or of causing any indi-
21
vidual to vote, or not to vote, for any candidate or
22
measure;
23
" (B) any person to give or withhold any politi-
24
cal contribution; or
5
1
(C) any person to engage, or not to engage,
2
in any form of political activity whether or not such
3
activity is prohibited by law.
4
(b) For purposes of subsection (a) of this section, 'use
5 of official authority or influence' includes, but is not limited
6 to, promising to confer or conferring any benefit (such
7 as appointment, promotion, compensation, grant, contract,
8 license, or ruling), or effecting or threatening to effect any
9 reprisal (such as deprivation of appointment, promotion,
10 compensation, grant, contract, license, or ruling).
11 7324. Solicitation; prohibition
12
"An employee may not-
13
"(1) give or offer to give a political contribution
14
to any individual either to vote or refrain from voting,
15
or to vote for or against any candidate or measure, in
16
any election;
17
"(2) solicit, accept, or receive a political contribu-
18
tion to vote or refrain from voting, or to vote for or
19
against any candidate or measure, in any election;
20
(3) knowingly give or hand over a political con-
21
tribution to a superior of such employee; or
22
"(4) knowingly solicit, accept, or receive, or be in
23
any manner concerned with soliciting, accepting, or
24
receiving, a political contribution-
25
"(A) from another employee (or a member
6
1
of another employee's immediate family) with re-
2
spect to whom such employee is a superior; or
3
'(B) in any room or building occupied in the
4
discharge of official duties by-
5
(i) an individual employed or holding
6
office in the Government of the United States, in
7
the government of the District of Columbia,
S
or in any agency or instrumentality of the
9
foregoing; or
10
(ii) an individual receiving any salary or
11
compensation for services from money derived
12
from the Treasury of the United States.
13 "§ 7325. Political activities on duty, etc.; prohibition
14
"An employee may not engage in political activity-
15
"(1) while such employee is on duty,
16
"(2) in any room or building occupied in the dis-
17
charge of official duties by an individual employed or
18
holding office in the Government of the United States,
19
in the government of the District of Columbia, or in
20
any agency or instrumentality of the foregoing, or
21
(3) while wearing a uniform or official insignia
22
identifying the office or position of such employee.
23
"§ 7326. Leave for candidates for elective office
24
'(a) An employee who is a candidate for elective
25 office shall, upon the request of such employee, be granted
7
1 leave without pay for the purpose of allowing such employee
2 to engage in activities relating to such candidacy.
3
"(b) Notwithstanding section 6302 (d) of this title,
4 an employee who is a candidate for elective office shall, upon
5 the request of such employee, be granted accrued annual
6 leave. Such leave shall be in addition to leave without pay
7 to which such employee may be entitled under subsection
8 (a) of this section.
9 "§ 7327. Board on Political Activities of Federal Employees
10
'(a) There is established a board to be known as the
11 Board on Political Activities of Federal Employees. It shall
12 be the function of the Board to hear and decide cases regard-
13 ing violations of section 7323, 8324, and 7325 of this title.
14
(b) The Board shall be composed of 3 members—
15
"(1) one member of which shall be appointed, with
16
the confirmation of a majority of both Houses of the
17
Congress, by the President and who shall serve as Chair-
18
man of the Board;
19
(2) one member of which shall be appointed, with
20
the confirmation of a majority of both Houses of the
21
Congress, by the Speaker of the House of Representa-
22
tives, after consultation with the majority leader of the
23
House and the minority leader of the House; and
24
'(3) one member of which shall be appointed, with
25
the confirmation of a majority of both House of the
8
1
Congress, by the President pro tempore of the Senate,
2
after consultation with the majority leader of the Senate
3
and the minority leader of the Senate.
4
" (c) Members of the Board shall be chosen on the basis
5 of their professional qualifications from among individuals
6 who, at the time of their appointment, are employees (as
7 defined under section 7322 (1) of this title)
8
" (d) (1) Members of the Board shall serve a term of
9 3 years, except that of the members first appointed-
10
" (A) the Chairman shall be appointed for a term
11
of 3 years,
12
" (B) the member appointed under subsection (b)
13
(2) of this section shall be appointed for a term of 2
14
years, and
15
" (C) the member appointed under subsection (b)
16
(3) of this section shall be appointed for a term of 1
17
year.
18 An individual appointed to fill a vacancy occurring other
19 than by the expiration of a term of office shall be appointed
20 only for the unexpired term of the member such individual
21 will succeed. Any vacancy occurring in the membership of
22 the Board shall be filled in the same manner as in the case
23 of the original appointment.
24
" (2) If an employee who was appointed as a member
25 of the Board is separated from service as an employee he
9
1 may not continue as a member of the Board after the 60-
2 day period beginning on the date SO separated.
3
" (e) The Board shall meet at the call of the Chairman.
4
(f) All decisions of the Board with respect to the
5 exércise of its duties and powers under the provisions of this
6 subchapter shall be made by a majority vote of the Board.
7
(g) A member of the Board may not delegate to any
8 person his vote nor, except as expressly provided by this
9 subchapter, may any decisionmaking authority vested in the
10 Board by the provisions of this subchapter be delegated to
11 any member or person.
12
(h) The Board shall prepare and publish in the Fed-
13 eral Register written rules for the conduct of its activities,
14 shall have an official seal which shall be judicially noticed,
15 and shall have its office in or near the District of Columbia
16
(but it may meet or exercise any of its powers anywhere
17 in the United States)
18
(i) The Civil Service Commission shall provide such
19 clerical and professional personnel, and administrative sup-
20 port, as the Chairman of the Board considers appropriate
21 and necessary to carry out the Board's functions under this
22 subchapter. Such personnel shall be responsible to the Chair-
23 man of the Board.
24
(j) The Administrator of the General Services Ad-
25 ministration shall furnish the Board suitable office space ap-
H.R. 8617-2
10
1 propriately furnished and equipped, as determined by the
2
Administrator.
3
(k) (1) Members of the Board shall receive no addi-
4 tional pay on account of their service on the Board.
5
"(2) Members shall be entitled to leave without loss of
6 or reduction in pay, leave, or performance or efficiency rating
7 during a period of absence while in the actual performance
S of duties vested in the Board.
9 "§ 7328. Investigation; procedures; hearing
10
(a) The Civil Service Commission shall investigate
11 reports and allegations of any activity prohibited by section
12 7323, 7324, or 7325 of this title.
13
(b) As a part of the investigation of the activities of an
14 employee, the Commission shall provide such employee an
15 opportunity to make a statement concerning the matters
16 under investigation and to support such statement with any
17 documents the employee wishes to submit. An employee of
18 the Commission lawfully assigned to investigate a violation of
19 this subchapter may administer an oath to a witness attend-
20 ing to testify or depose in the course of the investigation.
21
" (c) (1) If it appears to the Commission after investi-
22 gation that a violation of section 7323, 7324, or 7325 of this
23 title has not occurred, it shall SO notify the employee and the
24 agency in which the employee is employed.
STATE TERE LIBRARY
11
1
(2) Except as provided in paragraph (3) of this sub-
2 section, if it appears to the Commission after investigation
3 that a violation of section 7323, 7324, or 7325 of this title
4 has occurred, the Commission shall submit to the Board and
5 serve upon the employee a notice by certified mail, return
6 receipt requested (or if notice cannot be served in such man-
7 ner, then by any method calculated to reasonably apprise
8 the employee) -
9
"(A) setting forth specifically and in detail the
10
charges of alleged prohibited activity;
11
'(B) advising the employee of the penalties pro-
12
vided under section 7329 of this title;
13
(C) affording a period of not less than 30 days
14
within which the employee may file with the Board a
15
written answer to the charges in the manner prescribed
16
by rules issued by the Board; and
17
'(D) advising the employee that unless the em-
18
ployee answers the charges, in writing, within the time
19
allowed therefor, the Board is authorized to treat such
20
failure as an admission by the employee of the charges
21
set forth in the notice and a waiver by the employee of
22
the right to a hearing on the charges.
23
(3) If it appears to the Commission after investiga-
24 tion that a violation of section 7323, 7324, or 7325 of this
25 title has been committed by-
12
1
kg (A) the Vice President;
2
" (B) an employee appointed by the President by
3
and with the advice and consent of the Senate;
4
" (C) an employee whose appointment is expressly
5
required by statute to be made by the President;
6
(D) the Mayor of the District of Columbia; or
7
(E) the Chairman or a member of the Council of
8
the District of Columbia, as established by the District of
9
Columbia Self-Government and Governmental Reor-
10
ganization Act;
11 the Commission shall refer the case to the Attorney General
12 for prosecution under title 18, and shall report the nature and
13 details of the violation to the President and to the Con-
14 gress.
15
(d) (1) If a written answer is not duly filed within
16 the time allowed therefor, the Board may, without further
17 proceedings, issue its final decision and order.
18
"(2) If an answer is duly filed, the charges shall be
19 determined by the Board on the record after a hearing
20 conducted by a hearing examiner appointed under section
21 3105 of this title, and, except as otherwise expressly pro-
22 vided under this subchapter, in accordance with the require-
23 ments of subchapter II of chapter 5 of this title, notwith-
24 standing any exception therein for matters involving the
25 tenure of an employee. The hearing shall be commenced
13
1 within 30 days after the answer is filed with the Board
2 and shall be conducted without unreasonable delay. As soon
3 as practicable after the conclusion of the hearing, the exam-
4 iner shall serve upon the Board, the Commission, and the
5 employee such examiner's recommended decision with notice
6 to the Commission and the employee of opportunity to file
7 with the Board, within 30 days after the date of such notice,
S exceptions to the recommended decision. The Board shall
9 issue its final decision and order in the proceeding no later
10 than 60 days after the date the recommended decision is
11 served. The employee shall not be removed from active duty
12 status by reason of the alleged violation of this subchapter
13 at any time before the effective date specified by the Board
14 in its final order.
15
'(e) (1) At any stage of a proceeding or investigation
16 under this subchapter, the Board may, at the written request
17 of the Commission or the employee, require by subpena the
18 attendance and testimony of witnesses and the production
19 of documentary or other evidence relating to the proceeding
20 or investigation at any designated place, from any place in
21 the United States or any territory or possession thereof, the
22 Commonwealth of Puerto Rico, or the District of Columbia.
23 Any member of the Board may issue subpenas and members
24 of the Board and any hearing examiner authorized by the
25 Board may administer oaths, examine witnesses, and receive
14
1 evidence. In the case of contumacy or failure to obey a sub-
2 pena, the United States district court for the judicial district
3 in which the person to whom the subpena is addressed
4 resides or is served may, upon application by the Board,
5 issue an order requiring such person to appear at any desig-
6 nated place to testify or to produce documentary or other
7 evidence. Any failure to obey the order of the court may be
S punished by the court as a contempt thereof.
9
(2) The Board (or a member designated by the
10 Board) may order the taking of depositions at any stage of
11 a proceeding or investigation under this subchapter. Deposi-
12 tions shall be taken before an individual designated by the
13 Board and having the power to administer oaths. Testimony
14 shall be reduced to writing by or under the direction of the
15 individual taking the deposition and shall be subscribed by
16 the deponent.
17
(3) An employee may not be excused from attending
18 and testifying or from producing documentary or other evi-
19 dence in obedience to a subpena of the Board on the ground
20 that the testimony or evidence required of the employee
21 may tend to incriminate the employee or subject the em-
22 ployee to a penalty or forfeiture for or on account of any
23 transaction, matter, or thing concerning which the employee
24 is compelled to testify or produce evidence. No employee
25 shall be prosecuted or subjected to any penalty or forfeiture
15
1 for or on account of any transaction, matter, or thing con-
2 cerning which the employee is compelled, after having
3 claimed the privilege against self-incrimination, to testify
4 or produce evidence, nor shall testimony or evidence SO com-
5 pelled be used as evidence in any criminal proceeding against
6 the employee in any court, except that no employee shall
7 be exempt from prosecution and punishment for perjury
S committed in SO testifying.
9
(f) An employee upon whom a penalty is imposed
10 by an order of the Board under subsection (d) of this section
11 may, within 30 days after the date on which the order was
12 issued, institute an action for judicial review of the Board's
13 order in the United States District Court for the District of
14 Columbia or in the United States district court for the judicial
15 district in which the employee resides or is employed. The
16 institution of an action for judicial review shall not operate
17 as a stay of the Board's order, unless the court specifically
18 orders such stay. A copy of the summons and complaint
19 shall be served as otherwise prescribed by law and, in
20 addition, upon the Board. Thereupon the Board shall certify
21 and file with the court the record upon which the Board's
22 order was based. If application is made to the court for
23 leave to adduce additional evidence, and it is shown to the
24 satisfaction of the court that the additional evidence may
25 materially affect the result of the proceeding and that there
16
1 were reasonable grounds for failure to adduce the evidence
2 at the hearing conducted under subsection (d) (2) of this
3 section, the court may direct that the additional evidence be
4 taken before the Board in the manner and on the terms and
5 conditions fixed by the court. The Board may modify its
6 findings of fact or order, in the light of the additional evi-
7 dence, and shall file with the court such modified findings or
8 order. The Board's findings of fact, if supported by substan-
9 tial evidence, shall be conclusive. The court shall affirm the
10 Board's order if it determines that it is in accordance with
11 law. If the court determines that the order is not in ac-
12 cordance with law-
13
(1) it shall remand the proceeding to the Board
14
with directions either to enter an order determined by
15
the court to be lawful or to take such further proceedings
16
as, in the opinion of the court, are required; and
17
" (2) it may assess against the United States rea-
18
sonable attorney fees and other litigation costs reason-
19
ably incurred by the employee.
20
" (g) The Commission or the Board, in its discretion,
21 may proceed with any investigation or proceeding instituted
22 under this subchapter notwithstanding that the Commission
23 or the head of an employing agency or department has re-
24 ported the alleged violation to the Attorney General as re-
25 quired by section 535 of title 28.
17
1 "§ 7329. Penalties
2
"(a) Subject to and in accordance with section 7328
3 of this title, an employee who is found to have violated
4 any provision of section 7323, 7324, or 7325 of this title
5 shall, upon a final order of the Board, be-
6
"(1) removed from such employee's position, in
7
which event that employee may not thereafter hold any
8
position (other than an elected position) as an em-
9
ployee (as defined in section 7322 (1) of this title) for
10
such period as the Board may prescribe;
11
"(2) suspended without pay from such employee's
12
position for such period as the Board may prescribe; or
13
"(3) disciplined in such other manner as the Board
14
shall deem appropriate.
15
' (b) The Board shall notify the Commission, the em-
16 ployee, and the employing agency of any penalty it has
17 imposed under this section. The employing agency shall cer-
18 tify to the Board the measures undertaken to implement the
19 penalty.
20 "§ 7330. Education program; reports
21
"(a) The Commission shall establish and conduct a
22 continuing program to inform all employees of their rights
23 of political participation and to educate employees with
24 respect to those political activities which are prohibited.
18
1
" (b) On or before March 30 of each calendar year, the
2 Commission shall submit a report covering the preceding
3 calendar year to the Speaker of the House of Representa-
4
tives and the President pro tempore of the Senate for referral
5 to the appropriate committees of the Congress. The report
6 shall include-
7
"(1) the number of investigations conducted under
8
section 7328 of this title and the results of such investi-
9
gations;
10
"(2) the name and position or title of each indivi-
11
dual involved, and the funds expended by the Commis-
12
sion, in carrying out the program required under subsec-
13
tion (a) of this section; and
14
"(3) an evaluation which describes—
15
"(A) the manner in which such program is
16
being carried out; and
17
(B) the effectiveness of such program in
18
carrying out the purposes set forth in subsection
19
(a) of this section.
20
"§ 7331. Regulations
21
"The Civil Service Commission shall prescribe such
22
rules and regulations as may be necessary to carry out its
23 responsibilities under this subchapter.".
24
(b) (1) Sections 8332 (k) (1), 8706 (e), and 8906
25
(e) (2) of title 5, United States Code, are each amended
26 by inserting immediately after "who enters on" the follow-
19
1 ing: "leave without pay granted under section 7326 (a)
2 of this title, or who enters on".
3
(2) Section 3302 of title 5, United States Code, is
4 amended by striking out "7153, 7321, and 7322" and in-
5 serting in lieu thereof "and 7153".
6
(3) Section 1308 (a) of title 5, United States Code,
7 is amended-
S
(A) by inserting "and" at the end of paragraph
9
(2) ;
10
(B) by striking out paragraph (3) ; and
11
(C) by redesignating paragraph (1) as paragraph
12
(3).
13
(4) The second sentence of section 8332 (k) (1) of title
14
5, United States Code, is amended by striking out "second"
15
and inserting "last" in lieu thereof.
16
(5) The section analysis for subchapter III of chapter
17
73 of title 5, United States Code, is amended to read as
18
follows:
"SUBCHAPTER III-POLITICAL ACTIVITIES
"Sec.
"7321. Political participation.
"7322. Definitions.
"7323. Use of official authority or influence; prohibition.
"7324. Solicitation; prohibition.
"7325. Political activities on duty, etc.; prohibition.
"7326. Leave for candidates for elective office.
"7327. Board on Political Activities of Federal Employees.
"7328. Investigation; procedures; hearing.
"7329. Penalties.
"7330. Education program; reports.
"7331. Regulations.".
20
1
(c) Sections 602 and 607 of title 18, United States
2 Code, relating to solicitations and making of political con-
3 tributions, are each amended by adding at the end thereof the
4 following new sentence: "This section does not apply to any
5 activity of an employee as defined in section 7322 (1) of
6 title 5 unless such activity is prohibited by section 7324 of
7 that title.".
8
(d) Section 6 of the Voting Rights Act of 1965 (42
9 U.S.C. 1973d) is amended by striking out "the provisions of
10 section 9 of the Act of August 2, 1939, as amended (5
11 U.S.C. 118i), prohibiting partisan political activity" and by
12 inserting in lieu thereof "the provisions of subchapter III
13 of chapter 73 of title 5, United States Code, relating to
14 political activities".
15
(e) Sections 103 (a) (4) (D) and 203 (a) (4) (D) of
16 the District of Columbia Public Education Act are each
17 amended by striking out "sections 7324 through 7327 of
18 title 5" and inserting in lieu thereof "section 7325 of title 5".
19
(f) The amendments made by this section shall take
20 effect on the ninetieth day after the date of the enactment
21 of this Act.
THE WHITE HOUSE
WASHINGTON
July 16, 1975
MEMORANDUM FOR:
DON RUMSFELD
FROM:
PHILIP BUCHEN
T.W.B
Concerning the presentation which I had been
scheduled to make to the Cabinet at its meeting
on July 16, it was to be based on the memo I
had sent you, Jack Marsh and Robert Hartmann on
June 12.
It was to be in condensed form according to the
attached outline (Tab A) and was to be aided by
three charts containing the information shown
on the three sheets in Tab B.
If you concur, I will be glad to make the
presentation at the next Cabinet Meeting. We
should keep in mind that without words of caution,
we may have Cabinet officers "tilting too far
toward Tilly (or was it Milly?) "
Attachments
THE WHITE HOUSE
WASHINGTON
OUTLINE FOR BRIEFING OF CABINET
AND OF WHITE HOUSE STAFF
ON ELECTION CAMPAIGN LAWS
I. INTRODUCTION
A. Purpose: To summarize the constraints we and our
colleagues are under as Federal officials or
employees in relation to the 1976 Presidential
campaign.
B. Not Covered: The impact of the Federal Election
Campaign Act as amended in 1974 on persons whether
or not they are Federal officials. This Act
restricts candidates, political committees, and
campaign contributors. The provisions in this
regard are complex and to some extent so unclear
as to be troublesome. Rather than my attempting
to go into these problems, I recommend that you
rely on advise from the RNC or the PFC whenever
questions arise about legal sources and limits
for campaign contributions or for expenditures
to support the campaign.
- 2 -
II. GENERAL PROHIBITIONS
A. Campaign contributions
1. Two taboos: Other Federal employees;
any Federal office or building.
2. Even unsolicited contributions which violate
the taboos should be returned.
3. Do not act as a solicitor, a recipient, or
even a conduit.
B. Governmental inducements or detrimental treatment
for campaign or election purposes.
C. Turning a government operation into a campaign
operation.
III. HATCH ACT
A. Coverage
1. Everyone on a Federal payroll is "Hatched"
unless he or she is a Presidential appointee
subject to Senate confirmation or is paid
solely from WH or VP appropriations.
2. The rest of the vast Federal bureaucracy is
by law made neutral or apolitical for election
campaign purposes.
B. Proper behavior for the "Hatched" employee
1. He may express his opinions about a candidate
and wear a candidate button, but he may not
- 3 -
use his authority or position to influence
the outcome of an election.
2. He can attend political functions but he
cannot be active in the workings of
political organizations or raise money for
them.
3. He may act as an individual voter but not
as a campaigner for votes or money in support
of a particular candidate or party.
C. The Pervasive Nature of Hatch-Imposed Restrictions
STATE
UNIT
IV. SPECIFIC PROBLEMS
ARVOUT
A. Return directly to the sender any contribution
sent to you, designating only where a check may
be delivered in order to reach the intended
political committee.
B. "An employee shall not use Federal property of
any kind for other than officially approved
activities" -- including supplies and equipment.
- 4 -
C. An exempt employee must not look to a Hatched
employee to help in his political activities,
except possibly for routine, non-discretionary
support which is minimal and does not detract
from the subordinate's performance of official
duties.
D. How much time can you fairly devote to campaigning?
E. Drawing the line between official and political
travel
F. However legal may be a particular activity on your
part, it should not be undertaken if it could create
even the appearance of being improper.
STATE TOTO MORANT
GENERAL PROHIBITIONS
Soliciting or receiving campaign contributions:
from other government employees
from anyone in a Federal office or building
Offering governmental inducements for campaign or
election support
Using governmental personnel or resources for
campaign activities
a YORD LIBRARY
HATCH ACT
Applicable to all officials and employees except --
Personnel paid from White House and Vice
President's appropriations
Presidential appointees subject to confirmation
Prohibits "Hatched" employees from --
Using authority for campaign purposes
Participating in a political organization
Campaigning for any political party or partisan
candidate
Prohibitions apply --
To employees of competitive and excepted service
including Schedule C and NEA employees
To part-time and full-time employees
During business hours or private time, including leave
STATE a. YORD LIBRARY
ILLUSTRATIVE PROBLEM AREAS
Receipt of contributions
Use of Government materials, facilities and privileges
Use of departmental personnel
Time devoted to political activities
Travel expenses
Problems of appearance
STATE 1. your LIBRARY
THE WHITE HOUSE
WASHINGTON
Election
July 16, 1975
MEMORANDUM FOR:
DON RUMSFELD
FROM:
PHILIP BUCHEN
T.W.B
Concerning the presentation which I had been
scheduled to make to the Cabinet at its meeting
on July 16, it was to be based on the memo I
had sent you, Jack Marsh and Robert Hartmann on
June 12.
It was to be in condensed form according to the
attached outline (Tab A) and was to be aided by
three charts containing the information shown
on the three sheets in Tab B.
If you concur, I will be glad to make the
presentation at the next Cabinet Meeting. We
should keep in mind that without words of caution,
we may have Cabinet officers "tilting too far
toward Tilly (or was it Milly?) "
Attachments
STATE TORD JURAMY
THE WHITE HOUSE
WASHINGTON
OUTLINE FOR BRIEFING OF CABINET
AND OF WHITE HOUSE STAFF
ON ELECTION CAMPAIGN LAWS
I.
INTRODUCTION
A.
Purpose: To summarize the constraints we and our
colleagues are under as Federal officials or
employees in relation to the 1976 Presidential
campaign.
B. Not Covered: The impact of the Federal Election
Campaign Act as amended in 1974 on persons whether
or not they are Federal officials. This Act
restricts candidates, political committees, and
campaign contributors. The provisions in this
regard are complex and to some extent so unclear
as to be troublesome. Rather than my attempting
to go into these problems, I recommend that you
rely on advise from the RNC or the PFC whenever
questions arise about legal sources and limits
for campaign contributions or for expenditures
to support the campaign.
STATE FORD
- 2 -
II. GENERAL PROHIBITIONS
A. Campaign contributions
1. Two taboos: Other Federal employees;
any Federal office or building.
2. Even unsolicited contributions which violate
the taboos should be returned.
3. Do not act as a solicitor, a recipient, or
even a conduit.
B. Governmental inducements or detrimental treatment
for campaign or election purposes.
C. Turning a government operation into a campaign
operation.
III. HATCH ACT
A. Coverage
1. Everyone on a Federal payroll is "Hatched"
unless he or she is a Presidential appointee
subject to Senate confirmation or is paid
solely from WH or VP appropriations.
2. The rest of the vast Federal bureaucracy is
by law made neutral or apolitical for election
SECURITY E. FORD LIBRARY
campaign purposes.
B. Proper behavior for the "Hatched" employee
1. He may express his opinions about a candidate
and wear a candidate button, but he may not
- 3 -
use his authority or position to influence
the outcome of an election.
2. He can attend political functions but he
cannot be active in the workings of
political organizations or raise money for
them.
3. He may act as an individual voter but not
as a campaigner for votes or money in support
of a particular candidate or party.
C. The Pervasive Nature of Hatch-Imposed Restrictions
IV. SPECIFIC PROBLEMS
A. Return directly to the sender any contribution
sent to you, designating only where a check may
be delivered in order to reach the intended
political committee.
STATE FORD LIBRARY
B. "An employee shall not use Federal property of
any kind for other than officially approved
activities" -- including supplies and equipment.
- 4 -
C. An exempt employee must not look to a Hatched
employee to help in his political activities,
except possibly for routine, non-discretionary
support which is minimal and does not detract
from the subordinate's performance of official
duties.
D. How much time can you fairly devote to campaigning?
E. Drawing the line between official and political
travel
F. However legal may be a particular activity on your
part, it should not be undertaken if it could create
even the appearance of being improper.
GENERAL PROHIBITIONS
Soliciting or receiving campaign contributions:
from other government employees
from anyone in a Federal office or building
Offering governmental inducements for campaign or
election support
Using governmental personnel or resources for
campaign activities
VOID LIMBER
HATCH ACT
Applicable to all officials and employees except --
Personnel paid from White House and Vice
President's appropriations
Presidential appointees subject to confirmation
Prohibits "Hatched" employees from --
Using authority for campaign purposes
Participating in a political organization
Campaigning for any political party or partisan
candidate
Prohibitions apply --
To employees of competitive and excepted service
including Schedule C and NEA employees
To part-time and full-time employees
During business hours or private time, including leave
LUVUSIT
ILLUSTRATIVE PROBLEM AREAS
Receipt of contributions
Use of Government materials, facilities and privileges
Use of departmental personnel
Time devoted to political activities
Travel expenses
Problems of appearance