(This post was published in November, 2016. Please see yet another update to OSC guidance dated February 7, 2017 on this page.)
OK, so, it’s been quite a week. And we all have Thoughts. Officers have Thoughts. Eligible Family Members (EFMs) have Thoughts, too.
We at UAB are not lawyers or experts of any kind. However, as EFMs ourselves, we are aware of two facts regarding our ability to express our Thoughts online.
1. The rules for EFMs are different than the rules for employees.
2. No one, has yet, to our knowledge—and despite multiple inquiries by multiple people to the Family Liaison Office, the Office of the Legal Advisor at State, and the Office of Special Counsel—satisfactorily clarified the rules specifically for EFMs.
There are at least two reasons for the lack of clarity and confusion within the EFM community about this issue.
1. Guidance was issued by the Office of Special Counsel (OSC) to all federal employees in March of 2016. This memo was widely disseminated in the Foreign Service community as well. Shortly afterward, that guidance was superseded by updated guidance from the OSC. That second memo was not so widely distributed within the Foreign Service community.
2. It Depends.
So, we are simply going to provide some links to relevant policies and FAQs that may help clarify your position as an EFM With Thoughts. Use them as you see fit.
First of all, there’s the Hatch Act. That is a law which applies to all federal employees, and the language is pretty clear. Here is a plain-English summary version of it on Wikipedia. More importantly, here is the Office of Special Counsel’s FAQ (in wizard format).
As to how the Hatch Act applies to EFMs while in the Continental U.S. (CONUS) that is thankfully very clear. It does not. Here is an answer that an EFM recently received directly from the Office of Special Counsel (not a part of the State Department) in reply to her questions regarding policy at her post.
The Hatch Act only applies to individuals employed in federal executive branch agencies. Therefore, unless an employee’s family members also work in a federal executive branch agency, they would not be covered by the Hatch Act’s restrictions.
However, the representative added that,
It seems that the notice you received [at post] is based on a State Department policy. Therefore, we are unable to further advise you.
So, there are two things going on here: the Hatch Act law and State Department policy. That’s where it gets trickier, for both employees and EFMs. But in this post, we are focusing on EFMs.
While overseas, EFMs are under Chief of Mission (COM) Authority. That does not mean that they have no ability to express themselves politically at all, but it does mean that the rules are applied differently than when the family is posted to CONUS.
We begin with the State Department Foreign Affairs Manual (FAM). 3 FAM 4123.3 Political Activities. (See also, 11 FAM 614.1 The Hatch Act and Political Activities.) The FAM is posted in its entirety on the State Department website. Search for “political” and the relevant citations will come up.
A U.S. citizen employee, spouse, or family member shall not engage in partisan political activities abroad, other than authorized activities pertaining to U.S. elections. This provision shall not preclude a locally hired U.S. citizen employee, who also is a national of the country of residence, from exercising political rights deriving from that foreign nationality.
OK, so what is a “partisan political activity?” And how does this combine with the Hatch Act to govern the conduct of EFMs posted overseas?
The Office of the Legal Advisor for State has issued an updated FAQ that is reprinted in full on the website of the American Foreign Service Association which includes a section on social media—the area in which Foreign Service family members are most likely to express themselves politically.
The memo includes what is always permissible, which is clearly open to some interpretation.
Posting, liking, friending, sharing, emailing, tweeting, or retweeting nonpartisan pages or content.
Now pay attention, here’s another important bit. The memo then further clarifies that there is a difference between:
1. “less restricted” and “further restricted” employees, and
2. being “on duty” and not “on duty.”
So, if you are overseas and working as an EFM employee of the U.S. embassy or consulate you are clearly “on duty.” (How “restricted” you are depends on the job description.)
But if you are not working at the embassy or consulate, that clearly leads to the question of whether or not you can be considered to be “on duty” merely by virtue of being posted overseas.
How about the new Foreign Service Family Reserve Corps? Are they “on-duty” even when not actively working in an embassy or consulate?
We can’t answer those questions for you, we can only point out that they clearly exist.
Here is the language from the updated guidance.
The following activities constitute political activity, and are not permissible while on duty; on an official social media account, email account, or webpage; in a government building; on a government device; etc.:
Posting, liking, friending, sharing, emailing, tweeting, or retweeting pages or content supporting or opposing a partisan candidate, political party, or partisan political group
Using an alias to post, like, friend, share, email, tweet, or retweet partisan pages or content.
There are many other intricate and fascinating details of this new guidance, particularly as regards social media, which is, of course, where EFMs are most likely to need “clarification.” We suggest that all EFMs pour themselves a strong cup of coffee and read the Office of Special Counsel’s Hatch Act Social Media and Email Guidance page (available in both HTML and PDF formats).
So, to recap, these are the links to reference regarding EFMs and political speech.
- Hatch Act Summary (Wikipedia)
- Hatch Act FAQs from the Office of Special Counsel
- March, 2016 Memo from the Office of Special Counsel: Rules on Political Activities
- Hatch Act Social Media and Email Guidance page from the Office of Special Counsel
- The State Department Foreign Affairs Manual (FAM)
That, to our knowledge, is the sum total of the guidance available to State Department Eligible Family Members at this point. We hope that this compilation will be useful to all of you in these Interesting Times.
We welcome your constructive comments.