[Federal Register Volume 62, Number 121 (Tuesday, June 24, 1997)]
[Proposed Rules]
[Pages 34017-34024]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16424]
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Proposed Rules
Federal Register
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This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 62, No. 121 / Tuesday, June 24, 1997 /
Proposed Rules
[[Page 34017]]
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 733
RIN 3206-AF78
Political Activity: Federal Employees Residing in Designated
Localities
AGENCY: Office of Personnel Management.
ACTION: Proposed rule.
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SUMMARY: The Office of Personnel Management (OPM) is proposing changes
to rules concerning the political activities of Federal employees who
reside in localities designated by OPM. The proposed rule is limited in
scope to matters concerning exemptions for employees residing in
designated localities and to the political activities that are
associated with the local elections for partisan political office in
these localities.
DATES: Written comments must be received on or before August 25, 1997.
ADDRESSES: Send written comments to Lorraine Lewis, General Counsel,
Office of Personnel Management, Room 7355, 1900 E Street, NW,
Washington, DC 20415.
FOR FURTHER INFORMATION CONTACT: Jo-Ann Chabot, (202) 606-1700.
SUPPLEMENTARY INFORMATION: On October 6, 1993, President Clinton signed
the Hatch Act Reform Amendments of 1993, Public Law 103-94. The
Amendments specifically authorize OPM to issue regulations on the
political activities of Federal employees regarding matters described
in 5 U.S.C. 7325, as amended, concerning Federal employees'
participation in local elections of the localities in which they
reside.
On February 4, 1994, OPM published an interim regulation on the
political activities of Federal employees residing in specified
localities designated by OPM. 59 FR 5313. OPM received comments from
three individuals; a Federal employee labor organization; six Federal
agencies; and two local governments. In addition, Congress recently
enacted an amendment to the Reform Amendments authorizing OPM to permit
employees in specified sensitive agencies and positions to participate
in the local elections of the designated localities in which they
reside. OPM also has determined that the Federally employed residents
of Spotsylvania County, Virginia, as well as the Federally employed
residents of St. Mary's County, Maryland, qualify for a partial
exemption from the prohibitions of 5 U.S.C. 7323(a) (2) and (3).
Finally, in connection with its interim regulation, OPM received two
comments which suggested that the partial exemption granted by the
Civil Service Commission to employees residing in the District of
Columbia is invalid. OPM is seeking further comments on this matter.
The OPM interim regulation on the political activities of Federal
employees residing in designated localities will remain in effect
during this notice and comment period and until the final regulation
for part 733 takes effect. The OPM regulation on the political
activities of Federal employees appears at 5 CFR part 734 (1996) as
modified by the amendments appearing at 61 FR 35088-35102 (July 5,
1996).
Definitions
Section 733.101 of the proposed regulation defines the terms that
apply to part 733. OPM received a comment from one Federal agency
concerning the definitions in the interim regulation and suggesting
that OPM should define the term solicit. OPM agrees with this
suggestion in view of the activities that are permitted and prohibited
under Sec. 733.103, and proposes to add a definition of solicit to
Sec. 733.101. OPM also proposes to add the definitions of related
terms, such as accept, person, and receive, to Sec. 733.101 for the
same reasons, and to add the definition of subordinate to Sec. 733.101
in conjunction with provisions concerning uncompensated volunteer
services that OPM proposes to add to part 733. OPM notes that the
definitions of accept and receive cover only the acts of accepting or
receiving something from a person officially on behalf of a candidate,
campaign, a political party or a partisan political group. Ministerial
activities which precede or follow the official acceptance and receipt,
such as handling, disbursing, or accounting for contributions are not
covered under the definitions of accept and receive.
OPM further proposes to add the definitions of candidate, campaign,
election, on duty, partisan, partisan political group, political
activity, political management, political party, political purpose,
room or building occupied in the discharge of official duties by an
individual employed or holding office in the Government of the United
States or any agency thereof, and uniformed service to Sec. 773.101
because they appear as descriptive terms in part 733. Finally, the
existing definition of political contribution does not reflect that the
Reform Amendments allow Federal employees to solicit, accept, receive,
and direct uncompensated volunteer services from certain individuals
during the course of a campaign. Therefore, OPM proposes to revise the
definition of political contribution specifically to exclude such
services. The definitions of employee and partisan political office
have not been changed from the definition of these terms in the interim
regulation. All of the definitions in Sec. 733.101 of the proposed
regulation are identical to the definitions of the same terms appearing
in part 734 of this title.
Exclusion From Coverage
The interim regulation excludes several categories of employees
from coverage under part 733. The exclusionary provision in the interim
regulation currently applies to employees in the sensitive agencies and
positions that are described in 5 U.S.C. 7323(b)(2) and to employees of
the Criminal Division of the Department of Justice as specified in 5
U.S.C. 7323(b)(3). Four Federal agencies submitted comments concerning
the exclusionary provision in the interim regulation. These agencies
stated that employees who reside in designated localities should not be
excluded from participation in local partisan elections as independent
candidates, or on behalf of independent candidates, because they
previously had been permitted to participate in these activities under
the more restrictive provisions of the Hatch Act.
On January 6, 1996, Congress amended the Reform Amendments by
adding a new provision which
[[Page 34018]]
authorizes OPM to permit employees who are described in 5 U.S.C.
7323(b)(2), and who reside in the designated localities, to participate
in the local partisan elections of these localities. Section 308 of
Pub. L. 104-93, 109 Stat. 961, 966. In view of the amendment to the
Reform Amendments and the comments that OPM received on this issue, OPM
finds that employees in the agencies and positions specified in 5
U.S.C. 7323(b)(2) who reside in designated localities may be permitted
to participate in the local partisan elections of those localities.
Therefore, OPM proposes to permit these employees to participate in
such local elections as independent candidates and in support of, or
opposition to, independent candidates. OPM also proposes to remove
these employees from the exclusionary provision which, for purposes of
clarity, appears in Sec. 733.102 of the proposed regulation.
This amendment to the Reform Amendments, however, does not mention
the employees of the Criminal Division of the Department of Justice who
are described in 5 U.S.C. 7323(b)(3). Moreover, the legislative history
of the added provision does not reflect that Congress intended to
extend the coverage of the amendment to these employees. Therefore, OPM
proposes that employees of the Criminal Division of the Department of
Justice will continue to be excluded from coverage under part 733,
except for employees in the Criminal Division who are appointed by the
President, by and with the advice and consent of the Senate. This
tracks the exception described in the Reform Amendments, at 5 U.S.C.
7323(b)(3), for such Presidential appointees in the Criminal Division
at the Department of Justice.
Permitted and Prohibited Political Activities--Elections for Local
Public Office in Designated Localities
Candidacy for Local Partisan Political Office
The interim regulation currently permits employees to run as
candidates in elections for local partisan political office in the
municipality or subdivision in which they reside, but requires such
employees to run as independent candidates. A Federal employee labor
organization suggested that employees who reside in designated
localities should not be required to run as independent candidates for
election to local partisan political offices and should, instead, be
able to run for local public office as the candidates of partisan
political parties. The labor organization stated its view that, under 5
U.S.C. 7325, employees who reside in designated localities have ``the
right to run for local partisan political office and to solicit
political contributions in support of these campaigns.'' It further
stated that section 7325 specifically provides that such employees may
participate actively in local political management and political
campaigns ``without regard to the prohibitions in paragraphs (2) and
(3) of Section 7232(a),'' which concern soliciting, accepting and
receiving political contributions, and running for election to partisan
political office.
The labor organization noted that OPM relied on section 10 of the
Reform Amendments (the Sense of the Senate) in requiring employees to
run as independent candidates in local elections for partisan political
office and in prohibiting employees from soliciting political
contributions in these local elections. It noted that section 10 of the
Reform Amendments states the Sense of the Senate that Federal employees
should not be authorized to solicit political contributions, or to run
for the nomination or as a candidate for local partisan political
office, except as expressly provided under current law. The labor
organization stated that the legislative history of the Reform
Amendments demonstrates that section 10 was added to the Reform
Amendments to express disagreement with the House version of the Hatch
Act reform bill, which would have permitted all Federal employees to
run for local partisan political office and to solicit political
contributions from the general public. Accordingly, the labor
organization stated that section 10 was not intended to restrict the
activities of Federal employees in specific communities, but was aimed
solely at the rights granted by the House bill to Federal employees in
general.
OPM has not adopted this suggestion. The legislative history of the
Reform Amendments is at best inconclusive regarding the purpose behind
including section 10 in the Reform Amendments. Moreover, the law
itself, at 5 U.S.C. 7325, does not give to the Federally employed
residents of designated localities the ``right'' to run for local
partisan political office as the candidates of partisan political
parties. Section 7325 provides that OPM ``may prescribe regulations
permitting employees, without regard to the prohibitions in [5 U.S.C.
7327(a)(2) and (3)], to take an active part in political management and
political campaigns involving the municipality or other political
subdivision in which they reside, to the extent the Office considers it
to be in their domestic interest * * *'' when the statutory conditions
specified in section 7325 are fulfilled.
Independent candidates in local partisan elections clearly are
candidates for ``partisan political office'' within the meaning of the
Reform Amendments, which define that term as ``any office for which any
candidate is nominated or elected as representing a party any of whose
candidates for Presidential elector received votes in the last
(Presidential election).'' Thus, under the Reform Amendments, an
independent candidate runs for partisan political office when he or she
opposes the candidates of political parties. It is clear from the
language of the Reform Amendments, particularly the Sense of the Senate
(section 10), as well as from the legislative history of the Reform
Amendments that, in permitting employees to participate in a much
broader range of political activities, Congress was especially
concerned about the possibility that Federal employees would become
candidates for partisan political office or would solicit other Federal
employees as well as the general public for political contributions.
The legislative history of the Reform Amendments shows that
Congress was familiar with the Hatch Act provisions on the political
activity of Federal employees in designated localities and the OPM
regulation interpreting these provisions, and intended to preserve the
provisions on candidacy for local partisan political office and
soliciting political contributions in enacting the Reform Amendments.
S. Rep. No. 103-57, 103d Cong., 1st Sess. 2, 29, 37 (1993); 138 Cong.
Rec. S8609 (daily ed. July 13, 1993) (Remarks of Senator Roth); 138
Cong. Rec. S8613 (daily ed. July 13, 1993 (Remarks of Senator Glenn);
138 Cong. Rec. S8765 (daily ed. July 15, 1993) (Remarks of Senator
Glenn). In proposing to amend the House bill by removing all of its
provisions and adopting the provisions of the Senate bill in toto, and
in explaining the provisions of the Senate bill, Representative Clay,
the leading advocate of Hatch Act Reform in the House of
Representatives, noted that: ``The Senate amendment also retains
provisions of current law permitting political activity by employees in
certain communities pursuant to regulations issued by [OPM].'' 138
Cong. Rec. H6817 (daily ed. Sept. 21, 1993). The Hatch Act, like the
Reform Amendments, did not specify that employees must run as
independent candidates in these elections. However, regulations
promulgated under the Hatch Act by the United States Civil Service
Commission and later by OPM
[[Page 34019]]
required independent candidacies in these local elections. Thus, the
legislative history of the Reform Amendments shows that the Senate bill
(which became the Reform Amendments) did not change existing provisions
requiring Federal employees to run as independent candidates for
partisan political office in the local elections of the designated
localities. Accordingly, OPM proposes to retain without change the
current regulatory provisions that permit employees who reside in
designated localities to run for local partisan political office but
only as independent candidates.
Soliciting Political Contributions
The interim regulation prohibits Federal employees from soliciting
political contributions in connection with local elections for partisan
political office. The same Federal employee labor organization also
noted that employees in designated localities should be permitted to
engage in this activity because they were permitted to do so prior to
the Reform Amendments. Citing In the Matter of Andrew J. Panholzer, 3
P.A.R. 88, 91 (1971), a Federal agency noted the legal precedent under
the Hatch Act that Federal employees residing in partially exempted
localities were free to participate in campaign activities on behalf of
independent candidates, including soliciting political contributions
from non-government employees.
In Panholzer, the Civil Service Commission held that employees
residing in a designated locality could participate actively in
political campaigns on behalf of independent candidates for local
public office but could not solicit political contributions from other
Federal employees. Because employees in designated localities
previously were permitted to solicit political contributions in local
elections on behalf of independent candidates for partisan political
office, OPM proposes to revise the interim regulation to permit such
solicitation as, or on behalf of, independent candidates. Federal
employees would, however, be prohibited from knowingly soliciting
political contributions from other Federal employees. OPM notes that,
notwithstanding this prohibition, employees who are not employed in the
sensitive agencies and positions described in the Reform Amendments at
5 U.S.C. 7323(b(2)(B) and OPM's regulation at section 733.105(a), and
who are members of a Federal labor or Federal employee organization as
defined in 5 CFR 734.101, still may solicit political contributions in
accordance with the conditions specified for such solicitation in the
Reform Amendments at 5 U.S.C. 7323(a)(2) and OPM's regulation at 5 CFR
734.208(b).
Other Political Activities
The interim regulation currently permits employees residing in
designated localities to accept and receive political contributions on
behalf of candidates for local partisan political office who represent
political parties. Except for employees in the agencies and positions
described in Sec. 733.105(a), employees covered by Part 733 still would
be permitted to accept and receive political contributions on behalf of
such candidates for local office. OPM also proposes to add provisions
about soliciting, accepting, and receiving uncompensated volunteer
services to part 733 because such services play such an important part
in election campaigns for local partisan political office.
Employees Who Reside in Designated Localities and Are Not Employed in
the Agencies and Positions Described in Sec. 733.105(a)
Sections 733.103 and 733.104 describe the political activities that
are permitted to employees who reside in the designated localities and
who are not employed in the agencies and positions described in
Sec. 733.105(a). Employees covered by Secs. 733.103 and 733.104 would
be permitted to run for election to partisan political office in local
elections, but only as independent candidates. They would be permitted
to solicit political contributions but only as, or on behalf of,
independent candidates for election to local partisan political office.
These employees, however, would be prohibited from knowingly soliciting
political contributions from other Federal employees, except as
permitted under 5 U.S.C. 7323(a)(2) (A)-(C).
Employees subject to Secs. 733.103 and 733.104 would be permitted
to accept or receive political contributions as, or on behalf of,
independent candidates, as well as on behalf of candidates for local
partisan political office who represent a political party. Although
employees would be permitted to accept or receive political
contributions from other Federal employees, they would be prohibited
from accepting or receiving such contributions from a subordinate
employee. Employees would be permitted to solicit, accept, or receive
uncompensated volunteer services as, or on behalf of independent
candidates, as well as on behalf of candidates for local partisan
political office who represent a political party. Although employees
would be permitted to solicit, accept, or receive uncompensated
volunteer services from other Federal employees, they would be
prohibited from soliciting, accepting, or receiving such services from
a subordinate employee. Finally, employees would be prohibited from
political participation while they are on duty, on Federal premises, in
uniform, or while using a Government-owned or leased vehicle.
Employees Who Reside in Designated Localities and Are Employed in the
Agencies and Positions Described in Sec. 733.105(a)
Sections 733.105 and 733.106 describe the political activities that
are permitted to employees who reside in the designated localities and
who are employed in the agencies and positions described in
Sec. 733.105(a). Employees who are covered by Secs. 733.105 and 733.106
would be permitted to run for election to partisan political office in
local elections but only as independent candidates. These employees
would be permitted to solicit political contributions but only as, or
on behalf of, independent candidates for election to local partisan
political office. However, they would be prohibited from knowingly
soliciting political contributions from other Federal employees.
Employees covered under Secs. 733.105 and 733.106 would be
permitted to accept or receive political contributions only as, or on
behalf of, independent candidates. They would be prohibited from
accepting or receiving such contributions on behalf of a candidate for
local partisan political office who represents a political party.
Although employees would be permitted to accept or receive political
contributions from other Federal employees, they would be prohibited
from accepting or receiving such contributions from a subordinate
employee. They also would be prohibited from political participation
while they are on duty, on Federal premises, in uniform, or while using
a Government-owned or leased vehicle.
Employees covered by Secs. 733.105 and 733.106 would be permitted
to solicit, accept, or receive uncompensated volunteer services only
as, or on behalf of, independent candidates. They would be prohibited
from soliciting, accepting, or receiving uncompensated volunteer
services on behalf of a candidate for local partisan political office
who represents a political party. Although employees would be permitted
to solicit, accept, or receive uncompensated volunteer services from
other Federal employees, they would be prohibited from soliciting,
accepting, or
[[Page 34020]]
receiving such services from a subordinate employee.
Finally, employees who are subject to Secs. 733.105 and 733.106
would be permitted to participate actively in other activities
associated with elections for local partisan political office, such as
stuffing envelopes, making telephone calls, driving voters to the
polls, directing a group of uncompensated volunteers, or managing the
campaign of an independent candidate for local partisan political
office. However, their participation in such activities would be
limited to participation as, or on behalf of, independent candidates
for local partisan political office. Employees would be prohibited from
such participation on behalf of a candidate for local partisan
political office who represents a political party.
Designated Localities
Section 7323(a) (2) and (3) of title 5, United States Code,
prohibits Federal employees from becoming candidates for partisan
political office and from soliciting, accepting, or receiving political
contributions. However, 5 U.S.C. 7325 authorizes OPM to prescribe
regulations permitting Federal employees in certain communities to
participate in local partisan elections, without regard to the
prohibitions stated in 5 U.S.C. 7323(a) (2) and (3), if the
requirements stated in section 7325 are fulfilled. The first
requirement is that the community or political subdivision must be
located in Maryland or Virginia and in the immediate vicinity of the
District of Columbia. Alternatively, the majority of the community's
registered voters must be employed by the United States Government. The
second requirement is that OPM must determine that it is in the
domestic interest of the employees to permit that political
participation because of special or unusual circumstances existing in
the municipality or political subdivision.
Section 733.105 of the proposed regulation reflects these statutory
requirements. Under part 733, the exemption from the prohibitions
stated in 5 U.S.C. 7323(a) (2) and (3) would be a partial exemption
because employees would be required to run as independent candidates
for local partisan political office, and they would be permitted to
participate in other political activities connected with elections for
local public office as specified in part 733. Section 733.105 also
includes a list of designated localities whose residents have been
granted a partial exemption by OPM.
Three Federal agencies, two local governments, and one individual
submitted comments concerning the regulatory list of designated
localities in the interim regulation for part 733. In addition, two
individuals requested that OPM grant a partial exemption to the
Federally employed residents of Spotsylvania County, Virginia, and one
individual requested that OPM grant a partial exemption to the
Federally employed residents of St. Mary's County, Maryland.
Spotsylvania County, Virginia and St. Mary's County, Maryland
OPM proposes to grant to the Federal employees residing in
Spotsylvania County, Virginia, and in St. Mary's County, Maryland, a
partial exemption from the political activity restrictions in 5 U.S.C.
7323(a) (2) and (3), and to add Spotsylvania County and St. Mary's
County to OPM's regulatory list of designated localities in 5 CFR
733.104. OPM has determined that Spotsylvania County and St. Mary's
County, respectively, meet the criteria described in 5 U.S.C. 7325 and
5 CFR 733.104 for a partial exemption to issue.
In response to separate applications from a Federal employee and a
retired Federal employee who reside in Spotsylvania County, Virginia,
as well as an application from a Federal employee who resides in St.
Mary's County, Maryland, OPM proposes to designate those counties as
localities in which Federal employees may run as independent candidates
for local partisan political office and may participate in other
political activities in connection with elections for local public
office as specified in Part 733. However, an employee's candidacy for,
and service in, a local partisan political office must not result in
the neglect of, or interference with, the employee's performance of the
duties of his or her Federal position or create a conflict or apparent
conflict of interest.
This proposal reflects OPM's determination that special or unusual
circumstances exist so that it is in the domestic interest of Federal
employees residing in Spotsylvania County, Virginia, to participate in
these political activities. OPM's determination is based upon
documentary material provided by the applicants as well as interviews
of both applicants and the County Administrator. Principal factors in
OPM's determination include the proximity of Spotsylvania County to the
District of Columbia; the statistically significant proportion of
county residents who are Federal employees; the rapid growth of the
county within the past few years; and significant public issues
associated with this rapid growth. A public notice regarding this
proposal to include Spotsylvania County in the OPM list of designated
localities also will be published in a local newspaper serving that
county.
This proposal also reflects OPM's further determination that
special or unusual circumstances exist so that it is in the domestic
interest of Federal employees residing in St. Mary's County, Maryland,
to participate in these political activities. OPM's determination is
based upon documentary material provided by the applicant as well as
interviews of the applicant and the President of the Board of County
Commissioners. Principal factors in OPM's determination include the
proximity of St. Mary's County to the District of Columbia; the rapidly
increasing population of the county; significant public issues
associated with the increase in population; the impending transfer of
naval functions to naval facilities in that county and associated
increases in Federal employees residing in the county; and the
statistically significant proportion of county residents who are
Federal employees. A public notice regarding this proposal to include
St. Mary's County in the OPM list of designated localities also will be
published in a local newspaper serving that county.
If this proposal is adopted as a final rule, OPM will add
Spotsylvania County to the list of designated Virginia municipalities
and political subdivisions, and will add St. Mary's County to the list
of designated Maryland municipalities and political subdivisions, in
which Federal Government employees may run as independent candidates
for local partisan political office and may solicit, accept, or receive
political contributions as, or on behalf of, independent candidates in
connection with local elections. The addition of Spotsylvania County
will be listed among the designated Virginia municipalities and
political subdivisions after Prince William County and before Stafford
County. The addition of St. Mary's County to the designated Maryland
municipalities and political subdivisions will be listed after Somerset
and before Takoma Park.
The District of Columbia
The District of Columbia currently is included in the OPM
regulatory list of designated localities. The District of Columbia was
added to this list on July 5, 1977, by the United States Civil Service
Commission. In separate comments, two Federal agencies questioned
whether the District of Columbia should continue to be listed as a
partially exempt municipality in view of the unpublished memorandum
[[Page 34021]]
opinion of the United States District Court for the District of
Columbia in Ward Three Democratic Committee versus United States, No.
78-853 (D.D.C. Aug. 29, 1980). OPM recognizes that, when the statutory
exemption requirements were enacted in 1940, Congress did not foresee a
need for an exemption for the District of Columbia because the District
held no local elections at the time and was, instead, governed by three
Commissioners appointed by the President of the United States.
One commentator provided a history of the district court decision,
noting that, on May 30, 1974, the Civil Service Commission added the
District of Columbia to the list of exempted localities at 5 CFR
733.124, retroactively effective May 16, 1974. 39 FR 18761 (1974). In
Joseph versus United States Civil Service Commission, 554 F. 2d 1140
(1977), the United States Court of Appeals for the District of Columbia
declared the exemption for the District of Columbia invalid because it
was not published after a notice and comment period, as required by the
Administrative Procedure Act. The appeals court held that, under the
Hatch Act, the District of Columbia could not qualify under the first
alternative for an exemption to issue. Id. at 1154-1155. The appeals
court stated in this regard that:
Although there can be no dispute that it is ``in the immediate
vicinity of the District of Columbia,'' it is equally certain that
it is not in the states of Maryland or Virginia. The legislative
history of this first alternative clearly indicates that it was
proposed to restrict the Civil Service Commission's exemption
authority to areas adjacent to the District. (Citation omitted.)
Admittedly the failure to include areas within the District may well
have been due to the fact that there were no elective positions
within the District government in 1940 when the Commission was given
its exemption authority. (Footnote omitted.) The literal language of
the first alternative in subsection 7327(b)(1), however, clearly
does not include the District, and although a court should interpret
the meaning of statutory language in light of the intent of its
drafters, we cannot rewrite the statute to compensate for unforeseen
circumstances.
Id. The appeals court also stated that, if the Civil Service Commission
republished the exemption, it should furnish statistical evidence that
a majority of District of Columbia voters were employed by the United
States Government or the District of Columbia Government. Id. at 1152-
1157. In order to comply with the decision in Joseph, the Civil Service
Commission subsequently proposed to add the District of Columbia to the
list of exempted localities on May 6, 1977, 42 FR 23160 (1977), and the
District was then added to the list of exempted localities, effective
July 5, 1977. 42 FR 34308.
In a second suit challenging the validity of section 733.124, the
appeals court remanded the case to the district court to gather
statistical evidence to determine whether the majority of registered
voters in the District of Columbia were employed by the United States
or the District of Columbia governments. Ward Three Democratic
Committee versus United States, 609 F. 2d 10 (D.C. Cir. 1979). On
remand, the district court found that, based upon the statistical
evidence submitted by the parties, less than 50 percent of registered
voters in the District of Columbia were employed by the United States
Government or the District of Columbia Government. Thus, the district
court held that Sec. 733.124(b), the regulation which provided for
partial exemptions at that time, was ``not applicable to the District
of Columbia and shall not be applied thereto.'' Ward Three Democratic
Committee versus United States, No. 78-853 (D.D.C. Aug. 29, 1980). OPM
notes that this judicial decision was based upon requirements stated in
the Hatch Act for an exemption to issue, but the same requirements also
appear in the Reform Amendments. OPM is requesting further comments
from the public, in particular from the Federal, Postal Service, and
District of Columbia government employees who are registered voters in
the District of Columbia. In the interim, OPM will also pursue a
legislative solution to put the District of Columbia on the same
footing as the surrounding Virginia and Maryland localities.
Other Designated Localities
The interim regulation includes ``Martin's Additions 1, 2, 3, and 4
to Chevy Chase'' in its list of designated Maryland municipalities and
subdivisions. OPM proposes to remove ``Martin's Additions 1, 2, 3, and
4 to Chevy Chase'' from, and add ``Village of Martin's Additions'' to,
the list of designated localities appearing in Sec. 733.104 of the
proposed regulation. OPM based this action on a comment received from a
former local official of Martin's Additions, who advises that
``Martin's Additions 1, 2, 3, and 4 to Chevy Chase'' became an
incorporated municipality in 1985. He also advises that the name of the
subdivision was changed officially to the ``Village of Martin's
Additions'' on its incorporation.
The interim regulation also includes ``Chevy Chase, sections 1 and
2'', in its list of designated localities. OPM has removed ``Chevy
Chase, sections 1 and 2,'' from the list of designated localities in
Sec. 733.104 of the proposed regulation and has added the ``Town of
Chevy Chase Village'' to that list. OPM has taken this action on the
basis of a comment received from an official of the Town of Chevy Chase
Village, who advised that sections 1 and 2 of Chevy Chase are included
within the Town of Chevy Chase Village.
The interim regulation further includes the ``Town of Fairfax'' in
its list of designated Virginia municipalities and subdivisions. OPM
has removed the ``Town of Fairfax'' from the list of designated
localities in Sec. 733.104 of the proposed regulation and has added the
``City of Fairfax'' to that list. OPM has taken this action on the
basis of information received from the Office of the City Attorney for
the City of Fairfax regarding a Transition Order issued on June 30,
1961, In the Matter of the Town of Fairfax, Virginia, Applying to
Become a City of The Second Class, Circuit Court of the County of
Fairfax, Law No. 10031, and amendment of the Town Charter by the
Virginia General Assembly, Acts of Assembly 1962, Ch. 468.
In connection with the regulatory list of designated localities, an
individual commented generally that some localities on the list may no
longer fulfill the statutory requirements for designation as an exempt
locality and should therefore be removed from the list. Except in the
possible case of the District of Columbia, OPM does not have any
evidence to suggest that these localities may no longer qualify for a
partial exemption.
E.O. 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with E.O. 12866.
Regulatory Flexibility Act
I certify that this regulation will not have a significant economic
impact on a substantial number of small entities because the changes
will affect only employees of the Federal Government.
List of Subjects in 5 CFR Part 733
Political activities (Government employees).
Office of Personnel Management.
James B. King,
Director.
Accordingly, the Office of Personnel Management proposes to revise
5 CFR part 733 as follows:
[[Page 34022]]
PART 733--POLITICAL ACTIVITY--FEDERAL EMPLOYEES RESIDING IN
DESIGNATED LOCALITIES
Sec.
733.101 Definitions.
733.102 Exclusion of employees in the Criminal Division of the
United States Department of Justice.
733.103 Permitted political activities--employees who reside in
designated localities.
733.104 Prohibited political activities--employees who reside in
designated localities.
733.105 Permitted political activities--employees who reside in
designated localities and are employed in certain agencies and
positions.
733.106 Prohibited political activities--employees who reside in
designated localities and are employed in certain agencies and
positions.
733.107 Designated localities.
Authority: 5 U.S.C. 7325; sec. 8 of Pub. L. 104-93, 109 Stat.
961, 966 (Jan. 6, 1996).
Sec. 733.101 Definitions.
In this part:
Accept means to come into possession of something from a person
officially on behalf of a candidate, a campaign, a political party, or
a partisan political group, but does not include ministerial activities
which precede or follow this official act.
Candidate means an individual who seeks nomination or election to
any elective office whether or not the person is elected. An individual
is deemed to be a candidate if the individual has received political
contributions or made expenditures or has consented to another person
receiving contributions or making expenditures with a view to bringing
about the individual's nomination or election.
Campaign means all acts done by a candidate and his or her
adherents to obtain a majority or plurality of the votes to be cast
toward a nomination or in an election.
Election includes a primary, special, runoff, or general election.
Employee means:
Any individual (other than the President, the Vice President, or a
member of the uniformed services) employed or holding office in--
(1) An Executive agency other than the General Accounting Office;
(2) A position within the competitive service which is not in an
Executive agency;
(3) The government of the District of Columbia, other than the
Mayor or a member of the City Council or the Recorder of Deeds; or
(4) The United States Postal Service or the Postal Rate Commission.
On Duty means the time period when an employee is:
(1) In a pay status other than paid leave, compensatory time off,
credit hours, time off as an incentive award, or excused or authorized
absence (including leave without pay); or
(2) Representing any agency or instrumentality of the United States
Government or any agency or instrumentality of the District of Columbia
Government in an official capacity.
Partisan when used as an adjective means related to a political
party.
Partisan political group means any committee, club, or other
organization which is affiliated with a political party or candidate
for public office in a partisan election, or organized for a partisan
purpose, or which engages in partisan political activity.
Partisan political office means any office for which any candidate
is nominated or elected as representing a party any of whose candidates
for Presidential elector received votes in the last preceding election
at which Presidential electors were selected, but does not include any
office or position within a political party or affiliated organization.
Person means an individual; a State, local, or foreign government;
or a corporation and the subsidiaries it controls, company,
association, firm, partnership, society, joint stock company, or any
other organization or institution, including any officer, employee, or
agent of such person or entity.
Political activity means an activity directed toward the success or
failure of a political party, candidate for partisan political office,
or partisan political group.
Political contribution means any gift, subscription, loan, advance,
or deposit of money or anything of value, made for any political
purpose.
(1) A political contribution includes:
(i) Any contract, promise, or agreement, express or implied,
whether or not legally enforceable, to make a contribution for any
political purpose;
(ii) Any payment by any person, other than a candidate or a
political party or affiliated organization, of compensation for the
personal services of another person which are rendered to any candidate
or political party or affiliated organization without charge for any
political purpose; and
(iii) The provision of personal services, paid or unpaid, for any
political purpose.
(2) A political contribution does not include the value of services
provided without compensation by any individual who volunteers on
behalf of any candidate, campaign, political party, or partisan
political group.
Political management means the direction or supervision of a
partisan political group or campaign for partisan political office.
Political party means a national political party, a State political
party, or an affiliated organization.
Political purpose means an objective of promoting or opposing a
political party, candidate for partisan political office, or partisan
political group.
Receive means to come into possession of something from a person
officially on behalf of a candidate, a campaign, a political party, or
a partisan political group, but does not include ministerial activities
which precede or follow this official act.
Room or building occupied in the discharge of official duties by an
individual employed or holding office in the Government of the United
States or any agency thereof includes, but is not limited to:
(1) Any Federally owned space (including, but not limited to,
``public buildings'' as defined in 40 U.S.C. 612(1)) or Federally
leased space in which Federal employees perform official duties on a
regular basis;
(2) Public areas as defined in 40 U.S.C. 490(a)(17) and 41 CFR 101-
20.003 of buildings under the custody and control of the General
Services Administration.
(3) A room or building occupied in the discharge of official duties
by an individual employed or holding office in the Government of the
United States or any agency thereof does not include rooms in the White
House, or in the residence of the Vice President, which are part of the
Residence area or which are not regularly used solely in the discharge
of official duties.
Solicit means to request expressly of another person that he or she
contribute something to a candidate, a campaign, a political party, or
partisan political group.
Subordinate refers to the relationship between two employees when
one employee is under the supervisory authority, control or
administrative direction of the other employee.
Uniformed services means uniformed services as defined in 5 U.S.C.
2101(3).
Sec. 733.102 Exclusion of employees in the Criminal Division of the
United States Department of Justice.
Employees in the Criminal Division in the Department of Justice
(except employees appointed by the President, by and with the advice
and consent of the Senate) specifically are excluded
[[Page 34023]]
from coverage under the provisions of this part.
Sec. 733.103 Permitted political activities--employees who reside in
designated localities.
(a) This section does not apply to employees in the agencies and
positions described in Sec. 733.105(a).
(b) Employees who reside in a municipality or political subdivision
designated by OPM under Sec. 733.107 may:
(1) Run as independent candidates for election to partisan
political office in elections for local office in the municipality or
political subdivision;
(2) Solicit, accept, or receive a political contribution as, or on
behalf of, an independent candidate for partisan political office in
elections for local office in the municipality or political
subdivision;
(3) Accept or receive a political contribution on behalf of an
individual who is a candidate for local partisan political office and
who represents a political party;
(4) Solicit, accept, or receive uncompensated volunteer services as
an independent candidate, or on behalf of an independent candidate, for
local partisan public office, in connection with the local elections of
the municipality or subdivision; and
(5) Solicit, accept, or receive uncompensated volunteer services on
behalf of an individual who is a candidate for local partisan political
office and who represents a political party.
Sec. 733.104 Prohibited political activities--employees who reside in
designated localities.
(a) This section does not apply to employees in the agencies and
positions described in Sec. 733.105(a).
(b) Employees who reside in a municipality or political subdivision
designated by OPM under Sec. 733.107 may not:
(1) Run as the representative of a political party for local
partisan political office;
(2) Solicit a political contribution on behalf of an individual who
is a candidate for local partisan political office and who represents a
political party;
(3) Knowingly solicit a political contribution from any Federal
employee, except as permitted under 5 U.S.C. 7323(a)(2) (A)-(C).
(4) Accept or receive a political contribution from a subordinate;
or
(5) Solicit, accept, or receive uncompensated volunteer services
from a subordinate for any political purpose.
(c) An employee covered under this section may not participate in
political activities:
(1) While he or she is on duty:
(2) While he or she is wearing a uniform, badge, or insignia that
identifies the employing agency or instrumentality or the position of
the employee;
(3) While he or she is in any room or building occupied in the
discharge of official duties by an individual employed or holding
office in the Government of the United States or any agency or
instrumentality thereof; or
(4) While using a Government-owned or leased vehicle or while using
a privately owned vehicle in the discharge of official duties.
(d) An employee described in 5 U.S.C. 7324(b)(2) may participate in
political activity otherwise prohibited by Sec. 733.104(c) if the costs
associated with that political activity are not paid for by money
derived from the Treasury of the United States.
(e) Candidacy for, and service in, a partisan political office
shall not result in neglect of, or interference with, the performance
of the duties of the employee or create a conflict, or apparent
conflict, of interest.
Sec. 733.105 Permitted political activities--employees who reside in
designated localities and are employed in certain agencies and
positions.
(a) This section applies to employees who reside in designated
localities and are employed in the following agencies or positions:
(1) Federal Election Commission;
(2) Federal Bureau of Investigation;
(3) Secret Service;
(4) Central Intelligence Agency;
(5) National Security Council;
(6) National Security Agency;
(7) Defense Intelligence Agency;
(8) Merit Systems Protection Board;
(9) United States Office of Special Counsel;
(10) Office of Criminal Investigation of the Internal Revenue
Service;
(11) Office of Investigative Programs of the United States Customs
Service;
(12) Office of Law Enforcement of the Bureau of Alcohol, Tobacco,
and Firearms;
(13) Central Imagery Office;
(14) Career appointees in the Senior Executive Service;
(15) Administrative Law Judges; and
(16) Contract appeals board members described in 5 U.S.C. 5372a.
(b) Employees who are covered under this section and who reside in
a municipality or political subdivision designated by OPM under
Sec. 733.107 may:
(1) Run as independent candidates for election to partisan
political office in elections for local office in the municipality or
political subdivision;
(2) Solicit, accept, or receive a political contribution as, or on
behalf of, an independent candidate for partisan political office in
elections for local office in the municipality or political
subdivision;
(3) Solicit, accept, or receive uncompensated volunteer services
as, or on behalf of, an independent candidate for partisan political
office in elections for local office in the municipality or
subdivision; and
(4) Take an active part in other political activities associated
with elections for local partisan political office and in managing the
campaigns of candidates for election to local partisan political office
in the municipality or political subdivision, but only as an
independent candidate or on behalf of, or in opposition to, an
independent candidate.
Sec. 733.106 Prohibited political activities--employees who reside in
designated localities and are employed in certain agencies and
positions.
(a) Employees who are employed in the agencies and positions
described in Sec. 733.105(a), and who reside in a municipality or
political subdivision designated by OPM under Sec. 733.107, may not:
(1) Run as the representative of a political party for local
partisan political office;
(2) Solicit, accept, or receive a political contribution on behalf
of an individual who is a candidate for local partisan political office
and who represents a political party;
(3) Knowingly solicit a political contribution from any Federal
employee;
(4) Accept or receive a political contribution from a subordinate;
(5) Solicit, accept, or receive uncompensated volunteer services on
behalf of an individual who is a candidate for local partisan political
office and who represents a political party;
(6) Solicit, accept, or receive uncompensated volunteer services
from a subordinate for any political purpose; or
(7) Take an active part in other political activities associated
with elections for local partisan political office, when such
participation occurs on behalf of a political party, partisan political
group, or a candidate for local partisan political office who
represents a political party.
[[Page 34024]]
(b) An employee covered under this section may not participate in
political activities:
(1) While he or she is on duty:
(2) While he or she is wearing a uniform, badge, or insignia that
identifies the employing agency or instrumentality or the position of
the employee;
(3) While he or she is in any room or building occupied in the
discharge of official duties by an individual employed or holding
office in the Government of the United States or any agency or
instrumentality thereof; or
(4) While using a Government-owned or leased vehicle or while using
a privately owned vehicle in the discharge of official duties.
(c) An employee described in 5 U.S.C. 7324(b)(2) may participate in
political activity otherwise prohibited by Sec. 733.104(b) if the costs
associated with that political activity are not paid for by money
derived from the Treasury of the United States.
(d) Candidacy for, and service in, a partisan political office
shall not result in neglect of, or interference with, the performance
of the duties of the employee or create a conflict, or apparent
conflict, of interest.
Sec. 733.107 Designated localities.
(a) OPM may designate a municipality or political subdivision in
Maryland or Virginia and in the immediate vicinity of the District of
Columbia, or a municipality in which the majority of voters are
employed by the Government of the United States, when OPM determines
that, because of special or unusual circumstances, it is in the
domestic interest of employees to participate in local elections.
(b) Information as to the documentation required to support a
request for designation is furnished by the General Counsel of OPM on
request.
(c) The following municipalities and political subdivisions have
been designated, effective on the day specified:
In Maryland
Annapolis (May 16, 1941).
Anne Arundel County (March 14, 1973).
Berwyn Heights (June 15, 1944).
Bethesda (Feb. 17, 1943).
Bladensburg (April 20, 1942).
Bowie (April 11, 1952).
Brentwood (Sept. 26, 1940).
Calvert County (June 18, 1992).
Capitol Heights (Nov. 12, 1940).
Cheverly (Dec. 18, 1940).
Chevy Chase, section 3 (Oct. 8, 1940).
Chevy Chase, section 4 (Oct. 2, 1940).
Chevy Chase View (Feb. 26, 1941).
Chevy Chase Village, Town of (March 4, 1941).
College Park (June 13, 1945).
Cottage City (Jan. 15, 1941).
District Heights (Nov. 2, 1940).
Edmonston (Oct. 24, 1940).
Fairmont Heights (Oct. 24, 1940).
Forest Heights (April 22, 1949).
Frederick County (May 31, 1991).
Garrett Park (Oct. 2, 1940).
Glenarden (May 21, 1941).
Glen Echo (Oct. 22, 1940).
Greenbelt (Oct. 4, 1940).
Howard County (April 25, 1974).
Hyattsville (Sept. 20, 1940).
Kensington (Nov. 8, 1940).
Landover Hills (May 5, 1945).
Martin's Additions, Village of (Feb. 13, 1941).
Montgomery County (April 30, 1964).
Morningside (May 19, 1949).
Mount Rainier (Nov. 22, 1940).
New Carrollton (July 7, 1981).
North Beach (Sept. 20, 1940).
North Brentwood (May 6, 1941).
North Chevy Chase (July 22, 1942).
Northwest Park (Feb. 17, 1943).
Prince Georges County (June 19, 1962).
Riverdale (Sept. 26, 1940).
Rockville (April 15, 1948).
Seat Pleasant (Aug. 31, 1942).
Somerset (Nov. 22, 1940).
St. Mary's County (date to be determined at a later date).
Takoma Park (Oct. 22, 1940).
University Park (Jan. 18, 1941).
Washington Grove (April 5, 1941).
In Virignia
Alexandria (April 15, 1941).
Arlington County (Sept. 9, 1940).
Clifton (July 14, 1941).
Fairfax, City of (Feb. 9, 1954).
Fairfax County (Nov. 10, 1949).
Falls Church (June 6, 1941).
Herndon (April 7, 1945).
Loudoun County (Oct. 1, 1971).
Manassas (Jan. 8, 1980).
Manassas Park (March 4, 1980).
Portsmouth (Feb. 27, 1958).
Prince William County (Feb. 14, 1967).
Spotsylvania County (date to be determined at a later date).
Stafford County (Nov. 2, 1979).
Vienna (March 18, 1946).
Other Municipalities
Anchorage, Alaska (Dec. 29, 1947).
Benicia, Calif. (Feb. 20, 1948).
Bremerton, Wash. (Feb. 27, 1946).
Centerville, Ga. (Sept. 16, 1971).
Crane, Ind. (Aug. 3, 1967).
District of Columbia (July 5, 1977).
Elmer City, Wash. (Oct. 28, 1947).
Huachuca City, Ariz. (April 9, 1959).
New Johnsonville, Tenn. (April 26, 1956).
Norris, Tenn. (May 6, 1959).
Port Orchard, Wash. (Feb. 27, 1946).
Sierra Vista, Ariz. (Oct. 5, 1955).
Warner Robins, Ga. (March 19, 1948).
[FR Doc. 97-16424 Filed 6-23-97; 8:45 am]
BILLING CODE 6325-01-P