[Federal Register: July 5, 1996 (Volume 61, Number 130)]
[Rules and Regulations]               
[Page 35088-35102]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05jy96-2]

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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 734

RIN 3206-AH33

 
Political Activities of Federal Employees

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The Office of Personnel Management (OPM) is issuing final 
regulations regarding the political activity of Federal employees. 
These regulations will inform Federal employees of the political 
activities which are permitted and prohibited under the Hatch Act 
Reform Amendments of 1993. Covered employees also should refer to OPM's 
interim regulations as part 733, published in the Federal Register in 
the February 4, 1994 edition, which specifically address political 
activities connected with local elections in designated communities.

EFFECTIVE DATE: August 5, 1996.

FOR FURTHER INFORMATION CONTACT:
Jo-Ann Chabot at (202) 606-1700.

SUPPLEMENTARY INFORMATION: On October 6, 1993, the President signed the 
Hatch Act Reform Amendments of 1993. The Reform Amendments became

[[Page 35089]]

effective on February 3, 1994 and OPM has the authority to issue 
regulations under the Reform Amendments. On September 23, 1994, OPM 
issued interim regulations with a request for comments at part 734 
concerning the political activities that generally are permitted and 
prohibited to Federal employees. OPM received comments from nine 
Federal agencies, two Federal employee labor organizations, and an 
individual before the comment period closed on November 22, 1994. OPM's 
observations about the comments follow the numerical order of the 
regulations starting at subpart A and ending with subpart G.

Comment on Supplementary Information Preceding the OPM Interim 
Regulations

    One Federal agency commented that the supplementary information 
preceding OPM's interim regulations requires clarification of the 
language which makes it appear that Sec. 734.208 applies exclusively to 
Federal employees who belong to a Federal employee labor organization. 
The agency noted that the language of Sec. 734.208 clearly shows that 
the requirement of belonging to a Federal employee labor organization, 
or other Federal employee organization, applies only to the fundraising 
activities described in Sec. 734.208(b)(4). OPM agrees. Every employee 
who is covered under subparts B and C of part 734 may participate in 
the activities described in Sec. 734.208 (a) and (b) (1) through (3). 
The activities described in Sec. 734.208(b)(4) are limited to members 
of the Federal employee labor organizations and Federal employee 
organizations that meet the requirements of 5 U.S.C. 7323(a)(2) and 5 
CFR 734.103. Sections 734.404(c)-(d) and 734.410 describe permitted and 
prohibited fundraising activities for employees covered under subpart 
D.

Subpart A--General Provisions

    Section 734.101 of the interim regulations provides definitions for 
certain terms used throughout the regulations. The regulations define 
``accept'' and ``receive'' as the acts of accepting or receiving 
something from a person officially on behalf of a candidate, a 
campaign, a political party, or a partisan political group. One Federal 
agency and one Federal employee labor organization commented that the 
language from the supplementary material preceding the interim 
regulations which noted that ``ministerial activities preceding or 
following the official acceptance and receipt are not covered under the 
definitions'' should be added to the definitions. OPM agrees that 
adding such language to the definitions of ``accept'' and ``received'' 
clarifies the definitions and has made the suggested changes.
    OPM also received two comments on the definition of ``on duty'' in 
Sec. 734.101. A Federal agency commented that the definition should 
contain language from the supplementary material preceding the interim 
regulations noting that it is not appropriate to grant excused absence 
(administrative leave) to participate in political activities. This 
agency also noted that the definition should note that it is not 
appropriate to request sick leave in order to participate in political 
activity. While OPM has the authority to regulate a covered employee's 
partisan political activity, the granting of excused absence is a 
matter of agency discretion. However, an agency's decision to grant 
excused absences for the purposes of engaging in partisan political 
activities or partisan political management would not be appropriate. 
Indeed, granting excused absences solely for the purposes of 
participation in partisan political activities might be a violation of 
the prohibitions against use of official authority or influence to 
interfere with or affect the results of an election. In addition, 5 
U.S.C. 6307 and OPM's regulations at 5 CFR 630.401 prescribe the 
conditions under which an employee may use sick leave. It is not 
appropriate to permit the use of sick leave to participate in partisan 
political activities. Sick leave should be granted only under the 
conditions prescribed by 5 U.S.C. 6307 and 5 CFR 630.401.
    Citing Bureau of Alcohol, Tobacco and Firearms v. Federal Labor 
Relations Authority, 464 U.S. 89, 105 (1983), a Federal employee labor 
organization commented that the definition of ``on duty'' should 
exclude ``official time'' given to employees who are labor 
organizations officials because employees on ``official time'' are not 
considered to be in duty status, except for purposes of being paid. 
Thus, the labor organization noted that, as a matter of statutory 
construction, official time is simply not time ``on duty.'' The Supreme 
Court concluded in this decision that Federal employees who negotiate 
on behalf of a labor organization are not conducting official business 
on behalf of the Government. However, the Supreme Court reached this 
conclusion for the limited purpose of determining whether Federal 
employees who represent their labor unions in collective bargaining 
with agencies are entitled to reimbursement from the Government for 
travel and per diem expenses.
    Citing National Federation of Federal Employees and U.S. Department 
of Veterans Affairs, 47 FLRA 1118, 1124, (1993) (NFFE) and American 
Federation of Government Employees and U.S. Department of Labor, 39 
FLRA 546, 553 (1991), (AFGE), the labor organization also noted that 
the Federal Labor Relations Authority (FLRA) has sanctioned the use of 
official time for union representatives to lobby Congress concerning 
working conditions. NFFE concerned a collective bargaining proposal to 
authorize the use of a reasonable amount of time as official time under 
5 U.S.C. 7131(d) to lobby members of Congress in support of or 
opposition to pending or desired legislation which would affect the 
working conditions of employees represented by the union. The FLRA 
found that 5 U.S.C. 7102 contemplates that employees will express their 
views to Congress through their exclusive representative, and 
specifically grants employees functioning as labor representatives the 
right to present the views of the labor organization to Congress. It 
also found that the proposal concerned labor-management relations 
activities for which official time is authorized under section 7131(d). 
Although the FLRA concluded that the proposal was negotiable under 
section 7131(d), the FLRA reached its decision within the context of 
petitioning Congress regarding nonpartisan issues that generally affect 
employees' working conditions. It did not determine whether these 
statutory provisions also provide for official time to participate in 
partisan political activities on behalf of individuals who are 
candidates for partisan political office.
    AFGE concerns an agency denial of an employee's request to use an 
agency automobile and to use official time for travel to and from a 
hearing regarding his claim for workers' compensation. The FLRA held 
that 5 U.S.C. 7131(d) did not preclude the parties in the case from 
agreeing to provide for official time in circumstances unrelated to 
labor-management relations activities, provided that granting such 
official time was consistent with the statute and other applicable laws 
and regulations. The FLRA cited attendance at hearings before the Equal 
Employment Opportunity Commission and responding to discovery requests 
in cases before the Merit Systems Protection Board as examples of 
circumstances unrelated to labor-management relations activities where 
use of official time might be authorized. Thus, this decision clearly 
was made

[[Page 35090]]

within the context of prehearing for and appearing at administrative 
hearings on behalf of employees, and does not address the use of 
official time to participate actively in partisan political activities.
    The Federal Service Labor-Management Relations Statute (Labor 
Statute), at 5 U.S.C. 7101(a)(1)(A) provides that statutory protection 
of employee rights to organize, bargain collectively, and participate 
through labor organizations in decisions which affect them safeguard 
the public interest. It also provides at section 7102 that employees 
who represent labor organizations are entitled to present labor 
organization views to Congress in connection with matters regarding 
conditions of employment. However, none of the provisions in chapter 71 
of title 5, United States Code, concern participation in partisan 
political activities.
    The Hatch Act Reform Amendments of 1993, enacted subsequent to the 
Labor Statute, specifically address participation in partisan political 
activities and permit Federal employees to participate actively in most 
of the partisan political activities that previously had been 
prohibited to these employees under the original Hatch Act. In return 
for the opportunity for wider political participation, the Reform 
Amendments specifically prohibit Federal employees from engaging in any 
partisan political activities basically while on duty or on Federal 
premises.
    The intent of Congress in enacting the Reform Amendments, a statute 
specifically intended to govern the partisan political activities of 
Federal employees, controls the previously enacted provisions on labor-
management, at 5 U.S.C. Chapter 71, which clearly do not permit Federal 
employees to participate in partisan political activities while they 
are on duty or on Federal premises, and do not even address 
participation in partisan political activities. In contrast, the Reform 
Amendments, at 5 U.S.C. 7324(a), specifically prohibit most Federal 
employees from such participation and provide for only one exemption 
from the prohibition. The Reform Amendments, at 5 U.S.C. 7324(b), 
exempt employees whose official duties and responsibilities continue 
outside normal duty hours and while away from the normal duty post, and 
who are (1) paid from an appropriation for the Executive Office of the 
President, or (2) appointed by the President, by and with the advice 
and consent of the Senate, to positions that are located within the 
United States and involve determinations of policy to be pursued by the 
United States in relations with foreign powers or in the nationwide 
administration of Federal laws. If Congress had intended to exempt 
other employees from the prohibition, Congress clearly would have 
provided for such exemptions in the statute itself.
    In addressing the question of whether the Reform Amendments 
prohibit Federal employees from making voluntary salary allotments to 
political action committees, an opinion issued by the Office of Legal 
Counsel at the Department of Justice to the Office of Personnel 
Management on February 22, 1995, also discussed at length the 
prohibitions against partisan political participation on duty or on 
Federal premises, and Congressional intent in enacting it. The opinion 
stated:

    It is evident from the statements of the (Reform Amendments') 
leading sponsors that Congress intended to create a bright-line 
rule, with no exceptions: Section 7324(a) prohibits covered 
employees from engaging in all on-duty and on-site political 
activity. As the principal Senate sponsor of the bill states, on-
the-job political activity ``would be absolutely and unequivocally 
prohibited.'' 139 Cong. Rec. S8605 (daily ed. July 13, 1993) 
(statement of Senator Glenn). Thus, for example Congress intended to 
prohibit the wearing of political buttons on duty. Nor can covered 
employees stuff envelopes with political materials or send out 
campaign materials while they are on the job or in a federal 
building--such activities are permitted only off-site and ``off the 
job.''

    Thus, Congress clearly intended to prohibit partisan political 
participation on duty, and on Federal premises, and exempted only one 
category of employees from these prohibitions. Consequently, for the 
purposes of the Reform Amendments, OPM cannot define ``on duty'' to 
exclude ``official time,'' as that term is defined in the Labor 
Statute.
    In this connection, Example 5 in Sec. 734.306 of the interim 
regulations, which issued September 23, 1994 (59 FR 48756, 48773-
48774), provides that employees who are not on duty may engage in 
political activity in the office of their labor organization even if 
the space is provided by an agency or instrumentality of the United 
States Government. In view of the Office of Legal Counsel opinion of 
February 22, 1995, a subsequent intervening event, OPM found it 
necessary to revisit its initial review of the statutory scheme 
established through the Reform Amendments. Based on this further 
review, OPM has concluded that the Reform Amendments require it to 
treat the questions of time and space consistently in considering the 
activities which the Reform Amendments permit and prohibit. Moreover, 
it is clear both from OPM's statutory review and the Office of Legal 
Counsel opinion of February 22, 1995, that Congress intended to create 
a bright line prohibition against partisan political activities when 
conducted on duty or on Federal premises, or both. Consequently, OPM 
must remove Example 5 from Sec. 734.306 of the interim regulations.
    A Federal agency commented that the definition of ``political 
purpose'' should include non-partisan political purposes because many 
political purposes are non-partisan. In the interim regulations, the 
definition of ``political activity'' is limited to partisan political 
activity because OPM has interpreted the Reform Amendments as 
restricting Federal employees' participation in partisan political 
activities. The legislative history of the Reform Amendments shows that 
Congress was well aware that the Hatch Act prohibited active 
participation in partisan political activities and, in enacting the 
Reform Amendments, Congress was referring to partisan purposes and 
activities when referring to a political purpose or political activity. 
S. Rep. No. 57, 103rd Cong. 1st Sess. 2-6, 13-14, 24-39 (1993); 139 
Cong. Rec. S8605-8606 (daily ed. July 13, 1993) (statement of Senator 
Glenn); id. at S8685-8686 (daily ed. July 14, 1993) (statement of 
Senator Roth); id. at S8701-8703 (daily ed. July 14, 1993) (statement 
of Senator Stevens); id. at S8946 (daily ed. July 20, 1993) (statement 
of Senator Durenberger); id. at S8947-8948 (daily ed. July 20, 1993) 
(statement of Senator Levin). See H.R. Rep. No. 16, 103rd Cong. 1st 
Sess. 16 (1993) (to accompany H.R. 20). President Clinton's remarks on 
signing the Reform Amendments, delivered October 6, 1993, the day on 
which he signed the Reform Amendments, reflect his understanding that 
the terms ``political purpose'' and ``political activity'' refer to 
partisan political purposes and partisan political activities. He 
stated:

    The Federal Employees Political Activities Act, which I'm about 
to sign, will permit Federal employees and postal workers on their 
own time to manage campaigns, raise funds, to hold positions within 
political parties. Still, there will be some reasonable 
restrictions. They wouldn't be able to run for partisan political 
office themselves, for example, and there will be some new 
responsibilities, which I applaud the Federal employees' unions for 
embracing and supporting.
    While we restore political rights to these millions of citizens, 
we also hold them to high standards. The Federal workplace, where 
the business of our Nation is done will

[[Page 35091]]

still be strictly off limits to partisan political activity.

    Therefore, defining ``political purpose'' as a partisan political 
purpose is consistent with other definitions in the regulations, 
Congressional intent as reflected in the legislative history of the 
Reform Amendments, and President Clinton's understanding of the term 
``political activities'' as reflected in his remark on signing the 
Reform Amendments.
    Two Federal agencies and one Federal labor union commented that the 
interim regulations do not provide enough guidance concerning 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 or instrumentality thereof.'' The Federal labor 
organization noted that the regulations did not specify which areas in 
a ``room or building * * * '' encompasses. Another Federal agency noted 
that the regulations did not address use of areas such as recreational 
space in leased space or cafeterias, hallways, restrooms and employee 
lounges. In response to these comments, OPM has added a definition of 
``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.''
    The definition specifically excludes those rooms in the White House 
which are part of the Residence area or which are not regularly used 
solely in the discharge of official duties. This exclusion is based on 
the January 17, 1979, opinion of the Office of the Legal Counsel of the 
Department of Justice. The same principles that govern the White House 
also would apply to the residence of the Vice President which, 
historically, has been treated like the White House. Therefore, the 
same analysis and conclusions that apply to the White House also apply 
to the residence of the Vice President.
    The Federal labor organization further commented that political 
activities in areas defined as ``public areas'' in the General Services 
Administration's (GSA's) Federal Property Management Regulations should 
not be prohibited because GSA's regulations create a protected public 
forum. OPM sought comment from GSA on the issue of ``public areas''. 
GSA noted that ``public areas'' remain ``rooms or buildings'' even when 
in use by the public for cultural, recreational, or educational 
activities governed by the Cooperative Use Act of 1976, 40 U.S.C. 
490(a)(17), as implemented in the Federal Property Management 
Regulations at 41 CFR subpart 101-20.4. GSA provided that the 
Cooperative Use Act and the Reform Amendments should be read together. 
Accordingly, the definition of ``room or building'' incorporates the 
definition of ``public area'' in 40 U.S.C. 490(a)(17) and 41 CFR 101-
20.003.
    OPM also sought comments on this issue from the United States 
Office of Special Counsel (OSC), which noted that the GSA regulations 
at 41 CFR 101-20.003 define ``public areas'' as any areas of a building 
under the control and custody of GSA which ordinarily are open to the 
public, such as lobbies, meeting rooms, auditoriums, and similar areas 
not assigned to a lessee or occupant. OSC stated its belief that 
permitting political activities ``in such generally defined areas could 
lead to confusion and enforcement problems in trying to determine what 
parts of buildings remain `off limits' for such activity.'' It noted 
further that ``allowing political activity in a hallway and courtyard 
but not a conference room, or in an auditorium but not a cafeteria, 
could result in confusing and possibly unenforceable interpretations.''
    Moreover, the Supreme Court noted in Cornelius v. NAACP Legal 
Defense and Education Fund, Inc., 47 U.S. 788, 802-903 (1985), a 
designated public forum is created in a Federal office building, or any 
other government property, only when there is a ``clear intent to 
dedicate the property for assembly, debate and speech.'' The 
Cooperative Use Act does not dedicate every public building as a public 
forum, but only authorizes the GSA Administrator to make certain spaces 
available ``on occasion'' and ``on such other terms and conditions as 
the Administrator deems to be in the public interest'' if such use 
``will not disrupt the operation of the building.'' In Cornelius, the 
Supreme Court held that it will not ``infer that the government 
intended to create a public forum when the nature of the property is 
inconsistent with expressive activity'' and is reluctant to find a 
``designated public forum,'' if expressive activity would disrupt the 
principal function of the property. Id. at 803-804. In addition, in 
Greer v. Spock, 424 U.S. 828, 831-836 (1976) the Court held that 
allowing some speech or expressive activity in a forum does not 
dedicate the property as a ``public forum'' for free and uninhibited 
expressive activity by the public. Accordingly, ``public areas'' are 
not ``public fora'' and employees are prohibited from engaging in 
partisan political activity in those areas. In view of this, OPM has 
deleted Example 11 from Sec. 734.306 which provides that a Federal 
employee may engage in political activity in the courtyard outside of a 
Federal building when the employee is not on duty.
    One Federal agency commented that the regulations did not specify 
whether an area leased to contractors such as a cafeteria or fitness 
facility is a ``room or building * * * .''. Pursuant to the discussion 
above, we have added an example in Sec. 734.306 providing that 
employees may not engage in partisan political activity in space leased 
to contractors in Federal buildings.
    Regarding Sec. 734.306 of the interim regulations, a Federal labor 
organization commented that the regulations imply that the prohibition 
on political activities in rooms or buildings occupied in the discharge 
of official duties does not extend to areas not controlled by the 
Government, such as union offices and the leased offices of candidates. 
The labor organization suggested modifying Example 5 in Sec. 734.306 to 
state that political activity is permitted in space, such as meeting 
rooms or other facilities, temporarily under the control of labor 
organizations or other non-government entities. In view of the Reform 
Amendments' prohibition against partisan political participation on 
Federal property, and the Office of Legal Counsel's interpretation of 
that prohibition, as described in the discussion relating to the 
definition of the item ``on duty'' in Sec. 734.101, OPM must remove 
this example from Sec. 734.306.
    A Federal employee labor organization commented that the definition 
of ``subordinate'' in the interim regulations would suggest that it 
includes more categories of employees than the definitions of the terms 
``supervisor'' and ``management official'' in 5 U.S.C. 7103(10) and 
(11). This organization suggested that, rather than defining the term 
``subordinate,'' the regulations use the definition of ``supervisor'' 
in 5 U.S.C. 7103(10), because the definition of ``supervisor'' is 
familiar to many Federal employees. The interim regulations define 
``subordinate'' as ``the relationship between two employees when one 
employee is under the supervisory authority, control or administrative 
direction of the other employee.'' OPM believes that the definition of 
``subordinate'' is clear and relects the intent of Congress to prevent 
any coercion of subordinate employees by a supervisor or any other 
employee who may otherwise direct, control or exercise authority over 
an employee.
    Section 734.102 outlines the authority of the Office of Personnel 
Management, the Office of Special Counsel, and the

[[Page 35092]]

Merit Systems Protection Board under the Reform Amendments and the 
implementing regulations. One Federal employee labor organization 
commented that this section should cite to the Reform Amendments as the 
underlying authority. OPM agrees and has added these citations.
    One Federal agency and one Federal employee labor organization 
commented that the regulations do not specify whether the Office of 
Special Counsel and the Merit Systems Protection Board have exclusive 
jurisdiction. OPM agrees that the regulations need clarification. 
Individual agencies do not have authority to investigate suspected 
political activity violations or to impose administrative remedies. 
Therefore, OPM is changing the regulations to reflect that the Office 
of Special Counsel and the Merit Systems Protection Board have 
exclusive jurisdiction.
    Section 734.104 prohibits further restriction on the political 
activities of covered employees except for employees who are appointed 
by the President by and with the advice and consent of the Senate, 
employees who are appointed by the President, non-career Senior 
Executive Service members, Schedule C employees (appointed pursuant to 
5 CFR 213.3301, 213.3302) and any other employees who serve at the 
pleasure of the President. A Federal agency suggested adding a new 
subsection to cover United States Trustees appointed under 28 U.S.C. 
581. The exceptions in Sec. 734.104 are based upon a September 20, 1994 
opinion of the Office of Legal Counsel of the Department of Justice 
issued to the Office of Personnel Management which provided that an 
Administration could impose additional restrictions on the specific 
groups of political appointees outlined in Sec. 734.104. Accordingly, 
the President or his designee may further restrict the political 
activities of the specific employees described in Sec. 734.104. 
However, pursuant to 28 U.S.C. 581, United States Trustees serve at the 
pleasure of the Attorney General, not the President, and do not fall 
within the exceptions provided by the Office of legal counsel Opinion. 
therefore, OPM does not have the authority to add the United States 
Trustees to the list in Sec. 734.104.

Subpart B--Permitted Activities

    Section 734.203 of the interim regulations permits employees under 
subpart B (Permitted Activities) to participate in nonpartisan 
political activities and describes various nonpartisan activities. A 
Federal employee labor organization noted that Sec. 734.203 fails to 
reflect that 5 U.S.C. 7211 provides Federal employees with a statutory 
right to petition Congress. It further commented that this issue is 
confusing to Federal employees, and suggested adding another example to 
Sec. 734.203 which illustrates that the Reform Amendments do not 
prohibit Federal employees from exercising their rights under 5 U.S.C. 
7211. OPM agrees with this suggestion, and has added such an example to 
Sec. 734.203.
    Section 734.204 of the interim regulations concerns permitted 
participation in political organizations. A Federal agency suggested 
amending this section by adding another paragraph which specifies that 
an employee may serve as a delegate, alternate, or proxy to a political 
party convention. OPM agrees with this suggestion and has added such a 
paragraph to Sec. 734.204.
    Example 2 in Sec. 734.204 specifies that an employee may serve as 
an officer of a partisan or nonpartisan political action committee, as 
long as the employee does not personally solicit, accept, or receive 
political contributions. A Federal employee labor organization 
suggested clarifying the example by stating that ministerial activities 
which precede or follow the official acceptance and receipt of 
contributions are not covered under the regulatory definitions of 
``accept'' and ``receive.'' OPM agrees with this suggestion and has 
amended Example 2 accordingly. Example 2 also describes a political 
action committee as partisan or nonpartisan. This description does not 
accord with the definition of political action committee that OPM has 
added to its political activity regulations at 5 CFR part 734. The 
definition of this term does not distinguish between partisan and 
nonpartisan political action committees. Therefore, OPM has further 
amended Example 2 by removing the descriptive terms ``partisan'' and 
``nonpartisan.''
    Section 734.205 of subpart B (Permitted Activities) describes 
permissible political activities connected with participation in 
campaigns for partisan political office. Example 5 in this section 
specifies that an independent contractor is not covered under subpart B 
and may display a political button while performing his contractual 
duties. A Federal employee labor organization submitted several 
comments concerning the display of political buttons by employees who 
are covered under subpart B. OPM has discussed those comments in 
connection with its discussion of Sec. 734.306, infra, which prohibits 
partisan political participation while on duty, in uniform, in any room 
or building occupied in the discharge of official duties, or while 
using a Government-owned or leased vehicle.
    Section 734.207 concerns candidacy for public office and permits 
employees to run as independent candidates in the local partisan 
elections described in 5 CFR part 733, or as candidates in nonpartisan 
elections. A Federal agency proposed that OPM add an example to this 
provision specifying that employees may distribute campaign leaflets, 
even though the leaflets include information on where to send 
contributions. The Federal agency further noted that the example also 
should specify that the employee should refer to another campaign 
worker any questions concerning further information about 
contributions. OPM agrees with this suggestion, but has provided in the 
example that such questions should be referred to another campaign 
worker who is not a Federal employee. OPM also believes that it would 
be more appropriate to add the example to Sec. 734.205, which concerns 
participation in campaigns for partisan political office, rather than 
to Sec. 734.207.
    Section 734.208 describes permissible activities connected with 
participation in fundraising. Subsection (b)(2) permits employees to 
accept and receive political contributions in a partisan election 
described in 5 CFR part 733, which pertains to the political activities 
of covered employees who reside in certain localities designated by 
OPM. A Federal agency stated its belief that subsection (b)(2) 
conflicts with the statutory definition of the term ``political 
contribution'' included in section 2(a) of the Reform Amendments and 
codified at 5 U.S.C. 7322(3), as amended, which does not refer to 
contributions for ``partisan'' political purposes. Therefore, the 
Federal agency suggested deleting subsection (b)(2) from Sec. 734.208 
of the OPM regulations.
    Section 2(a) of the Reform Amendments, codified at 5 U.S.C. 7325, 
as amended, authorizes OPM to issue regulations permitting employees, 
``without regard to the prohibitions in paragraphs (2) and (3) of 
section 7323(a) (of title 5, United States Code),'' to take an active 
part in certain local elections. Section 7323(a)(2) and (3), 
respectively, prohibit employees from knowingly soliciting, accepting, 
or receiving political contributions, and from running ``for the 
nomination or as a candidate for election to a partisan political 
office.'' Candidacy for partisan political office occurs within the 
context of partisan political elections. Accordingly, 
Sec. 734.208(b)(2) of the OPM regulations does not conflict with the

[[Page 35093]]

definition at 5 U.S.C. 7322(3), as amended. Therefore, OPM has not 
deleted Sec. 734.208(b)(2) from the final version of its regulations.
    Section 734.208(b)(4)(ii) of the regulations provides that, under 
specified limited circumstances, an employee may solicit, accept, or 
receive political contributions from another employee who is not a 
subordinate employee. A Federal employers labor organization suggested 
including in the regulations the definition of the term ``supervisor'' 
stated at 5 U.S.C. 7103(10). This suggestion already has been addressed 
in the discussion of Sec. 734.101 of the Regulations.
    Example 5 in Sec. 734.208 prohibits employees from making telephone 
solicitations for political contributions, even anonymously. A Federal 
employee labor organization noted that, if a telephone solicitation 
truly was anonymous, there would be no way of finding the employee who 
might have made the solicitation. The Federal employee labor 
organization further noted that a reference to anonymous telephone 
solicitations might even encourage employees to make such 
solicitations. Consequently, it suggested that OPM delete the reference 
to anonymous telephone solicitions in Example 5. OPM believes that this 
reference makes it clear to Federal employees that, except for 
solicitations made under the circumstances described in 5 U.S.C. 
7323(a)(2), solicitations of political contributions, even anonymous 
telephone solicitations, are prohibited under the Reform Amendments. 
Therefore, OPM will retain the reference to anonymous telephone 
solicitations in Example 5.
    Example 11 in Sec. 734.208 provides that a Federal employee may 
solicit, accept, or receive the uncompensated volunteer services of any 
individual, except a subordinate employee, to work on behalf of a 
partisan political candidate or organization. A Federal employee labor 
organizations suggested deleting the phrase ``except a subordinate 
employee'' from Example 11. The labor organization said that the 
interim regulations clearly specify that a political contribution does 
not include the uncompensated volunteer services of an individual. 
Thus, the labor organization did not find any basis for the example 
prohibiting any employee from soliciting the volunteer services of 
another employee.
    Although it is true that uncompensated volunteer service of an 
individual is not a political contribution, OPM believes that 
soliciting such services from subordinate employees is covered under 
Sec. 734.302, which prohibits employees from using their official 
authority or influence for the purpose of influencing or affecting the 
results of an election. OPM further believes that removing the 
reference to subordinate employees in Example 11 would mislead 
employees into believing that part 734 permits employees to solicit, 
accept ore receive such services from subordinate employees. Therefore, 
OPM has retained the reference to subordinate employees in Example 11.
    The labor organization also said that Example 11 is at odds with 
Example 4 in Sec. 734.208, which permits employees to sign letters 
soliciting the contribution of uncompensated services of individuals. 
It noted that, in a mass mailing, an employee's subordinates might 
receive these letters. OPM agrees that Example 4 is confusing and 
requires clarification in this regard. Therefore, it has revised 
Example 4 to specify that an employee may not knowingly send such a 
letter to his or her subordinate employees. However, Example 4 also 
will specify that it is permissible to sign such letters as part of a 
general mass mailing, as long as the mailing is not specifically 
targeted to one's subordinate employees.
    Another Federal employee labor organization noted that employees 
who are not members may contribute to the labor organization's 
political action committee, but Federal employees associated with the 
labor organization may not accept or receive the contribution. It 
suggested that Sec. 734.208 might be clarified through an additional 
example stating that a Federal employee labor organization can receive 
contributions, independent of their receipt by Federally employed 
members of the labor organization, and describing procedures for making 
such contributions. OPM believes that the regulations clearly state 
that any employee may contribute to the multicandidate political action 
committee of a Federal labor or Federal employee organization, and that 
the Federally employed members of such organizations may not accept 
contributions from Federal employees who are not organization members. 
Therefore, OPM believes that it is not necessary to add the suggested 
example to Sec. 734.208.
    Finally, the Reform Amendments include an exception to the general 
prohibition on soliciting, accepting, or receiving political 
contributions. This exception permits employees to solicit, accept, or 
receive such contributions from other employees who are not subordinate 
employees and who are members of the same Federal labor organization or 
Federal employee organization for the multicandidate political 
committees of their organizations. It may not be clear to employees 
that this exception only extends to the general prohibition against 
soliciting, receiving, or accepting political contributions. It does 
not extend to the other prohibitions against engaging in partisan 
political activities either while on duty, or while on Federal 
premises, or both. Thus, employees may solicit, accept, and receive 
political contributions for the multicandidate political committees of 
their organizations from employees who are not subordinates and who 
belong to the same Federal labor or employee organization. However, 
they may not conduct such activities either while they are on duty, or 
while on Federal premises, or both. Accordingly, OPM has added an 
example to Sec. 734.208 to clarify this matter. In addition, OPM notes 
that labor organizations certified by the National Labor Relations 
Board pursuant to 29 U.S.C. 151 et seq. to represent Postal Service 
employees are not covered under the definition of ``labor 
organization'' in 5 U.S.C. 7103(4) and, therefore, are not Federal 
labor organizations within the meaning of the Reform Amendments. 
However, these Postal Service labor organizations clearly qualify as 
Federal employee organizations for purposes of the Hatch Act Reform 
Amendments.

Subpart C--Prohibited Activities

    Section 734.302 prohibits employees from using their official 
authority or influence in order to interfere with or affect the results 
of an election. A Federal agency commented that this section does not 
give adequate guidance and needs to be clarified. The agency noted that 
if the section intended to prohibit misues or coercion that it did not 
clearly do so. OPM agrees that the Reform Amendments intended to 
prevent employees from misusing their official authority or influence 
in order to interfere with or affect the result of an election. OPM is 
revising its regulations to clarify that Sec. 734.302 not only 
prohibits the misuse of official authority such as the use of an 
official title, as distinguished from a general form of address such as 
``The Honorable,'' while participating in partisan political 
activities, but also bans coercive actions such as awarding contracts 
on the basis of contributions to partisan political campaigns or 
soliciting subordinates for any partisan political purpose. OPM notes 
in this regard that the merit system principles, at 5 U.S.C. 
2301(b)(8), provide that employees should be protected against 
arbitrary

[[Page 35094]]

action, personal favoritism, and coercion for partisan political 
purposes. Section 2301(b)(8) also provides that employees should be 
prohibited from using their official authority to interfere with or 
affect an election or a nomination for election. Moreover, 5 U.S.C. 
2302(b)(3) makes it a prohibited personal practice to coerce the 
political activity of any person (including the providing of any 
political contribution or service), or to take action against an 
employee for his or her refusal to participate in these political 
activities. Thus, soliciting uncompensated volunteer services from a 
subordinate for a political purpose clearly falls within the 
prohibition against the use of official authority to interfere with or 
affect an election.
    Accepting or receiving uncompensated volunteer services from a 
subordinate results in as great a potential for coercion, or the 
appearance of coercion, as soliciting such services from a subordinate. 
Although an employee might not directly solicit uncompensated volunteer 
services from a subordinate, he still could make it clear to the 
subordinate in more subtle ways that it would be in the subordinate's 
best interest to provide such services. In view of a superior's 
authority to promote, discipline, issue awards, or take other personnel 
actions affecting an employee's career, or to make recommendations 
regarding such actions to an official above him in the chain of 
command, and the potential for coercion that exists under such 
circumstances, accepting and receiving uncompensated volunteer services 
from subordinates also falls within the prohibition against the use of 
official authority to interfere with or affect the results of an 
election. Accordingly, OPM will retain the prohibition against 
accepting and receiving uncompensated volunteer services from 
subordinates.
    Section 734.303 describes prohibited activities connected with 
fundraising. Subsection (d) prohibits employees from soliciting, 
accepting, or receiving uncompensated volunteer services from 
individuals who are subordinates. A Federal employee labor organization 
commented that, because the definition of ``political contribution'' 
does not include uncompensated volunteer services, employees should not 
be prohibited from soliciting, accepting, or receiving such services 
from their subordinates. For the reasons stated in its discussion of 
Sec. 734,302, supra, OPM is retaining these prohibition in its 
political activity regulation at part 734.
    A Federal agency noted that the regulations do not reflect 
specifically that, as long as an employee is not coerced, the employee 
may voluntarily donate uncompensated volunteer services to his 
supervisor. While OPM's regulations do not specifically prohibit an 
employee from voluntarily donating uncompensated volunteer services to 
his supervisor, Sec. 734.303(d) of the regulations does prohibit a 
supervisor from accepting such services. Therefore, the concern 
expressed by this agency in its comment has been adequately addressed 
in the regulation.
    This prohibition clearly would not apply to requests for volunteer 
services made by the President or the Vice-President to the employees 
specified in 5 U.S.C. 7324(b)(2) whose duties and responsibilities 
continue outside of normal duty hours and away from the normal duty 
post, and who are (1) paid from an appropriation for the Executive 
Office of the President, or (2) appointed by the President, by and with 
the advice and consent of the Senate, whose positions are located 
within the United States and who determine policies to be pursued by 
the United States in relations with foreign powers or in the nationwide 
administration of Federal laws. Congress recognized their special 
status in specifically excluding them from the prohibitions against 
political participation while on duty, in uniform, on Federal premises, 
or using a Government vehicle. Moreover, the President and Vice-
President of the United States specifically are excluded from the 
definition of employee in 5 U.S.C. 7322(1) and, therefore, they are not 
subject to the prohibitions on political activity in Reform Amendments 
or part 734.
    The agency also asked whether a subordinate employee may speak at a 
political event in place of his superior, a PAS employee, when the PAS 
employee suddenly learns that she cannot attend the event. The 
regulations generally permit covered employees to speak at partisan 
political events, but prohibit an employee who does not qualify for 
coverage under subpart E of the interim regulations from giving such a 
speech while on duty.
    However, the ultimate answer to such questions depend on the facts 
and circumstances in each individual case, and also may involve issues 
related to the standards of ethical conduct for employees of the 
Executive Branch. Therefore, OPM has determined not to address in its 
regulatory examples the issues raised in the agency's comments, because 
such examples might be misleading. Individual detailed guidance on such 
fact based issues should be sought through an advisory opinion from the 
United States Office of Special Counsel and, if warranted, from the 
designated agency ethics official at the employee's agency.
    Example 2 in Sec. 734.303 states that an employee's name may not 
appear on an invitation to a fundraiser as a sponsor or a point of 
contact. A Federal employee labor organization commented that this 
example appeared to be inconsistent with Example 3 in Sec. 734.208 
which permits employees' names to appear on such invitations as guest 
speakers. It also commented that a point of contract on an invitation 
for a fundraiser would not necessarily be involved with soliciting, 
accepting or receiving political contributions in an official manner. 
Thus, it suggested amending Example 2 to provide that an employee's 
name could appear on an invitation as a point of contact for general 
information about a fundraiser.
    OPM does not believe that these two examples are inconsistent. A 
person who is identified as a point of contact on a fundraising 
invitation clearly gives the appearance of being associated with 
soliciting, accepting, or receiving political contributions. Such is 
not the case with a person who is only identified on the invitation as 
a guest speaker. Thus, OPM has decided not to amend Example 2 in 
Sec. 734.303.
    Example 3 in Sec. 734.303 provides that an employee may not ask a 
subordinate to volunteer on behalf of a partisan political campaign. 
Section 734.303 describes fundraising activities which are prohibited. 
A Federal employee labor organization suggested that OPM remove this 
example because individual uncompensated volunteer services are not 
political contributions. OPM has addressed the question of requesting 
subordinate employees to perform uncompensated volunteer services in 
Sec. 734.302, supra.
    Section 734.305 prohibits an employee from knowingly soliciting or 
discouraging the political participation of anyone who has matters 
pending before the employee's employing office or of anyone who is the 
subject of investigation or enforcement carried out by the employee's 
employing office. A Federal agency commented that the regulations 
should address soliciting or discouraging participation in non-partisan 
elections. As OPM stated above in response to comments on the 
definition of ``political purpose,'' the pertinent legislative history 
and the President's remarks on signing the Reform Amendments show that 
the Reform Amendments concern participation in partisan political 
activities. Consequently, the regulations do not address soliciting or 
discouraging participation in non-partisan political activities.

[[Page 35095]]

    This same Federal agency further requested that this section 
address whether an employee may endorse a candidate for an elective 
office, the duties of which require the incumbent of that office to 
consistently transact business before the agency. In this instance, it 
is impossible to provide an example that would accurately answer this 
agency's inquiry because the answers to such questions depend on the 
facts and circumstances of each individual case.
    This agency also asked whether employees appointed by the President 
by and with the advice and consent of the Senate (PAS) are prohibited 
from making political speeches in their personal capacity addressing 
issues related to agency business. The Reform Amendments and OPM 
regulations at part 734 generally do not prohibit a PAS from making a 
political speech in her personal capacity, providing that the President 
or his designee has not placed further restrictions on her political 
activities in accordance with Sec. 734.104, and the speech is not made 
to solicit or discourage the political participation of certain persons 
described in Sec. 734.305.
    Depending on the facts and circumstances associated with the 
speech, however, such activity also may be government by provisions 
other than the Reform Amendments. Because determinations on whether 
this activity is prohibited ultimately rest on the facts and 
circumstances of each individual case, employees should consult the 
Office of Special Counsel and, if warranted, the designated agency 
ethics official for advice.
    Section 734.305 requires that each agency or instrumentality of the 
United States or District of Columbia Government must determine when 
matters are pending and ongoing within the employing office of the 
agency or instrumentality. This same Federal agency also commented that 
the regulations should provide guidelines for agencies to follow in 
determining when a matter is pending or ongoing. Since there are great 
differences among agencies or instrumentalities, OPM disagrees with 
this comment and believes each agency and instrumentality should make 
its own determination.
    Section 734.306 prohibits employees covered by subparts B and C 
from participating in partisan political activities while they are on 
duty, in uniform, in 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, using a Government-owned or leased 
vehicle, or using a privately-owned vehicle in the discharge of 
official duties. An individual commented that, if OPM intended through 
its interim regulations to prohibit employees from wearing partisan 
political buttons while on duty, OPM should add a provision to subpart 
C, Prohibited Activities, explicitly stating that employees may not 
wear partisan political buttons while on duty. Two Federal agencies 
also suggested OPM might do this by adding an example to Sec. 734.036 
specifically stating that employees may not wear partisan political 
buttons while they are on duty or display partisan political materials 
at their work stations. OPM agrees with these suggestions and, through 
another example added to Sec. 734.306, has prohibited employees from 
wearing partisan political buttons while on duty.
    A Federal employee labor organization commented that the interim 
regulations permit SES members to wear partisan political buttons while 
they are on duty, but prohibit competitive service employees from 
wearing partisan political buttons under the same circumstances. The 
Reform Amendments' prohibition against partisan political participation 
on duty extends to all covered employees except for the two employee 
categories described in 5 U.S.C. 7324(b)(2) and covered under subpart E 
(Special Provisions for Certain Presidential Appointees and Employees 
Paid from the Appropriation for the Executive Office of the President). 
All other employees, including SES members, are prohibited from wearing 
partisan political buttons on duty.
    One Federal agency asked whether the prohibition on employees 
wearing political buttons while on duty extends to items worn on duty, 
or displayed in the work place, relating to candidates in nonpartisan 
elections or to nonpartisan issues. The interim regulations provide 
that the prohibition against political participation on duty only 
extends to partisan political participation. Thus, the prohibition 
against wearing political buttons on duty or displaying political items 
in the workplace does not extend to nonpartisan candidates or to 
nonpartisan issue-oriented campaigns.
    A Federal employee labor organization commented that wearing 
political buttons is an expression of speech guaranteed by the 
Constitution, as well as an expression of opinion about a political 
candidate that clearly is permitted under the Hatch Act and should 
continue to be permitted under the Reform Amendments. Citing American 
Federation of Government Employees AFL-CIO v. Pierce, 586 F. Supp. 1559 
(1984), the labor organization said that the prohibition against 
wearing political buttons on duty and the illustrative examples are 
overboard, and do not appear to have a specific purpose such as 
protecting the efficient performance of official duties or preventing a 
conflict, or apparent conflict, of interest.
    The legislative history of the Reform Amendments shows Congress was 
aware that, under the then-existing provisions of the Hatch Act, 
Federal employees were permitted to wear partisan political buttons 
while on duty. See 139 Cong. Rec. S8604-S8606 (daily ed. July 13, 1993) 
(statement of Senator Glenn). It also shows that Congress clearly 
intended to establish a bright-line rule prohibiting all political 
participation on duty, and that this rule extends to wearing partisan 
political buttons while on duty. S. Rep. No. 57, 103rd Cong. 1 st Sess. 
14 (1993), reprinted in 1993 U.S.C.C.A.N. 1082, 1815; 139 Cong. Rec. 
S8684 (daily ed. July 14, 1993) (statement of Senator Glenn); id. at 
S8765, S8770, S8785-S8786 (daily ed. July 15, 1993) (statement of 
Senator Glenn); id. at S8805, 8808 (daily ed. July 15, 1993) 
(statements of Senators Boxer and Sarbanes); id. at S8929 (daily ed. 
July 20, 1993) (statement of Senator Glenn). See H.R. Rep. No. 16, 
103rd Cong. 1st Sess. 16, 19-20 (1993) (to accompany H.R. 20).
    The legislative history of the Reform Amendments further shows that 
Congress focused on wearing partisan political buttons on duty because 
this activity could result in subtle and unspoken coercion when done by 
a supervisor, the appearance of a conflict of interest, and the 
erroneous identification of the Government as a supporter of particular 
partisan candidates, parties, or groups. 139 Cong. Rec. S8604-S8605 
(daily ed. July 13, 1993) (statement of Senator Glenn); id. at S8785 
(daily ed. July 15, 1993) (statement of Senator Glenn); id. at S8926 
(daily ed. July 20, 1993) (statement of Senator Glenn). See H.R. Rep. 
No. 16, 103rd Cong. 1st Sess. 16, 19-20 (1993) (to accompany H.R. 20). 
Thus, the regulatory prohibition against employees wearing partisan 
political buttons while on duty originates with the clear expression of 
Congressional intent in enacting these Amendments.
    American Federation of Government Employees v.  Pierce concerned a 
Veterans' Administration regulation prohibiting employees from wearing 
political buttons while on duty. The United States District Court for 
the District of Columbia struck down the prohibition as overboard, 
finding that the prohibition did not protect the

[[Page 35096]]

efficient performance of official duties or prevent a conflict or 
apparent conflict of interest.
    Current circumstances differ from the circumstances which resulted 
in the district court decision. At that time, the Hatch Act prohibited 
Federal employees from participating actively in any partisan political 
activities, and Federal employees clearly could not be associated with 
partisan political candidates, parties, or groups. Now the Reform 
Amendments permit most Federal employees to participate actively in 
almost all partisan political activities and to become prominently 
identified with partisan political candidates, parties, or groups. The 
expansion of such opportunities for Federal employees to become 
involved in, and identified with, partisan politics, increases the 
danger of erroneous perceptions about coercion of Federal employees or 
individual citizens having business with the Government, identification 
of the Government with specific partisan candidates or groups, 
favoritism in administering Government programs, and conflicts of 
interest. A prohibition narrowly tailored to displays of partisan 
political buttons, pictures, signs, stickers, or badges on duty or in 
the workplace clearly promotes the efficient performance of official 
duties and prevents a conflict or apparent conflict of interest under 
current circumstances.
    In a related matter, an individual, a Federal employee 
organization, and five Federal agencies commented unfavorably on the 
requirement to cover bumper stickers on personal vehicles, particularly 
during occasional use for official travel, such as driving the vehicle 
to the site of a training course. The labor organization commented that 
there was no rational basis for requiring employees to cover bumper 
stickers when they use their personal vehicles as incidental 
transportation, for example, in lieu of taking a taxi to or from 
another agency for a meeting. The labor organization stated that the 
requirement was not realistic and suggested that it should apply only 
when the private vehicle itself is used in the performance of official 
duties, such as delivering mail on a rural route or inspecting crops. 
The agencies and individual commented that the requirement to cover 
bumper stickers when using a personal vehicle for official business was 
excessive, unreasonable, unduly burdensome, and virtually 
unenforceable.
    OPM agrees that a requirement to cover bumper stickers in every 
instance is not practical and would be difficult to enforce where 
employees use their private vehicles only occasionally, such as in 
driving to a meeting or training course. Imposing this requirement 
within the context of such occasional use of private vehicles would 
result in inadvertent violations by employees who easily may forget to 
cover the bumper stickers on their vehicles, and would be very 
difficult to enforce. Therefore, OPM has amended the examples in 
Sec. 734.306 to reflect that the requirement to cover bumper stickers 
on private vehicles only applies when the vehicle is used for official 
business on a recurrent basis, or clearly is identified as being on 
official business, and does not apply to the occasional use of such a 
vehicle for official business. However, within this context, OPM also 
desires to make it clear to covered employees that they are prohibited 
from placing partisan political bumper stickers on any Government-owned 
or leased vehicle.
    OPM accordingly has defined the terms ``recurrent'' and 
``occasional'' in Sec. 734.101. These definitions are based on common 
usage. The Random House Dictionary of the English Language 
(Unabridged), 2d Ed., 1987, defines ``occasional'' as ``occurring or 
appearing at irregular or infrequent intervals; occurring now and then; 
acting or serving for the occasion or only on particular occasions.'' 
Webster's Third New International Dictionary of the English Language 
(Unabridged), 1966 Ed., defines ``occasional'' as ``occurring or 
operating on a particular occasion; proceeding from the occasion; met 
with, appearing, or occurring irregularly and accordingly to no fixed 
or certain scheme; infrequent.''
    The Random House Dictionary defines ``recurrent'' as ``occurring or 
appearing again, esp. repeatedly or periodically.'' Webster's 
Dictionary defines ``recurrent'' as ``returning from time to time; 
appearing or coming periodically; happening again and again.'' Finally, 
the Oxford English Dictionary (1933) defines ``recurrent'' as occurring 
or coming again (esp. frequently or periodically); reappearing.'' The 
regulatory definitions of ``occasional'' and ``recurrent'' incorporate 
these concepts.
    Example 6 of Sec. 734.306 of the interim regulations concerns 
political activities in a commercial building where Government agencies 
and instrumentalities lease office space, and where the headquarters of 
a candidate for partisan political office also are situated. The 
example provides that an employee of the Government agency or 
instrumentality may do volunteer work at the candidate's headquarters 
when the employee is not on duty.
    OPM believes that this example is confusing because it suggests 
that employees may participate in political activities only in the 
candidate's headquarters, and not elsewhere in the building. Therefore, 
OPM has revised the example to clarify that, when employees are not on 
duty, the Reform Amendments do not prohibit them from participating in 
political activities in the other areas of the building that are not 
leased by the Government, including public areas that are shared by all 
of the tenants, such as the main lobby. Although the Reform Amendments 
would not prohibit employees from political participation in areas that 
are shared by all of the tenants, OPM notes that political activities 
in these areas may be restricted by the landlord.
    For purposes of contrast and further clarification, OPM has 
included an additional example specifying that, where a Government 
agency or instrumentality leases all of the space in a commercial 
building, employees may not participate in political activity in any 
area of the building, including the public areas of the leased 
building.
    OPM believes this distinction is in accord with the February 22, 
1995 opinion of the Office of Legal Counsel at the Department of 
Justice to the Office of Personnel Management. That opinion stressed 
that Congress intended to create a bright-line rule against 
participating in partisan political activities while on Federal 
premises. To apply this prohibition to all areas of a commercial 
building, when the Government has leased only a part of the building, 
would undermine the bright-line rule described in the Office of Legal 
Counsel opinion. Accordingly, distinguishing between a commercial 
building in which the Government has leased part of the space and a 
commercial building in which the Government has leased all of the space 
accords with the Congressional intent of establishing a bright-line 
rule as described in the Office of Legal Counsel opinion.
    Example 10 of Sec. 734.306 of the interim regulations provides that 
Federal employees may participate in partisan political activities 
while they are sitting in the park on their lunch break, if they are 
not on duty during their lunch break. A Federal agency suggested that 
the regulations specify when Federal employees would not be on duty 
during their lunch breaks, and that individual agencies should 
determine whether employees are on duty at that time. In general, 
employees who are covered by title 5, United States Code, are not in a 
pay status during a bona fide lunch break and, therefore, they are not 
on duty. However, for the

[[Page 35097]]

purposes of these regulations, an employee still is considered to be on 
duty during his lunch hour when he is representing an agency or 
instrumentality of the United States in an official capacity during 
that time.
    Example 1 of Sec. 734.307 prohibits the Federally employed spouses 
of candidates for partisan political office from soliciting, accepting, 
or receiving contributions of money or personal services. A federal 
employee labor organization suggested deleting personal services from 
Example 1 because soliciting volunteer services is not prohibited. 
Although personal services are different from the uncompensated 
volunteer services of an individual, it is clear from the comment that 
use of the term ``personal services'' in Example 1 is confusing. To 
clarify the example, OPM has deleted the term ``personal services'' 
from Example 1, and substituted the phrase ``paid or unpaid services of 
a business or corporation.''

Subpart D--Employees in Certain Agencies and Positions

    Subpart D of the regulations concerns the political activities of 
employees in the sensitive agencies and positions that are listed in 
Sec. 734.401. Through section 501(k) of Pub. L. 103-359 (October 14, 
1994), Congress added the Central Imagery Office to the sensitive 
agencies and positions listed in 5 U.S.C. 7323 (b)(2)(B)(i). 
Accordingly, OPM has added the Central Imagery Office to the agencies 
and positions listed in Sec. 734.401(a) of the regulations.
    Section 734.402 of subpart D describes permissible expressions of 
individual opinion for these employees. Subsection (b) of Sec. 734.402 
provides that they may display partisan political pictures, signs, 
stickers, badges, or buttons, as long as these items are displayed off 
duty and away from Federal premises in accordance with the provisions 
of Sec. 734.408. Two Federal agencies suggested changing the cross-
reference in subsection (b) from Secs. 734.408 to 734.406. Section 
734.408 generally prohibits active participation in partisan political 
management and partisan political campaigns. Section 734.406 prohibits 
political participation while on duty, in uniform, in any room or 
building occupied in the discharge of official duties, or using a 
Federal vehicle. We agree with the suggestions that a cross-reference 
to Sec. 734.406 would be more appropriate, and have changed 
Sec. 734.402(b) to reflect this. OPM also has amended Example 5 in 
Sec. 734.402 to reflect when it is permissible for an employee who is 
covered under subpart D to wear a partisan political button and, for 
purposes of clarification, has added another example providing that an 
employee may place partisan political signs on his or her private 
property.
    Section 734.404 describes permissible participation in political 
organizations. Subsection (c) provides that employees may attend 
political conventions, rallies, fund-raising functions, or other 
political gatherings. A Federal agency noted that Example 1 appears to 
contradict, rather than to illustrate, this principle by prohibiting 
employees from participating in demonstrations or parades while they 
are attending a convention or rally. The Federal agency suggested that 
OPM should explain further exactly what activities are permissible, or 
define what is meant by attending a convention, rally, or other 
political gathering.
    OPM agrees that Example 1 in Sec. 734.404 should be clarified. 
Although employees may attend the conventions and rallies of political 
parties or partisan political groups, joining in the parades and 
demonstrations held at these functions is considered active 
participation in partisan political activity. Therefore, Example 1 in 
Sec. 734.404 has been amended to reflect that employees may attend 
partisan political conventions or partisan political rallies solely as 
spectators, but they may not participate in demonstrations or parades 
at these partisan political functions.
    Section 734.406 prohibits employees from participating in political 
activities while they are on duty, in uniform, in any room or building 
occupied in the discharge of official duties, or using a Federal 
vehicle.
    Another Federal agency asked whether Sec. 734.406 prohibits 
displays in the workplace or while on duty of pictures, signs, badges, 
or buttons for candidates in non-partisan elections or for ballot 
issues not specifically identified with a political party. The interim 
regulations provide that the prohibition against political 
participation on duty only extends to partisan political participation. 
Thus, the prohibition against wearing political buttons on duty or 
displaying political items in the workplace does not extend to displays 
for candidates in nonpartisan elections or to issues that are not 
specifically identified with a political party.
    The same Federal agency requested clarification on the restriction 
in Sec. 734.406(a)(4) of participating in political activities while 
using a privately owned vehicle in the discharge of official duties. 
The agency noted that, since political participation includes displays 
of partisan political bumper stickers, the restriction could be 
interpreted as barring employees from having such bumper stickers on 
their private vehicle if the employees use the vehicle for official 
travel. The agency further noted that enforcement of such a restriction 
would be impractical. We agree with this assessment, and have added 
clarifying examples to Sec. 734.406 applying the restriction only to 
privately owned vehicles that are used for official business on a 
recurrent basis or clearly are identified as being on official 
business. The restriction does not apply to the occasional use of such 
a vehicle for official business. The terms ``occasional'' and 
``recurrent'' are defined in Sec. 734.101.
    In a related matter, an individual and two Federal agencies 
generally commented in connection with subpart C that, if OPM intended 
through its interim regulations to prohibit employees from wearing 
partisan political buttons while on duty, OPM should add a provision 
explicitly stating that employees may not wear partisan political 
buttons while on duty. Two Federal agencies suggested OPM might do this 
by adding an example specifically stating that employees may not wear 
partisan political buttons while they are on duty or display partisan 
political materials at their work stations. OPM believes that these 
suggestions are instructive with regard to subpart D. Therefore, OPM 
has added to Sec. 734.406 another example which specifies that wearing 
partisan political buttons while on duty or displaying partisan 
political items in the workplace is prohibited.
    An agency commented that Secs. 734.408 and 734.411(a) prohibit the 
same behavior, are duplicative and potentially confusing, and should be 
combined. Section 734.408 generally prohibits active participation in 
political management and campaigns, ``except as permitted by this 
part.'' Section 734.411(a) prohibits active participation in managing 
the political campaign of a candidate for partisan political or party 
office. Section 734.408 covers a broader range of political activities 
than Sec. 734.411(a), which prohibits active participation in managing 
the political campaign of a candidate for partisan political office or 
political party office. Section 734.408 also prohibits activities 
described in Secs. 734.409 and 734.410, as well as in the remaining 
subsections of Sec. 734.411. Although OPM has not combined 
Secs. 734.408 and 734.411(a), OPM believes that the phrase ``except as 
permitted by this part'' in Sec. 734.408 is confusing because employees 
covered under this section are permitted to

[[Page 35098]]

participate only in the political activities described in subpart D. 
Therefore, OPM revised this phrase to include a reference to ``subpart 
D'' rather than to ``this part.''
    Section 734.412(a) of the interim regulations provides that an 
employee covered under subpart D may not be a candidate for partisan 
political office except as described in Sec. 734.403 which permits 
candidacy in nonpartisan elections. A Federal agency commented that the 
exception in Sec. 734.412(a) should be eliminated because it is 
meaningless and confusing. OPM agrees with this suggestion; a 
nonpartisan election by definition cannot include any candidates for 
partisan political office. Therefore, OPM has removed from 
Sec. 734.412(a) the reference to Sec. 734.403.

Subpart E--Special Provisions for Certain Presidential Appointees and 
Employees Paid From the Appropriation for the Executive Office of the 
President

    A Federal agency suggested that Sec. 734.502(a)(2)(ii) include 
examples of, or a method for determining whether, an employee who is 
appointed by the President, by and with the advice and consent of the 
Senate, ``determines policies to be pursued by the United States in 
relations with foreign powers or in the nationwide administration of 
Federal laws.'' OPM cannot devise a precise procedure that would apply 
to all positions that might be covered under Sec. 734.502(a)(2)(ii) 
because each position has its own unique qualifications and duties. In 
view of this, providing examples of covered positions based on 
descriptions of their duties and responsibilities would not be of 
assistance is deciding whether a position meets the criteria in 
Sec. 734.502(a)(2)(ii). Thus, determinations concerning the coverage of 
a specific position under Sec. 734.502 must be made on an individual 
basis by the President or his appropriate designee.
    Section 734.502(d) provides that an employee, to whom subpart E of 
part 734 does not apply and who is not on duty, may participate in 
political activities in rooms of the White House which are part of the 
Residence area or which are not regularly used solely in the discharge 
of official duties. In its discussion of the Residence area of the 
White House in connection with Sec. 734.101, OPM noted that the same 
principles that govern the White House also should apply to the 
residence of the Vice President which, historically, has been treated 
like the White House. OPM also noted that the same analysis and 
conclusions that apply to the White House also apply to the residence 
of the Vice President. Therefore, OPM is amending Sec. 734.502(d) to 
include the residence of the Vice President.
    One Federal agency commented that all Inspectors General, including 
those appointed by the heads of designated Federal entities pursuant to 
the Inspector General Act of 1978, section 8G, should be prohibited 
from taking an active part in political management or political 
campaigns. We find no basis for this across-the-board restriction of 
all such Inspectors General. Section 3(c) of the Inspector General Act, 
which provides that for the purposes of section 7324 of title 5, United 
States Code, an Inspector General is not considered to determine 
policies to be pursued by the United States in the nationwide 
administration of Federal laws, applies only to an Inspector General 
who is appointed by the President by and with the advice and consent of 
the Senate. Section 8G(c) provides that an Inspector General in a 
designated Federal entity is appointed by the head of the designated 
Federal entity according to the laws and regulations governing 
appointments within that specific designated Federal entity. Therefore, 
the treatment Inspectors General, other than those appointed by the 
President by and with the advice and consent of the Senate, receive 
under the regulations depends on their appointment and the entities in 
which they serve.

Use of Official Title, Noncareer Members of the Senior Executive 
Service, Use of the Phrase ``in Concert With'' in the Final 
Regulations, and Political Signs

    Two Federal agencies commented that the treatment of the use of 
official title in connection with political activities was not clear. 
In response, we have amended Sec. 734.302 to include a prohibition on 
the use of official title in connection with any partisan political 
activity. However, a form of address, such as ``Honorable'' may be used 
on letters, invitations, or when introducing a covered employee at 
partisan political functions.
    A Federal agency noted that although career Senior Executive 
Service (SES) employees are specifically mentioned in Sec. 734.401, 
noncareer SES employees are not mentioned in the regulations. Noncareer 
SES employees who do not work in the agencies or positions described in 
Sec. 734.401 are subject to the provisions of subparts B and C of part 
734. OPM has added examples about these noncareer SES employees to the 
provisions in subparts B and C to make it clear that they are subject 
to the provisions of these subparts. Noncareer SES employees who work 
in the agencies or positions described in Sec. 734.401 are subject to 
the more restrictive provisions of subpart D of part 734. Examples 
regarding noncareer SES employees also have been added to subpart D. 
Finally, all career SES employees also are subject to the provisions of 
subpart D.
    A Federal agency noted that the phrases ``in concert with'' and 
``in consultation or coordination with'' both appear in subpart D, and 
questioned whether the difference in language signifies any difference 
in meaning. Although these phrases were intended to express the same 
concept, the use of the two phrases is a source of confusion. 
Therefore, OPM has eliminated the phrase ``in consultation or 
coordination with'' and exclusively used ``in concert with'' in the 
final version of the regulations. OPM relies on the language in 
Blaylock v. United States Merit Systems Protection Board, 851 F.2d 1348 
(11th Cir. 1988) and Biller v. United States Merit Systems Protection 
Board, 863 F.2d 1079 (2d Cir. 1988), which refers to political activity 
done ``in concert with'' political parties, partisan groups, or 
candidates for public office in partisan elections. See Blaylock v. 
United States Merit Systems Protection Board, 851 F.2d at 1354; Biller 
v. United States Merit Systems Protection Board, 863 F.2d at 1090-1091.
    A Federal agency suggested that an example should be added to the 
regulations that clearly permits employees to place partisan political 
signs on their property. OPM has added such an example to Sec. 734.205. 
In addition, another example in Sec. 734.402 reflects that employees 
covered under subpart D also may display partisan political signs on 
their property.

Contributions to Political Action Committees Through Voluntary Salary 
Allotments

    The final regulations also contain new provisions which result from 
the issuance, on February 22, 1995, of an opinion by the Office of 
Legal Counsel (OLC) at the Department of Justice to the Office of 
Personnel Management. The OLC opinion addresses the question of whether 
the Reform Amendments prohibit Federal employees from making voluntary 
salary allotments to political action committees (PACs). The OLC 
initially noted that ``PACs'' are not defined as such under Federal 
law. OLC noted further that 26 U.S.C. 9002(9) defined the term 
``political committee'' and stated that, for the purposes of its 
opinion, ``PAC'' referred only to an organization that came within this

[[Page 35099]]

definition. OPM has incorporated into part 734 the definition of 
``PAC'' that OLC used in its opinion. OPM notes that the definition 
does not make a distinction between partisan and nonpartisan PACs 
because, according to the OLC opinion, donating to a PAC that meets 
this definition would be considered political activity within the 
meaning of the Reform Amendments.
    OLC noted in this regard that political activity includes actions 
sufficient to effect the making of a political contribution, such as 
taking steps to ensure that part of one's salary is contributed to a 
political campaign or a PAC. OLC noted that the OPM interim regulations 
on political activity confirmed its view that contributing to political 
candidates constitutes political activity within the meaning of the OPM 
interim regulations because it is directed toward the success or 
failure of a political party, candidate for partisan political office, 
or partisan political group. OPM has not revised this definition of 
political activity.
    Moreover, OLC noted that Congress intended that making 
contributions to PACs would be considered political activity under the 
terms of the Reform Amendments. It noted that Senator Glenn, the 
leading Senate sponsor of the Reform Amendments, referred specifically 
to PAC contributions in describing examples of the political activities 
that the Reform Amendments would prohibit on duty. See 139 Cong. Rec. 
S8929 (daily ed. July 20, 1993). In view of this, OMP believes that it 
is not necessary to further refine the OLC definition of PAC. OPM has 
added to Sec. 734.101, a definition of the term ``political action 
committee'' which tracks the definition of ``political committee'' in 
26 U.S.C. 9002(9).
    OLC opined that most Federal employees are not barred from using 
the salary allotment system to make contributions to PACs. Thus, 
Federal employees who are subject to subparts B through D of part 734 
are not prohibited from making a voluntary allotment to a PAC.
    OLC opined in addition that 5 U.S.C. 7324(a)(1)(4) prohibits 
Federal employees from taking steps sufficient to effect the making of 
a PAC contribution while they are on duty or in a Federal building. 
Thus, employees who are subject to subparts B through D of part 734 are 
prohibited from filling out direct-deposit forms for salary allotments 
to PACs while they are on duty or in a Federal building, and from 
personally delivering such forms to payroll employees who would process 
or administer these allotments. OPM has amended Secs. 734,208, 734.306, 
734.404, and 734.406 of its regulations to reflect the conclusions 
stated on the OLC opinion. OPM also has added to Sec. 734.101, a 
definition of the term ``political action committee'' which tracks the 
definition of ``political committee'' in 26 U.S.C. 9002(9).
    OLC also opined that Federal employees who are identified in 5 
U.S.C. 7324(b)(2) may not use the salary allotment system to contribute 
money to PACs. Section 7324(b)(2) applies to employees whose duties and 
responsibilities ``continue outside normal duty hours and while away 
from the normal duty post'' and who are either employees (1) ``paid 
from an appropriation for the Executive Office of the President'' or 
(2) ``appointed by the President, by and with the advice and consent of 
the Senate, whose position(s are) located within the United States in 
relations with foreign powers or in the nationwide administration of 
Federal laws.'' Such employees are covered under subpart E of OPM's 
regulations. OLC opined that in the use of the salary allotment system, 
the costs associated with the transfer of contributions to PACs would 
be borne by the Federal Government, and 5 U.S.C. 7324(b)(1) of the 
Reform Amendments prohibits these employees form engaging in political 
activity using ``money derived from the Treasury of the United 
States.'' OPM has added to subpart E a new provision that reflects this 
prohibition.
    Finally, the OLC opinion stressed that 5 U.S.C. 5525, the statutory 
provision governing allotment and assignment of pay, as well as the OPM 
allotment regulations at 5 CFR 550.311(b), provide that individual 
agency heads have the discretion to determine whether eligible 
employees of the agency may use the allotment system for particular 
purposes, such as making contributions to PACs.

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 these regulations would not have a significant 
economic impact on a substantial number of small entities because they 
would apply only to Federal agencies and employees.

List of Subjects in 5 CFR Part 734

    Political activities (Government employees).

U.S. Office of Personnel Management.
James B. King,
Director.

    Accordingly, the Office of Personnel Management interim rule adding 
5 CFR part 734, published at 59 FR 48765 on September 23, 1994, is 
adopted as a final rule with the following changes:

PART 734--POLITICAL ACTIVITIES OF FEDERAL EMPLOYEES

    1. The authority citation for part 734 continues to read as 
follows:

    Authority: 5 U.S.C. 1103, 1104, 7325; Reorganization Plan No. 2 
of 1978, 92 Stat. 3783, 3 CFR 1978 Comp. p. 323; and E.O. 12107, 3 
CFR 1978 Comp. p. 264.

    2. In Sec. 734.101 the definitions of accept, and receive, are 
revised, and the definitions of occasional, political action committee, 
recurrent, and 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 are added in alphabetical 
order, to read as follows:

Sec. 734.101  Definitions.

* * * * *
    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.
* * * * *
    Occasional means occurring infrequently, at irregular intervals, 
and according to no fixed or certain scheme; acting or serving for the 
occasion or only on particular occasions.
* * * * *
    Political Action Committee means any committee, association, or 
organization (whether or not incorporated) which accepts contributions 
or makes expenditures for the purpose of influencing, or attempting to 
influence, the nomination or election of one or more individuals to 
Federal, State, or local elective public office.
* * * * *
    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.
    Recurrent means occurring frequently, or periodically on a regular 
basis.
    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

[[Page 35100]]

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.
    3. In Sec. 734.102 paragraphs (a) introductory text and (b) are 
revised to read as follows:

Sec. 734.102  Jurisdiction.

    (a) The United States Office of Special Counsel has exclusive 
authority to investigate allegations of political activity prohibited 
by the Hatch Act Reform Amendments of 1993, as implemented by 5 CFR 
part 734, prosecute alleged violations before the United States Merit 
Systems Protection Board, and render advisory opinions concerning the 
applicability of 5 CFR part 734 to the political activity of Federal 
employees and employees of the District of Columbia government. (5 
U.S.C. 1212 and 1216. Advice concerning the Hatch Act Reform Amendments 
may be requested from the Office of Special Counsel:
* * * * *
    (b) The Merit Systems Protection Board has exclusive authority to 
determine whether a violation of the Hatch Act Reform Amendments of 
1993, as implemented by 5 CFR part 734, has occurred and to impose a 
minimum penalty of suspension for 30 days and a maximum penalty of 
removal for violation of the political activity restrictions regulated 
by this part. (5 U.S.C. 1204 and 7326).
* * * * *
    4. In Sec. 734.203, Example 2 is added to read as follows:

Sec. 734.203  Participation in nonpartisan activities.

* * * * *
    Example 2: An employee, individually or collectively with other 
employees, may petition or provide information to Congress as 
provided in 5 U.S.C. 7211.

    5. In Sec. 734.204, paragraph (f) is added, and Example 2 is 
revised, to read as follows:

Sec. 734.204  Participation in political organizations.

* * * * *
    (f) Serve as a delegate, alternate, or proxy to a political party 
convention.
* * * * *
    Example 2: A noncareer member of the Senior Executive Service, 
or other employee covered under this subpart, may serve as a vice-
president of a political action committee, as long as the duties of 
the office do not involve personal solicitation, acceptance, or 
receipt of political contributions. 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 in Sec. 734.101. 
Sections 734.208 and 734.303 describe in detail permitted and 
prohibited activities which are related to fundraising.
* * * * *
    6. In Sec. 734.205, Examples 8 and 9 are added to read as follows:

Sec. 734.205  Participation in political campaigns.

* * * * *
    Example 8: While not on duty, a Federal employee may distribute 
campaign leaflets by hand to homes or parked cars even though the 
leaflet may contain information concerning where to send 
contributions among other factual material about a partisan 
political candidate. However, should a member of the public stop the 
employee and request further information about contributions, the 
employee should refer that request to another campaign worker who is 
not a Federal employee.
    Example 9: An employee may place in his or her front yard a sign 
or banner supporting a partisan political candidate.

    7. Sec. 734.208, paragraphs (c) and (d) are added, Examples 12 and 
13 are added, and Example 4 is revised, to read as follows:

Sec. 734.208  Participation in fundraising.

* * * * *
    (c) Subject to the provisions of Sec. 734.306, an employee may make 
a financial contribution to a political action committee through a 
voluntary allotment made under Sec. 550.311(b) of this chapter, if the 
head of the employee's agency permits agency employees to make such 
allotments to political action committees.
    (d) An employee who is covered under this subpart and is a payroll 
official in an agency where employees are permitted to make allotments 
to political action committees may process the completed direct deposit 
forms for voluntary allotments which have been made to such committees 
under section 550.311(b) of this title.
* * * * *
    Example 4: When an employee of the Department of Transportation 
is not on duty, he or she may engage in activities which do not 
require personal solicitations of contributions, such as organizing 
mail or phone solicitations for political contributions. Activities 
such as stuffing envelopes with requests for political contributions 
also are permitted. However, he or she may not sign the solicitation 
letter unless the solicitation is for the contribution of 
uncompensated volunteer services of individuals who are not 
subordinate employees. An employee may not knowingly send to his or 
her subordinate employees a letter soliciting the contribution of 
their uncompensated services. However, he or she may sign a letter 
that solicits contributions of uncompensated volunteer services as 
part of a general mass mailing that might reach a subordinate 
employee, as long as the mass mailing is not specifically targeted 
to his or her subordinate employees.
* * * * *
    Example 12: An employee who desires to make a financial 
contribution to a political action committee through a voluntary 
allotment personally may obtain blank direct deposit forms from his 
or her payroll office. However, he or she may not complete the form 
while he or she is on duty, on Federal property, or in a Federally 
owned or leased vehicle. Moreover, he or she may not personally 
deliver his or her completed form, or the completed form of another 
employee, to the payroll office. However, the employee may mail his 
or her direct deposit form to his or her agency payroll office.
    Example 13: Employees who are permitted to solicit, accept, or 
receive political contributions under the circumstances described in 
Sec. 734.208(b)(4) may not solicit, accept, or receive such 
contributions either while they are on duty, or while they are on 
Federal premises, or both.

    8. Section 734.302 is revised to read as follows:

Sec. 734.302  Use of official authority; prohibition.

    (a) An employee may not use his or her official authority or 
influence for the purpose of interfering with or affecting the result 
of an election.
    (b) Activities prohibited by paragraph (a) of this section include, 
but are not limited to:
    (1) Using his or her official title while participating in 
political activity;
    (2) Using his or her authority to coerce any person to participate 
in political activity; and
    (3) Soliciting, accepting, or receiving uncompensated individual 
volunteer services from a subordinate for any political purpose.

    Example 1: An employee who signs a letter seeking uncompensated 
volunteer services from individuals may not identify himself or

[[Page 35101]]

herself by using his or her official title. However, the employee 
may use a general form of address, such as ``The Honorable.''
    Example 2: A noncareer member of the Senior Executive Service, 
or another employee covered by this subpart, may not ask his or her 
subordinate employees to provide uncompensated individual volunteer 
services for a political party, partisan political group, or 
candidate for partisan political office. Moreover, he or she may not 
accept or receive such services from a subordinate employee who 
offers to donate them.
    Example 3: An employee may not require any person to contribute 
to a partisan political campaign in order to win a Federal contract:

    9. In Sec. 734.306, Example 3 through 13 are revised and 14 through 
19 are added to read as follows:

734.306  Participation in political activities while on duty, in 
uniform, in any room or building occupied in the discharge of official 
duties, or using a Federal vehicle.

* * * * *
    Example 3: An employee who uses his or her privately owned 
vehicle on a recurrent basis for official business may place a 
partisan political bumper sticker on the vehicle, as long as he or 
she covers the bumper sticker while the vehicle is being used for 
official duties.
    Example 4: An employee who uses his or her privately owned 
vehicle on official business, must cover any partisan political 
bumper sticker while the vehicle is being used for official duties, 
if the vehicle is clearly identified as being on official business.
    Example 5: A noncareer member of the Senior Executive Service, 
or any other employee covered by this subpart, who uses his or her 
privately owned vehicle only on an occasional basis to drive to 
another Federal agency for a meeting, or to take a training course, 
is not required to cover a partisan political bumper sticker on his 
or her vehicle.
    Example 6: An employee may not place a partisan political bumper 
sticker on any Government owned or Government leased vehicle.
    Example 7: An employee may place a bumper sticker on his or her 
privately owned vehicle and park his or her vehicle in a parking lot 
of an agency or instrumentality of the United States Government or 
in a non-Federal facility for which the employee receives a subsidy 
from his or her employing agency or instrumentality.
    Example 8: When an agency or instrumentality of the United 
States Government leases offices in a commercial building and that 
building includes the headquarters of a candidate for partisan 
political office, an employee of that agency or instrumentality may 
do volunteer work, when he or she is not on duty, at the candidate's 
headquarters and in other areas of the building that have not been 
leased by the Government.
    Example 9: A Government agency or instrumentality leases all of 
the space in a commercial building; employees may not participate in 
political activity in the public areas of the leased building.
    Example 10: An employee of the National Aeronautics and Space 
Administration (NASA) may not engage in political activities while 
wearing a NASA flight patch, NASA twenty-year pin or anything with 
an official NASA insignia.
    Example 11: If a political event begins while an employee is on 
duty and continues into the time when he or she is not on duty, the 
employee must wait until he or she is not on duty to attend the 
event. Alternatively, an employee may request annual leave to attend 
the political event when it begins.
    Example 12: Officials of labor organizations who have been given 
official time to perform representational duties are on duty.
    Example 13: An employee may stuff envelopes for a mailing on 
behalf of a candidate for partisan political office while the 
employee is sitting in the park during his or her lunch period if he 
or she is not considered to be on duty during his or her lunch 
period.
    Example 14: An employee who works at home may engage in 
political activities at home when he or she is not in a pay status 
or representing the Government in an official capacity.
    Example 15: An employee who is appointed by the President by and 
with the advice and consent of the Senate (PAS) may attend a 
political event with an non-PAS employee whose official duties do 
not require accompanying the PAS as long as the non-PAS employee is 
not on duty.
    Example 16: A noncareer member of the Senior Executive Service, 
or any other employee covered by this subpart, may not wear partisan 
political buttons or display partisan political pictures, signs, 
stickers, or badges while he or she is on duty or at his or her 
place of work.
    Example 17: An employee may not engage in political activity in 
the cafeteria of a Federal building, even if the cafeteria is in 
space leased by a contractor.
    Example 18: An employee who contributes financially to a 
political action committee through a voluntary allotment made under 
Sec. 550.311(b) of this title may not complete the direct deposit 
forms while he or she is on duty, in a ``room or building'' defined 
in Sec. 734.101 or in a Federally owned or leased vehicle.
    Example 19: An employee who contributes financially to a 
political action committee through a voluntary allotment may not 
personally deliver his or her completed direct deposit form, or the 
completed direct deposit form of another employee, to the payroll 
employees who would process or administer such forms. However, the 
employee may mail his or her direct deposit form to his or her 
agency payroll office.

    10. In Sec. 734.307, Example 1 is revised to read as follows:

Sec. 734.307  Campaigning for a spouse or family member.

* * * * *
    Example 1: An employee who is married to a candidate for 
partisan political office may attend a fundraiser for his or her 
spouse, stand in the receiving line, sit at the head table, and urge 
others to vote for his or her spouse. However, the employee may not 
personally solicit, accept, or receive contributions of money or the 
paid or unpaid services of a business or corporation, or sell or 
collect money for tickets to the fundraiser.
* * * * *
    11. In Sec. 734.401, paragraphs (a)(14) through (a)(16) are revised 
and paragraph (a)(17) is added to read as follows:

Sec. 734.401  Coverage.

    (a) * * *
    (14) The Central Imagery Office;
    (15) Career Senior Executive Service positions described in 5 
U.S.C. 3132(a)(4);
    (16) Administrative Law Judge positions described in 5 U.S.C. 5372;
    (17) Contract Appeals Board Member positions described in 5 U.S.C. 
5372a.
* * * * *
    12. In Sec. 734.402, paragraph (b) is revised, Examples 4 and 5 are 
redesignated as Examples 5 and 6 respectively, newly redesignated 
Examples 5 and 6 are revised, and Example 4 is added, to read as 
follows:

Sec. 734.402  Expression of an employee's individual opinion.

* * * * *
    (b) Display a political picture, sign, sticker, badge, or button, 
as long as these items are displayed in accordance with the provisions 
of Sec. 734.406;
* * * * *
    Example 4: An employee may place in his or her yard a sign 
supporting a candidate for partisan political office.
    Example 5: An employee may stand outside of a political party 
convention with a homemade sign which states his or her individual 
opinion that one of the candidates for nomination is the best 
qualified candidate.
    Example 6: An employee, including a career SES employee, may 
wear a button with a partisan political theme when the employee is 
not on duty or at his or her place of work.

    13. Section 734.404 is revised to read as follows:

Sec. 734.404  Participation in political organizations.

    (a) Each employee covered under this subpart retains the right to:
    (1) Participate in the nonpartisan activities of a civic, 
community, social, labor, or professional organization, or of a similar 
organization;
    (2) Be a member of a political party or other partisan political 
group and participate in its activities to the extent consistent with 
other Federal law;
    (3) Attend a political convention, rally, fund-raising function, or 
other political gathering; and

[[Page 35102]]

    (4) Make a financial contribution to a political party, partisan 
political group, or to the campaign committee of a candidate for 
partisan political office.
    (b) Subject to the provisions in Sec. 734.406, an employee covered 
under this subpart may make a financial contribution to a political 
action committee through a voluntary allotment made under 
Sec. 550.311(b) of this chapter if the head of the employee's agency 
permits agency employees to make such allotments to political action 
committees.
    (c) An employee who is covered under this subpart and is a payroll 
official in an agency where employees are permitted to make allotments 
to political action committees may process the completed direct deposit 
forms for voluntary allotments which have been made to such committees 
under Sec. 550.311(b) of this chapter.

    Example 1: An employee, or a noncareer SES employee who is 
subject to subpart D of part 734, may attend a political convention 
or rally solely as a spectator. However, the employee and noncareer 
SES employee may not participate in demonstrations or parades which 
are sponsored by a political party, a partisan political group, or 
an individual who is running for nomination to be a candidate for 
partisan political office.
    Example 2: An employee may attend a political party's annual 
barbecue, but he or she may not organize, distribute invitations to, 
or sell tickets to the barbecue.
    Example 3: An employee who desires to contribute to a political 
action committee through an allotment personally may obtain blank 
direct deposit forms from his or her payroll office. The employee 
may not complete the direct deposit form while he or she is on duty, 
on Federal property, or in a Federally owned or leased vehicle. The 
employee also may not personally deliver his or her completed direct 
deposit form, or the completed direct deposit form of another 
employee, to his or her payroll office. However, the employee may 
mail the completed form to his or her agency payroll office.

    14. In Sec. 734.406, Examples 1 through 8 are added to read as 
follows:

Sec. 734.406  Participation in political activities while on duty, in 
uniform, in any room or building occupied in the discharge of official 
duties, or using a Federal vehicle; prohibition.

* * * * *
    Example 1: An employee who uses his or her privately owned 
vehicle on a recurrent basis for official business may place a 
bumper sticker on the vehicle, as long as he or she covers the 
bumper sticker while the vehicle is being used for official duties.
    Example 2: An employee who uses his or her privately owned 
vehicle on official business, must cover any partisan political 
bumper sticker while the vehicle is being used for official duties, 
if the vehicle is clearly identified as being on official business.
    Example 3: An employee or career SES employee who uses his or 
her privately owned vehicle only on an occasional basis to drive to 
another Federal agency for a meeting, or to take a training course, 
if not required to cover a partisan political bumper sticker on his 
or her vehicle.
    Example 4: An employee may not place a partisan political bumper 
sticker on any Government owned or Government leased vehicle.
    Example 5: An employee may place a bumper sticker on his or her 
privately owned vehicle and park the vehicle in a parking lot of an 
agency or instrumentality of the United States Government or in a 
non-Federal facility for which the employee receives a subsidy from 
his or her employing agency or instrumentality.
    Example 6: An employee, or noncareer SES employee who is subject 
to subpart D of this part 734, may not wear partisan political 
buttons or display partisan political pictures, signs, stickers, or 
badges while he or she is on duty or at his or her place of work.
    Example 7: An employee who contributes financially to a 
political action committee through a voluntary allotment made under 
Sec. 550.311(b) of this title may not complete the direct deposit 
forms while he or she is on duty, in a ``room or building'' defined 
in Sec. 734.101, or in a Federally owned or leased vehicle.
    Example 8: An employee who contributes financially to a 
political action committee may not personally deliver his or her 
completed direct deposit form, or the completed direct deposit form 
of another employee, to the payroll employees who would process or 
administer such forms. However, the employee may mail his or her 
direct deposit form to his or her agency payroll office.

    15. Section 734.408 is revised to read as follows:

Sec. 734.408  Participation in political management and political 
campaigning; prohibitions.

    An employee covered under this subpart may not take an active part 
in political management or in a political campaign, except as permitted 
by subpart D of this part.
    16. In Sec. 734.412, paragraphs (a), (b), and (c) are revised to 
read as follows:

Sec. 734.412  Participation in elections; prohibitions.

    (a) Be a candidate for partisan political office;
    (b) Act as recorder, watcher, challenger, or similar officer at 
polling places in concert with a political party, partisan political 
group, or a candidate for partisan political office;
    (c) Drive voters to polling places in concert with a political 
party, partisan political group, or a candidate for partisan political 
office;
    17. In Sec. 734.502 paragraph (d) is revised to read as follows:

Sec. 734.502  Participation in political activity while on duty, in 
uniform, in any room or building occupied in the discharge of official 
duties, or using a Federal vehicle.

* * * * *
    (d) An employee, to whom subpart E of this part does not apply, who 
is not on duty may participate in political activities in rooms of the 
White House or 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.
* * * * *
    18. Section 734.504 is added to read as follows:
* * * * *

Sec. 734.504  Contributions to political action committees through 
voluntary payroll allotments prohibited.

    An employee described in Sec. 734.502(a) may not financially 
contribute to a political action committee through a voluntary 
allotment made under Sec. 550.311(b) of this title.

[FR Doc. 96-17006 Filed 7-3-96; 8:45 am]
BILLING CODE 6325-01-M