Applicability of the Hatch Act to the Chairman of the Native

Hawaiians Study Commission

The Native Hawaiians Study Commission is an “ Executive agency” whose employees are covered by 

the Hatch A ct, even though its functions are by statute confined to advising Congress. The parttime Chairm an of the Commission is covered by the Hatch Act on the days she is paid to perform 

government services,

June 3, 1982

MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY 

GENERAL, LAND AND NATURAL RESOURCES DIVISION

This responds to your request regarding the applicability of the Hatch Act to 

the Chairman of the Native Hawaiians Study Commission (Commission). Based 

on the memorandum accompanying your request, and on subsequent conversations with attorneys in the Lands Division, it is our understanding that the 

Chairman intends to announce her candidacy for Lieutenant Governor of Hawaii. 

She currently serves as a delegate to the State Legislature of Hawaii.

The Commission was established in 1980 pursuant to the Native Hawaiians 

Study Commission Act (NHSCA). Pub. L. No. 96-565, Title III, 94 Stat. 3321, 

3324-3327 (1980), 42 U.S.C. § 2991a note (Supp. V 1981). The NHSCA directs 

the Commission to “conduct a study of the culture, needs, and concerns of Native 

Hawaiians.” § 303(a). The Commission is to publish “ a draft report of the 

findings of the Study,” to distribute the draft to “appropriate” federal and state 

agencies, native Hawaiian organizations, and the interested public, and to solicit 

their written comments. § 303(c). The Commission is also directed to issue a 

“ final report of the results of this Study” and to send copies to the President and 

to two congressional committees.1 § 303(d). Finally the NHSCA directs the 

Commission to “ make recommendations to the Congress based on its findings 

and conclusions [from the Study].” § 303(e). See generally Memorandum Opinion for the Chairman, Native Hawaiians Study Commission, from Theodore B. 

Olson, Assistant Attorney General, Office of Legal Counsel (Jan. 4, 1982).*

1 The two committees are the Committee on Energy and Natural Resources of the Senate and the Committee on 

Interior and Insular Affairs of the House of Representatives

* N o t e - The January 4, 1982, opinion (“Applicability of the Federal Advisory Committee Act and the Government in the Sunshine Act to the Native Hawaiians Study Commission” ) appears in this volume at p. 39, supra. Ed.

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The members of the Commission were appointed by the President, who 

designated the Chairman and Vice Chairman. These appointments were not 

subject to the advice and consent of the Senate. § 302(b), (c). Commission 

members who are not otherwise fulltime officers or employees of the United 

States receive $100 for each day they are engaged in performing Commission 

duties. § 302(g). All Commission members also receive travel expenses. 

§ 302(h).

Based on our review of the materials forwarded to us and the NHSCA, we 

conclude that the Commission Chairman is subject to the Hatch Act on the days 

she is compensated for Commission business. We note, however, that the Special 

Counsel, Office of Personnel Management, is charged with primary jurisdiction 

over the Hatch Act, and that more particular advice regarding application of the 

Hatch Act to Commission members may be obtained from that Office. We have 

also addressed briefly certain other statutory or regulatory provisions that may be 

applicable.

I. The Hatch Act

The Hatch Act, 5 U.S.C. § 7324 (1976), provides in relevant part:

(a) An employee in an Executive agency . . . may not—

(1) use his official authority or influence for the purpose of 

interfering with or affecting the result of an election; or

(2) take an active part in political management or in political 

campaigns.

Two initial questions are raised by this provision: (1) Is the Commission an 

“ Executive agency” within the meaning of the Act; and (2) Is the Chairman a 

covered employee?

A. Is the Commission an "Executive Agency” ?

An “Executive agency” is defined in 5 U.S.C. § 105 (1976) as “an Executive 

department, a Government Corporation, or an independent establishment.” The 

Commission is neither an executive department, see 5 U.S.C. § 101 (1976), nor 

a government corporation, see 5 U.S.C. § 103 (1976). However, an “ independent establishment” is essentially any other organization within the Executive 

Branch. See 5 U.S.C. § 104 (1976).2 Thus, if the Commission is an entity within 

the Executive Branch, it is an “ Executive agency” within the meaning of the 

Hatch Act.

2 5 U S C. § 104 provides

For the purposes of this title, “ independent establishment” means—

(1) an establishment m the executive branch (other than the United States Postal Service or the 

Postal Rate Commission) which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment, and

(2) the General Accounting Office.

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Whether the Commission falls within the Executive Branch or the Legislative 

Branch is a difficult question because of the Commission’s hybrid nature. Several 

factors point to its being non-executive. First, the Commission was established to 

advise Congress rather than the President or executive agencies. See Gannett

News Service, Inc. v. Native Hawaiians Study Commission, Civ. No. 82-0163, 

slip op. at 5 (D.D.C. June 1, 1982) (holding that the Commission is not advisory 

to the Executive and is therefore not subject to the Federal Advisory Committee 

Act); January 4, 1982 Memorandum Opinion, supra. Second, the Commission 

was initially funded from the contingent fund of the Senate, § 307(a), thus 

indicating its close ties with the Legislative Branch.

Our prior conclusion that the Commission was not “established” to advise the 

President or federal agencies pointed out that the Commission would nonetheless 

be subject to the Federal Advisory Committee Act (FACA) were it so utilized by 

the President or federal agencies. See January 4, 1982 Memorandum Opinion, 

supra. In other words, the Commission could become advisory to the Executive 

by its actions or the ways in which it was used in the Executive Branch. This 

possibility serves to point out that there is not always a bright line dividing the 

Legislative and Executive Branches, and that an advisory function to one branch 

does not preclude a similar function to another. Thus, while the fact that the 

Commission was established as advisory to Congress deserves special weight in 

assessing whether the Commission falls within the Executive Branch, this factor 

alone need not be conclusive.

Other factors, in fact, suggest that the Commission is in the Executive Branch. 

First, the members of the Commission are appointed solely by the President, 

§ 302(b), who also designates the Chairman and Vice Chairman, § 302(c), and 

who is responsible for calling its first meeting, § 302(e). Several Commission 

members are fulltime employees in the Executive Branch. Second, although the 

Commission is advisory only to Congress because it makes recommendations 

only to Congress, § 303(e), its final report and written comments are submitted 

to the President as well as to Senate and House committees, § 303(d). Third, the 

Commission is now funded from appropriations for the Executive Branch out of 

the Unanticipated Needs Fund, which is an item in the appropriations for the 

Executive Office of the President. Executive Office Appropriations Act of 1980, 

Pub. L. No. 96-74, 93 Stat. 565 (1979). Finally, the Commission’s office space is 

located in an executive department, the Department of the Interior, from which it 

receives staff support. These factors tend to support a conclusion that the 

Commission is established within the Executive Branch.

Not all committees in the Executive Branch are advisory in nature, as the 

Office of Legal Counsel has previously recognized. See Memorandum Opinion 

for the Acting Director, Executive Office of United States Attorneys, 5 Op.

O.L.C. 283 (1981) (possible to construct committee that is not advisory but is 

rather intended to exchange information and data). Furthermore, a commission 

may have dual responsibilities— as in this case, advisory to Congress, factfinding and reporting to the President—without necessarily losing its character as 

an executive entity.

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Oh the one hand, therefore, we are faced with a body established to advise 

Congress, whose role in conducting a study, publishing a report, and making 

recommendations to Congress might be viewed as merely in aid of Congress’ 

legislative functions. See Buckley v. Valeo, 424 U.S. 1, 139 (1976) (per curiam). 

On the other hand, however, the Commission’s members are appointed solely by 

the President and include executive officers; it is funded out of and physically 

located in the Executive Branch; and its responsibilities include fact-finding and 

reporting to the President. Furthermore, the making of recommendations to 

Congress is not a purely legislative function, but falls squarely within the duties 

and powers of the Executive. See U.S. Const. Art. 2, cl. 3. Thus, even the 

mandate of the Commission to make recommendations to Congress need not be 

viewed as inconsistent with executive functions. Although we recognize that this 

is a difficult question, we conclude that the circumstances viewed as a whole 

point to the Commission as an entity within the Executive Branch.

B. Are Commission Members Covered Employees?

The Hatch Act applies generally to employees in executive agencies, with 

certain specified exceptions. See 5 U.S.C. § 7324(c) & (d); Federal Personnel 

Manual at 733-5 (“In the absence of specific statutory exemption, the basic 

political activity restrictions apply to any person employed in the executive 

branch of the Federal Government. . . .” ). The Chairman is clearly not a fulltime 

employee of an executive agency. Nevertheless, the Hatch Act applies to employees who work on an irregular or occasional basis on those days for which 

they are paid to perform government services. See 5 C.F.R. § 733.123(b)(4) 

(1981). As explained in the Federal Personnel Manual, “ [p]ersons who are 

employed on an irregular or occasional basis, e .g ., experts and consultants on a 

per diem basis, . . . are subject to the political activity restrictions of the law 

while in an active duty status only and for the entire 24 hours of any day of actual 

employment.” Federal Personnel Manual at 733-5. Employees in both the 

competitive service and the excepted service are subject to the restrictions of the 

Hatch Act. See 5 C.F.R. § 733.201.

There are several exceptions to Hatch Act coverage. The prohibition against 

taking an active part in political management or political campaigns does not 

apply to “an employee paid from the appropriation for the office of the President.” 5 U.S.C. § 7324(d)(1). It has been suggested that this exemption would 

apply to Commission members for so long as the Commission is funded from the 

Unanticipated Needs Fund in the Executive Office of the President.

The item “ Office of the President,” as used in appropriation statutes when the 

Hatch Act was enacted, has since been replaced by the item “The White House 

Office” in appropriations for the Executive Office of the President. The Office of 

Legal Counsel has previously interpreted the “Office of the President” exemption to apply only to the White House Office. See 1 Op. O.L.C. 54, 56 (1977). 

(Application of the Hatch Act to the Vice President’s staff: “ the exemption to the 

Hatch Act in 5 U.S.C. § 7324(d)(1) was intended to apply only to persons paid

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from the item for the ‘White House Office,’” and not to those paid from other 

items in appropriations for the Executive Office of the President.) This distinction 

reflects the congressional intent to provide an exemption for that “ inner circle of 

personal advisers to the President” whose government jobs are essentially “as 

adjuncts to the President in his role as a political officer.” Id. at 55-56.

The current appropriation for the Executive Office of the President has 12 

separate items, including items for the White House Office, the Unanticipated 

Needs Fund, the Office of Management and Budget, the Office of Policy 

Development, etc. The Unanticipated Needs Fund is independent of the White 

House Office item. Consistent with prior OLC precedent, therefore, we conclude 

that funding from the Unanticipated Needs Fund is not sufficient to satisfy the 

Hatch Act exemption for those paid from appropriations for the Office of the 

President.3 See also Memorandum for the Clemency Board from Antonin Scalia, 

Assistant Attorney General, Office of Legal Counsel (Sept. 24, 1974) (Unanticipated Personnel Needs Fund of the President does not fall within exemption).

Finally, the Hatch Act also does not apply to “the head or the assistant head of 

an Executive department or military department.” 5 U.S.C. § 7324(d)(2). This 

exception is inapplicable to the Chairman, however, because the Commission is 

not an “ Executive department.” See 5 U.S.C. § 101. Nor is the Chairman 

exempt under § 7324(d)(3), which applies to persons appointed by the President, 

“ by and with the advice and consent of the Senate.” Thus, none of the arguably 

relevant statutory exceptions applies to the Chairman of the Commission.4

We therefore conclude that the Chairman of the Commission is subject to the 

provisions of the Hatch Act, as set forth in more detail at 5 C.F.R. § 733.122, on 

the days for which she is paid to perform government services. According to 

informal advice from the legal staff of the Office of Personnel Management 

(OPM), these prohibitions go to the Chairman directly, but would not prohibit 

billboard or other advertisements on her behalf on those days. We suggest, 

however, that the Chairman obtain further advice as to particular prohibitions 

from the Office of the Special Counsel at OPM, which has primary jurisdiction 

over Hatch Act matters.

II. Other Statutory and Regulatory Provisions

There are several other statutory and regulatory provisions of which the 

Chairman should be aware. Pursuant to 18 U.S.C. § 602, for example, it is a 

crime for “ a person receiving any salary or compensation for services from 

money derived from the Treasury of the United States to knowingly solicit any

3 It might be argued that when the President uses Unanticipated Needs Rinds for the White House Office itself, the 

Hatch Act exemption should apply nonetheless We need not address this possibility, however, because it is clear in 

this case that Commission members are not located in the White House Office as advisers to the President.

4 “ ftrsons who are retained from time to time to perform special services on a fee basis and who take no Oath of 

Office” also enjoy exemption from the Hatch Act See Federal Personnel Manual at 733-6. We have assumed that 

the Commission members take an oath of office, but in any event we do not believe this exception applies to a 

Commission Chairman appointed for a term. It is intended instead to apply to those receiving a fee, such as 

attorneys

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contribution within the meaning of section 301(8) of the Federal Election 

Campaign Act of 1971 from any other such officer, employee, or person.” 18 

U.S.C. § 602(4) (Supp. V 1981).5 Additionally, no officer or employee of the 

United States, or a person receiving any salary or compensation from the United 

States Treasury may make such a contribution to his or her employer or employing authority. 18 U.S.C. § 603 (Supp. V 1981). Presumably, this latter provision 

would prohibit Commission staff from making any contribution to the Chairman’s campaign efforts.6

Finally, the Chairman should also be cognizant of the standards of conduct 

embodied in 3 C.F.R. § 100.735 for the Executive Office of the President, which 

will presumably apply for so long as Commission expenses are paid from 

Executive Office appropriations,7 and those embodied in 5 C.F.R. § 735, which 

represent the minimum standards of conduct applicable to federal employees. Of 

particular concern during a campaign for state office is the following prohibition:

(1) An employee shall avoid any action, whether or not specifically prohibited . . ., which might result in, or create the 

appearance of:

(1) Using public office for private gain. . . .

3 C.F.R. § 100.735-4(c)(l); accord 5 C.F.R. § 735.201a(a). Copies of the 

standards of conduct embodied in Titles 3 and 5 of the Code of Federal Regulations are attached.

T h e o d o r e B . O l s o n

Assistant Attorney General

Office of Legal Counsel

5 “ Contribution” is defined in detail at 2 U.S C § 431(e).

6 For the purposes of the criminal conflict of interest laws, 18 U S C §§ 202-209, the Chairman is a “ special 

Government employee,” see I8U .S.C § 202, to whom some, but not all. of those provisions apply. See, e g.. 18 

U.S.C. § 208 (prohibiting personal and substantial participation in a particular matter in which employee or his or 

her family or organization has a financial interest)

7 The standards of conduct found at 3 C F R § 100 735 apply not only to the White House Office, but also to 

other entities in the Executive Office of the President, including “ any committee, board, commission, or similar 

group established in the Executive Office of the President 3 C F R § 100 735-2(a).

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