January 27, 1977

Hatch Act (5 U.S.C. § 7324)— Membership of

White House Staff Member on Democratic

National Committee

You have orally asked for our views as to whether a White House Staff 

member may lawfully continue to be a member of the Democratic National 

Committee. Insofar as we have been able to ascertain, our office has not 

previously been asked to examine such a question It is our conclusion that such 

membership would not violate any statutory restriction but that a question exists 

under applicable Standards of Conduct.

The only relevant statutory restriction of which we are aware is the Hatch 

Act. It provides in pertinent part:

(a) An employee in an Executive agency or an individual employed 

by the government of the District of Columbia 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. [5 U.S.C. § 7324(a).]

Under Civil Service Commission regulations, membership on the national 

committee of a political party is prohibited by subsection (2) of this provision. 

See 5 CFR 733.122(b)(1). However, the Hatch Act contains an exception 

providing that subsection (a)(2), quoted above, does not apply, inter alia, to 

“ an employee paid from the appropriation for the office of the President.” 5 

U.S.C. §7324(d)( 1).1 Anyone whose salary is paid from funds appropriated 

for salaries and expenses of the White House Office under the Executive Office 

Appropriations Act of 1977, 90 Stat. 966, is covered by this exception, and his 

membership on the Democratic National Committee would therefore not be in 

violation of the Hatch Act.

78-73 MEMORANDUM OPINION FOR THE DEPUTY

COUNSEL TO THE PRESIDENT

'T he exception does not extend to the prohibition in subsection (a)( I) against the use of official 

authority or influence for the purpose of interfering with or affecting the result of an election.

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In addition to the statutory restriction, the propriety of membership on the 

Democratic National Committee should be considered in light of the Standards 

of Conduct applicable to agencies in the Executive Office of the President. See

3 CFR, Chapter I, Part 100.2 “ Agency” is defined to include the White House 

Office. 3 CFR 100.735-2(a). The Standards of Conduct were issued in 

compliance with Executive Order 11222, 3 CFR 306 (1965), and Civil Service 

Commission regulations implementing that order. See 5 CFR, Part 735.

Outside activities of employees of the Executive Office of the President are 

specifically governed by 3 CFR 100.735-15. Subsection (a) of this provision 

states that an employee may not engage in any outside activity “ not compatible 

with the full and proper discharge of the duties and responsibilities of his 

Government employment.” However 3 CFR 100.735-15(d)(2) provides that 

nothing in section 100.735-15 or 100.735-14 (dealing with the acceptance of 

gifts, gratuities, and entertainment) precludes an employee from “ [participation in the activities of national or State political parties not proscribed by 

law.” The reference to political activities proscribed by laws is to the Hatch 

Act, discussed above. See 3 CFR 100.735-22(o). Because the Hatch Act does 

not prohibit a person employed in the White House from being a member of the 

Democratic National Committee, such membership is not prohibited by the 

regulations governing outside activities and receipt of gratuities either.

The exception in the regulations just discussed, permitting certain political 

activities, does not apply to other provisions of the Executive Office’s 

Standards of Conduct. One other section of the Standards of Conduct that 

should be considered is 3 CFR 100.735.4(c), which provides:

An employee shall avoid any action, whether or not specifically

prohibited by this subpart, which might result in, or create the

appearance of:

(1) Using public office for private gain;

(2) Giving preferential treatment to any person;

(3) Impeding Government efficiency or economy;

(4) Losing complete independence or impartiality;

(5) Making a Government decision outside official channels; or

(6) Affecting adversely the confidence of the public in the integrity 

of the Government.

These standards are necessarily general and are difficult to apply with precision 

in any particular case. However, it may be suggested that membership of a 

person employed in the White House on the national committee of a political 

party could give rise to problems of appearances under a number of these 

subsections.

The public no doubt expects persons on the President’s staff to be political to 

the extent of being loyal to the President’s policies and partisan endeavors. But

2The Standards of Conduct were previously codified in Chapter V of 3 CFR. See 40 F.R. 24993 

(1975).

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it can be supposed that the public at the same time expects a certain 

independence of the President’s top advisers that could be, or at least appear to 

be, compromised by a close official connection to partisan political activities. 

In the language of the regulation just quoted, membership on the national 

committee of a political party might perhaps engender the appearance of 

“ giving preferential treatment” to certain groups or “ losing complete independence or impartiality” in one’s official duties and thereby “ affecting 

adversely the confidence of the public in the integrity of the Government.” 

This appearance might result from the possibility that the individual would be 

in a position to influence governmental decisions unduly so as to favor the 

policy or institutional interests of the Democratic Party as opposed to the 

Republican Party or other groups3 or that he would favor the Democratic 

Party’s interests rather than the President’s if a difference of opinion developed 

between the two. Moreover, membership of a White House staff member on 

the committee could conceivably give rise to the impression that important 

governmental decisions were being made by the committee rather than the 

White House, and therefore that they were being made “ outside official 

channels.”

The decision on a question of appearances such as this necessarily depends to 

a certain degree on the public’s perception of an employee’s conduct, and for 

this reason it cannot be said with certainty that problems of appearances will 

arise under the Standards of Conduct. Nevertheless, we believe that these 

potential problems of appearances should at least be considered. However, the 

authoritative construction of the regulations we have discussed in the present 

context is ultimately a matter for the appointing official.

L e o n U l m a n

Deputy Assistant General Counsel

Office o f Legal Counsel

3For exam ple, if (he individual were employed in (he W hite House Personnel Office, there could 

be an appearance that the Democratic National Com mittee would have more influence in selecting 

persons to fill important Governm ent posts than might otherwise be true. Also, if the individual 

took an active interest in certain G overnm ent grants or contracts, there could be an appearance that 

he would favor applicants with ties to the Democratic Party or its National Committee.

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