This report provides information on the permissibility, under federal law, of a federal employee in an agency or department of the executive branch of government being a candidate for elective office. Under the provisions of federal law commonly known as the "Hatch Act," civilian employees in the executive branch of the federal government (other than the President and Vice President) have, since 1939, been prohibited from running as candidates in partisan elections. Amended in 1993, the Hatch Act now permits federal employees to engage in a wide range of voluntary, partisan political activities on their own, off-duty time, but still prohibits employees from being candidates "for election to a partisan political office." Such employees, it may be noted, may run for office in a "nonpartisan" election (that is, an election in which none of the candidates represents a political party); may run as an "independent" in partisan elections in certain specified, exempt localities in which a number of federal employees reside; and may generally be candidates for and hold positions in political parties and their affiliated organizations. The provisions of the "Hatch Act" apply (in one degree or another) to all federal employees, other than the President and Vice President, in the executive branch of the federal government. Although the Hatch Act was significantly amended in 1993 to allow the vast majority of federal employees to engage in voluntary, off-the-job partisan political activities, certain employees in the executive branch, including those in law enforcement or national security agencies or offices, remain under much more restrictive provisions regarding political activities, even on their own free time. These "further restricted" employees are prohibited from taking an active part in political campaigns or political management in a similar manner as under the old Hatch Act. Even for the majority of federal employees in the executive branch—who are under the less restrictive rules on off-duty political activities adopted in 1993—there are still certain prohibitions on political activities applicable to them. In addition to prohibitions regarding the solicitation of campaign contributions from the public, the use of one's official authority to influence an election, on-the-job politics, and the solicitation of political participation from anyone doing or seeking business with one's agency, federal employees continue to be prohibited by the Hatch Act from running as candidates in a partisan election. The statutory prohibition on candidacy states expressly as follows in Title 5 of the United States Code: § 7323. Political activity authorized; prohibitions (a) Subject to the provisions of subsection (b), an employee may take an active part in political management or in political campaigns, except an employee may not— (3) run for the nomination or as a candidate for election to a partisan political office.... A "partisan political office" is expressly defined in the law to mean "any office for which any candidate is nominated or elected as representing" a political party whose candidates received votes for presidential elector in the preceding presidential election. The restrictions on being a candidate for office, therefore, bar a federal executive branch employee from running for any elective public office—including a federal, state, local, or county office—which is filled in an election where any of the candidates in the election runs as a Democrat, Republican, or as representing any political party whose presidential electors received votes in the last presidential election. There may be definitional and factual questions about when one becomes a "candidate" for purposes of the Hatch Act prohibition. "Candidacy" under the Hatch Act is not merely when one formally "announces," "declares," or files for office, but could include preliminary activities and conduct leading up to a formal declaration of candidacy, including activities commonly referred to as "testing the waters." In an Advisory Opinion, the United States Office of Special Counsel (OSC)—the federal agency tasked with Hatch Act interpretation and enforcement—explained that the prohibition in the Hatch Act against candidacy "extends not merely to the formal announcement of candidacy but also the preliminaries leading to such announcement and to canvassing or soliciting support or doing or permitting to be done any act in furtherance of candidacy." The OSC described the types of activities which would be prohibited by a federal employee as constituting "candidacy" by such employee: Because the Hatch Act has been interpreted to prohibit preliminary activities regarding candidacy, any action that can reasonably be construed as evidence that an individual is seeking support for or undertaking an initial "campaign" to secure a nomination or election to office would be viewed as candidacy for purposes of the Hatch Act. The following are examples of preliminary activities directed toward candidacy that would violate the Hatch Act: taking the action necessary under the law of a state to qualify for nomination or election; soliciting or receiving contributions or making expenditures; canvassing for voter support; conducting polls for name recognition; meeting with individuals to plan the logistics and strategy of a campaign; circulating nominating petitions, or; giving consent to or acquiescing in such activities by others on the employee's behalf. Activities which are preliminary to any filing for or declaration of candidacy may be prohibited under the Hatch Act when they can "reasonably be construed as evidence that the individual is seeking support for or undertaking an initial 'campaign' to secure nomination or election to office.... " For example, the OSC found Hatch Act violations when a covered employee submitted his "qualifications" to a party screening committee in contemplation of candidacy, even before filing or declaring as a candidate. Although candidacy in an election for a "partisan" office is expressly prohibited for executive branch employees, the "Hatch Act" is interpreted to allow a federal employee to run as a candidate in "a nonpartisan election." The regulations make it clear, however, that the election itself must be "nonpartisan"—that is, an election where " none of the candidates is to be nominated or elected as representing" a national political party. The statute would, therefore, continue to generally bar even an "independent" candidacy by a federal employee in an otherwise "partisan" election. With respect to state and local elections, the laws of the state or locality will often designate that the election is to be "nonpartisan," such that candidates are not to run as representing political parties, and such laws will provide a presumption that the election is nonpartisan. Merely because the names of candidates are listed on an election ballot without party designation does not necessarily indicate that the election is "nonpartisan," however, as such candidates could still be nominated by, or otherwise "represent" political parties, or could seek or accept party endorsements or resources making the election a "partisan" election. One of the problems that could arise for a federal employee who legitimately and in good faith runs for office in an election that has been designated "nonpartisan" is the fact that the other candidate or candidates may seek, accept, or advertise the endorsement of a political party. In the view of the Office of Special Counsel this could "indicate that the election is a partisan one," and bring into question the propriety of an employee's candidacy. The Office of Special Counsel has explained: [P]lease be advised that usually a nonpartisan election is so designated by state or local laws. Such state and local laws, however, create only a rebuttable presumption that an election is nonpartisan. See Special Counsel v. Yoho, 15 M.S.P.R. 409, 413 (1983), overruled on other grounds, Special Counsel v. Purnell, 37 M.S.P.R. 184 (1988). Evidence showing that partisan politics actually enter the campaigns of the candidates may rebut this presumption. See McEntee v. M.S.P.B., 404 F.3d 1320 (Fed. Cir. 2005); In re Broering, 1 P.A.R. 778, 779 (1955). For example, if a candidate solicits or advertises the endorsement of a political party or uses a political party's resources to further his or her campaign, these actions may rebut the presumption that an election is nonpartisan, and thus, indicate that the election is a partisan one. As such, if any candidate for Municipal Judge becomes associated with a political party, you should immediately contact our office for further guidance. In addition to the general exceptions for candidacies in nonpartisan elections, the Hatch Act also provides that regulations issued by the Office of Personnel Management may establish that employees in certain communities in and around the Washington, DC, metropolitan area, or in other communities where the majority of voters residing there are federal employees, may participate in certain local political activities which might otherwise be prohibited. These regulations allow federal employees in such exempted localities to run as independent candidates even in partisan elections in that locality or municipality. The Office of Personnel Management has issued regulations specifying those communities in which federal employees may be independent candidates in partisan elections. Such employees may also solicit, receive, and accept political contributions in connection with that local or municipal election, but would still be prohibited from soliciting contributions from subordinates or engaging in political activities while on duty or in federal workspace. The Office of Personnel Management regulations note that a candidacy for or service in the particular office in question will be permitted only if such candidacy and service will not "result in neglect of, or interference with, the performance of the duties of the employee or create a conflict, or an apparent conflict, of interest." Most federal employees in the executive branch are allowed to hold and campaign for positions and offices in political parties and other partisan political organizations.