Investigators at the Office of Special Counsel returning to their jobs earlier this month would likely have been greeted with multiple Hatch Act complaints after a wave of alleged partisan political messaging by federal agencies during the shutdown.

Throughout the 43-day shutdown, multiple agencies posted messages on their websites blaming the shutdown on the “radical left,” “Democrats” and other politically tinged phrases.

Those actions immediately drew multiple Hatch Act complaints. The 1939 law restricts political activities by federal employees and is intended to ensure the nonpartisan administration of government programs.

The Education Department also changed furloughed employees’ out-of-office email replies to blame the shutdown on “Democrat senators.” A federal judge earlier this month found that the agency had violated employees’ First Amendment rights. Education was forced to change the out-of-office reply shortly before the shutdown ended.

“In this compressed timeframe, we haven’t seen this level of potential Hatch Act violations with regards to just changing emails, publishing these notices on the government websites and engaging in this partisan messaging,” Michael Fallings, managing partner at law firm Tully Rinckey, told Federal News Network.

The use of federal agency websites for such messaging was also a novel development in the long-running evolution of the Hatch Act.

Kedric Payne, who helped represent Education Department employees as vice president, general counsel and senior director of ethics at the Campaign Legal Center, said the shutdown messaging “could have been a test run of what may happen during the election year.”

“You could imagine a situation where, during the election year, there may be similar banners, similar email statements and other communications coming from the agencies that are partisan,” Payne told Federal News Network. “If there are no consequences for what happened during the shutdown, there’s not a real threat for the agencies to limit themselves on violating the Hatch Act or First Amendment rights.”

Office of Special Counsel role

OSC is responsible for investigating Hatch Act complaints. But most OSC staff were furloughed through the shutdown. Out of the agency’s 122 employees, just 17 were kept onboard, according to the OSC shutdown plan. Those excepted staff were primarily focused on handling whistleblower disclosures “involving a substantial and serious risk to public health or safety or those requiring emergency action to protect property.”

Multiple nonprofit organizations publicized their Hatch Act complaints. The total number of Hatch Act complaints received by OSC isn’t public, and OSC didn’t respond to a request for comment.

But given OSC’s relatively small staff, the backlog of work due to the furlough, and the large number of known complaints, Fallings expects the Hatch Act cases will likely face delays. OSC typically takes 120 days to conduct preliminary reviews, but there isn’t a statutory deadline for completing Hatch Act investigations.

“I think what OSC would do is try to figure out which complaints may have the most proof of a violation, and pursue those,” Fallings said.

In his opinion siding with Education Department employees and their union, District Judge Christopher Cooper referenced the Hatch Act and pointed to the executive branch’s “multifront campaign to assign blame for the government shutdown.”

“It began by plastering politically-charged language on official public websites,” Cooper wrote. “Apparently, that wasn’t enough. The department waited until its furloughed employees lost access to their email, then gratuitously changed their out-of-office messages to include yet another partisan message, thereby turning its own workforce into political spokespeople through their official email accounts. The department may have added insult to injury, but it also overplayed its hand.”

While the case ultimately hinged on federal employees’ First Amendment rights, Payne said Cooper’s ruling “recognized the spirit of the Hatch Act and its role in making sure that you don’t have government employees saying something that would be considered partisan.”

With OSC having primary responsibility to enforce the Hatch Act, legal experts are closely watching what happens next with the shutdown complaints.

If OSC finds a Hatch Act violation occurs, it can bring the case before the Merit Systems Protection Board. The penalties for a Hatch Act violation can include removal from federal service, a reduction in grade, debarment from federal employment for up to five years, suspension, reprimand or a civil penalty of up to $1,000.

But OSC itself has also been at the center of the Trump administration’s efforts to rein in independent agencies. Trump earlier this year fired Special Counsel Hampton Dellinger with no explanation, drawing a short-lived legal battle.

And Trump’s nominee to replace Dellinger recently withdrew from consideration after offensive text messages came to light.

Jamieson Greer, the United States Trade Representative, is currently dual-hatted as acting Special Counsel.

“In the past, the Office of Special Counsel has been very thorough releasing opinions that give clear guidance on what activities are or are not violation of the Hatch Act,” Payne said. “But we’re not clear whether or not this agency will do that this time.”

The post What happens next with shutdown Hatch Act complaints? first appeared on Federal News Network.

Federal employees are picking up flexible gig jobs and investing more time in their side hustle to help make ends meet through the longest government shutdown on record.

And with many missing their second full paycheck this week, more feds are likely to explore back up sources of income while navigating a patchwork of rules that govern outside work for federal employees.

Federal employees are generally allowed to accept outside employment, so long as the job doesn’t conflict with their official position. The Office of Government Ethics maintains general standards on outside activities for federal employees. OGE has also published guidance specific to employees who are in non-pay status during a shutdown.

But each agency also has its own rules and processes for staff seeking outside employment. Most agencies advise employees to consult with an agency ethics officer before taking a second job.

“What it comes down to is that you can’t work for anybody that does any business with your agency, that wants to do business with your agency, that’s regulated by your agency, that has interests that might be affected by what your agency does, or in particular, what you do,” Erik Snyder, a federal employment attorney, told Federal News Network.

“The safest thing to do is to ask your ethics officer what is and what is not OK,” he added.

But ethics officials may also be furloughed during the shutdown, making it difficult to clear an outside job in advance. The Defense Department’s furlough guidance advises employees to consult with their agencies on any outside jobs once the shutdown is over.

“Once employees return to their federal employment, they should consult with agency ethics officials to discuss whether their outside employment during the lapse would require them not to work on matters involving their former employer for a period of one year,” the DoD guidance states. “If an employee is going to continue outside employment after returning to federal service, it is vital that the employee meet with an ethics official to ensure that the outside employment does not create a conflicting interest with the employee’s federal duties.”

Still, most rank-and-file employees are unlikely to run afoul of ethics rules by, for instance, taking a second job driving for Uber or pet sitting on Rover. The job site Indeed Flex surveyed 1,000 U.S. adults impacted by the shutdown last month and found 30% are using gig app platforms to quickly make money.

Even excepted employees, such as air traffic controllers, have started exploring gig work during their off-hours.

“People are finding they’re having to supplement their income by any means necessary, and what flexible work does, what these gig apps do, it allows people to maintain their full-time job, but be able to pick up gigs, pick up work that fits around their work life schedules to enable to earn more money,” Novo Constare, CEO and co-founder of IndeedFlex, told The Federal Drive with Terry Gerton in a recent interview.

Meanwhile, 43% of those surveyed by Indeed Flex said they were seeking remote or freelance opportunities, while 30% are looking for administrative, clerical, customer service, or call center work.

“They were looking for flexible work that suited or match their current skill set,” Constare said.

Meanwhile, some furloughed feds have also delved into side projects during the shutdown. A furloughed IRS attorney, for instance, had intended to run a hot dog cart on the weekends. But once the shutdown hit, he took it full time.

But even passion projects come with ethics rules. A DoD official, who for years has run a craft business during nights and weekends, described the detailed financial disclosure requirements and ethics training that comes with a side hustle. Senior government officials are subject to more rigorous requirements and restrictions around outside employment.

“They take it very seriously,” the official, who requested anonymity, told Federal News Network.

While hot dog carts and wood crafting are unlikely to trip ethics restrictions, feds should be more careful about side hustles that are more closely related to their official job duties. For instance, some furloughed feds may be exploring doing consulting in their area of expertise.

Michael Fallings, managing partner at law firm Tully Rinckey, said there isn’t any blanket prohibition on such work. But feds should be mindful of any potential conflicts of interest.

“If you’re an attorney representing the government, and you start a business representing individuals that may compete against the government, then that could be a conflict” Fallings said. “It could be allowable. It does depend on what the nature of the second business or the consulting is, but it’s always best to disclose that to your employer, rather than the employer finding out after the fact.”

The post Feds navigate rules for gig work, side hustles amid shutdown first appeared on Federal News Network.