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April 22, 2011
M E M O R A N D U M
TO:Chapter Presidents
RE:Display of Photos of President Obama
SUMMARY: The Office of Special Counsel has advised that the Hatch Act forbids the display of unofficial photographs of the President in government offices, now that he has announced his candidacy for re-election.
I have received a number of inquiries from chapters asking whether employees may displaypersonal memorabilia (such as photographs or former campaign posters) of President Obama in their government offices. You may recall that I advised you, in a chapter presidents’ memorandum dated November 6, 2008, that the Office of Special Counsel (OSC) had announced that the wearing of campaign paraphernalia (such as t-shirts and buttons) in the workplace, post-election, was permissible. That reasoning would include the display of campaign photographs in the post-election setting. OSC has now issued guidance stating that it is no longer permissible to display Obama campaign-related items in the workplace, now that the President has formally announced his candidacy for re-election.
As you know, the Hatch Act forbids employees from engaging in partisan political activity on duty, in a government building, while wearing a government uniform, or using a government car. This includes the display, in a government building, of pictures of candidates for partisan public office—even when one of the candidates is the President.
In its guidance of April 5, 2011 (attached), OSC acknowledges two exceptions to the prohibition of photographs of candidates. One is the display, in public or employee work space, of official photographs of the President. "Official photographs" are defined as the formal portrait of the President and also photographs issued by the White House or other government agencies of the President conducting official business. Photographs distributed by a campaign or a partisan political organization and images that employees might downloadfrom the internet and use as screen-savers do not qualify as "official photographs," even if they show the President performing an official act.
The other exception is for personal photographs. Therefore, if an employee has a photograph of himself with the candidate, taken at a personal event or function (not a campaign event), and the photograph has been on display in advance of the election season, the employee may leave the photograph on display. This means, for example, that an employee may continue
to display a photo of the President posing with the newlyweds if the President attended his wedding as a guest. Aside from these admittedly unusual circumstances, personal photographs of the President are now barred from the workplace.
In addition to raising questions about photographs of the President, some employees have asked whether they can have pictures of Michelle Obama, the First Lady, in the workplace. NTEU posed this question to OSC and was told that this would be permissible because she herself is not a candidate. OSC cautioned, however, that two conditions must still be met to eliminate a concern that the display of her photo represents partisan political activity: (1) the photo must have been first put up prior to the announcement of the President’s candidacy; and (2) the photo must not reflect or refer to the campaign.
Finally, I have heard concern expressed by some members that OSC might bedeparting from past practice and singling out President Obama in announcing this policy. An examination of OSC’s past interpretations of the Hatch Act does not support such a conclusion. OSC has consistently held that photographs of a candidate cannot be posted in the workplace during the campaign. See OSC advisory opinion dated May 2, 2008; supplemental advisory opinion dated December 12, 2008. The policy has been given more prominence now, but I have cause to believe that this is simply because it is only now that the issue has come to the forefront. Until now there have not been large numbers of employees who wanted to display the photographs of presidents during their re-election campaign. While, in the past, OSC could respond on a case-by-case basis to the few complaints or questions that office received on the matter, the recent volume of questions prompted the issuance of the guidance.
Colleen M. Kelley
National President
Attachment