                                                                               January 27, 1977

78-73 MEMORANDUM OPINION FOR THE DEPUTY
      COUNSEL TO THE PRESIDENT
      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.

   'The 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 “ [participa­
 tion 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 inde­
pendence 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 eon U lm an
                                                Deputy Assistant General Counsel
                                                              Office of Legal Counsel




   3For example, if (he individual were employed in (he W hite House Personnel Office, there could
be an appearance that the Democratic National Committee would have more influence in selecting
persons to fill important Government posts than might otherwise be true. Also, if the individual
took an active interest in certain Government 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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