 Applicability of the Hatch Act to the Chairman of the Native
                 Hawaiians Study Commission

T he Native Hawaiians Study Commission is an “ Executive agency” whose employees are covered by
   the H atch A ct, even though its functions are by statute confined to advising Congress. The part-
   tim e C hairm an o f the Commission is covered by the Hatch Act on the days she is paid to perform
   governm ent services,


                                                                                           June 3, 1982

      MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY
       GENERAL, LAND AND NATURAL RESOURCES DIVISION

   This responds to your request regarding the applicability of the Hatch Act to
the Chairman of the Native Hawaiians Study Commission (Commission). Based
on the memorandum accompanying your request, and on subsequent con­
versations with attorneys in the Lands Division, it is our understanding that the
Chairman intends to announce her candidacy for Lieutenant Governor of Hawaii.
She currently serves as a delegate to the State Legislature of Hawaii.
   The Commission was established in 1980 pursuant to the Native Hawaiians
Study Commission Act (NHSCA). Pub. L. No. 96-565, Title III, 94 Stat. 3321,
3324-3327 (1980), 42 U.S.C. § 2991a note (Supp. V 1981). The NHSCA directs
the Commission to “ conduct a study of the culture, needs, and concerns of Native
Hawaiians.” § 303(a). The Commission is to publish “ a draft report of the
findings of the Study,” to distribute the draft to “ appropriate” federal and state
agencies, native Hawaiian organizations, and the interested public, and to solicit
their written comments. § 303(c). The Commission is also directed to issue a
“ final report of the results of this Study” and to send copies to the President and
to two congressional committees.1 § 303(d). Finally the NHSCA directs the
Commission to “ make recommendations to the Congress based on its findings
and conclusions [from the Study].” § 303(e). See generally Memorandum Opin­
ion for the Chairman, Native Hawaiians Study Commission, from Theodore B.
Olson, Assistant Attorney General, Office of Legal Counsel (Jan. 4, 1982).*


   1 The two committees are the Committee on Energy and Natural Resources of the Senate and the Committee on
Interior and Insular Affairs of the House o f Representatives
   * N o t e - The January 4, 1982, opinion (“Applicability of the Federal Advisory Committee Act and the Govern­
ment in the Sunshine Act to the Native Hawaiians Study Commission” ) appears in this volume at p. 39, supra. Ed.

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   The members of the Commission were appointed by the President, who
designated the Chairman and Vice Chairman. These appointments were not
subject to the advice and consent of the Senate. § 302(b), (c). Commission
members who are not otherwise fulltime officers or employees of the United
States receive $100 for each day they are engaged in performing Commission
duties. § 302(g). All Commission members also receive travel expenses.
§ 302(h).
   Based on our review of the materials forwarded to us and the NHSCA, we
conclude that the Commission Chairman is subject to the Hatch Act on the days
she is compensated for Commission business. We note, however, that the Special
Counsel, Office of Personnel Management, is charged with primary jurisdiction
over the Hatch Act, and that more particular advice regarding application of the
Hatch Act to Commission members may be obtained from that Office. We have
also addressed briefly certain other statutory or regulatory provisions that may be
applicable.

                                         I. The Hatch Act

  The Hatch Act, 5 U.S.C. § 7324 (1976), provides in relevant part:

        (a) An employee in an Executive agency . . . 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.
Two initial questions are raised by this provision: (1) Is the Commission an
“ Executive agency” within the meaning of the Act; and (2) Is the Chairman a
covered employee?

A. Is the Commission an "Executive Agency” ?

   An “Executive agency” is defined in 5 U.S.C. § 105 (1976) as “ an Executive
department, a Government Corporation, or an independent establishment.” The
Commission is neither an executive department, see 5 U.S.C. § 101 (1976), nor
a government corporation, see 5 U.S.C. § 103 (1976). However, an “ independ­
ent establishment” is essentially any other organization within the Executive
Branch. See 5 U.S.C. § 104 (1976).2Thus, if the Commission is an entity within
the Executive Branch, it is an “ Executive agency” within the meaning of the
Hatch Act.

 2 5 U S C. § 104 provides
     For the purposes of this title, “ independent establishment” means—
          (1) an establishment m the executive branch (other than the United States Postal Service or the
       Postal Rate Commission) which is not an Executive department, military department, Govern­
       ment corporation, or part thereof, or part of an independent establishment, and
          (2) the General Accounting Office.


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   Whether the Commission falls within the Executive Branch or the Legislative
Branch is a difficult question because of the Commission’s hybrid nature. Several
factors point to its being non-executive. First, the Commission was established to
advise Congress rather than the President or executive agencies. See Gannett
News Service, Inc. v. Native Hawaiians Study Commission, Civ. No. 82-0163,
slip op. at 5 (D.D.C. June 1, 1982) (holding that the Commission is not advisory
to the Executive and is therefore not subject to the Federal Advisory Committee
Act); January 4, 1982 Memorandum Opinion, supra. Second, the Commission
was initially funded from the contingent fund of the Senate, § 307(a), thus
indicating its close ties with the Legislative Branch.
   Our prior conclusion that the Commission was not “ established” to advise the
President or federal agencies pointed out that the Commission would nonetheless
be subject to the Federal Advisory Committee Act (FACA) were it so utilized by
the President or federal agencies. See January 4, 1982 Memorandum Opinion,
supra. In other words, the Commission could become advisory to the Executive
by its actions or the ways in which it was used in the Executive Branch. This
possibility serves to point out that there is not always a bright line dividing the
Legislative and Executive Branches, and that an advisory function to one branch
does not preclude a similar function to another. Thus, while the fact that the
Commission was established as advisory to Congress deserves special weight in
assessing whether the Commission falls within the Executive Branch, this factor
alone need not be conclusive.
   Other factors, in fact, suggest that the Commission is in the Executive Branch.
First, the members of the Commission are appointed solely by the President,
§ 302(b), who also designates the Chairman and Vice Chairman, § 302(c), and
who is responsible for calling its first meeting, § 302(e). Several Commission
members are fulltime employees in the Executive Branch. Second, although the
Commission is advisory only to Congress because it makes recommendations
only to Congress, § 303(e), its final report and written comments are submitted
to the President as well as to Senate and House committees, § 303(d). Third, the
Commission is now funded from appropriations for the Executive Branch out of
the Unanticipated Needs Fund, which is an item in the appropriations for the
Executive Office of the President. Executive Office Appropriations Act of 1980,
Pub. L. No. 96-74, 93 Stat. 565 (1979). Finally, the Commission’s office space is
located in an executive department, the Department of the Interior, from which it
receives staff support. These factors tend to support a conclusion that the
Commission is established within the Executive Branch.
   Not all committees in the Executive Branch are advisory in nature, as the
Office of Legal Counsel has previously recognized. See Memorandum Opinion
for the Acting Director, Executive Office of United States Attorneys, 5 Op.
O.L.C. 283 (1981) (possible to construct committee that is not advisory but is
rather intended to exchange information and data). Furthermore, a commission
may have dual responsibilities— as in this case, advisory to Congress, fact­
finding and reporting to the President— without necessarily losing its character as
an executive entity.

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   Oh the one hand, therefore, we are faced with a body established to advise
Congress, whose role in conducting a study, publishing a report, and making
recommendations to Congress might be viewed as merely in aid of Congress’
legislative functions. See Buckley v. Valeo, 424 U.S. 1, 139 (1976) (per curiam).
On the other hand, however, the Commission’s members are appointed solely by
the President and include executive officers; it is funded out of and physically
located in the Executive Branch; and its responsibilities include fact-finding and
reporting to the President. Furthermore, the making of recommendations to
Congress is not a purely legislative function, but falls squarely within the duties
and powers of the Executive. See U.S. Const. Art. 2, cl. 3. Thus, even the
mandate of the Commission to make recommendations to Congress need not be
viewed as inconsistent with executive functions. Although we recognize that this
is a difficult question, we conclude that the circumstances viewed as a whole
point to the Commission as an entity within the Executive Branch.

B. Are Commission Members Covered Employees?

   The Hatch Act applies generally to employees in executive agencies, with
certain specified exceptions. See 5 U.S.C. § 7324(c) & (d); Federal Personnel
 Manual at 733-5 (“In the absence of specific statutory exemption, the basic
 political activity restrictions apply to any person employed in the executive
branch of the Federal Government. . . .” ). The Chairman is clearly not a fulltime
employee of an executive agency. Nevertheless, the Hatch Act applies to em­
ployees who work on an irregular or occasional basis on those days for which
they are paid to perform government services. See 5 C.F.R. § 733.123(b)(4)
(1981). As explained in the Federal Personnel Manual, “ [p]ersons who are
employed on an irregular or occasional basis, e .g ., experts and consultants on a
per diem basis, . . . are subject to the political activity restrictions of the law
while in an active duty status only and for the entire 24 hours of any day of actual
employment.” Federal Personnel Manual at 733-5. Employees in both the
competitive service and the excepted service are subject to the restrictions of the
Hatch Act. See 5 C.F.R. § 733.201.
   There are several exceptions to Hatch Act coverage. The prohibition against
taking an active part in political management or political campaigns does not
apply to “ an employee paid from the appropriation for the office of the Presi­
dent.” 5 U.S.C. § 7324(d)(1). It has been suggested that this exemption would
apply to Commission members for so long as the Commission is funded from the
Unanticipated Needs Fund in the Executive Office of the President.
   The item “ Office of the President,” as used in appropriation statutes when the
Hatch Act was enacted, has since been replaced by the item “ The White House
Office” in appropriations for the Executive Office of the President. The Office of
Legal Counsel has previously interpreted the “ Office of the President” exemp­
tion to apply only to the White House Office. See 1 Op. O.L.C. 54, 56 (1977).
(Application of the Hatch Act to the Vice President’s staff: “ the exemption to the
Hatch Act in 5 U.S.C. § 7324(d)(1) was intended to apply only to persons paid

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from the item for the ‘White House Office,’” and not to those paid from other
items in appropriations for the Executive Office of the President.) This distinction
reflects the congressional intent to provide an exemption for that “ inner circle of
personal advisers to the President” whose government jobs are essentially “ as
adjuncts to the President in his role as a political officer.” Id. at 55-56.
   The current appropriation for the Executive Office of the President has 12
separate items, including items for the White House Office, the Unanticipated
Needs Fund, the Office of Management and Budget, the Office of Policy
Development, etc. The Unanticipated Needs Fund is independent of the White
House Office item. Consistent with prior OLC precedent, therefore, we conclude
that funding from the Unanticipated Needs Fund is not sufficient to satisfy the
Hatch Act exemption for those paid from appropriations for the Office of the
President.3See also Memorandum for the Clemency Board from Antonin Scalia,
Assistant Attorney General, Office of Legal Counsel (Sept. 24, 1974) (Unantici­
pated Personnel Needs Fund of the President does not fall within exemption).
   Finally, the Hatch Act also does not apply to “ the head or the assistant head of
an Executive department or military department.” 5 U.S.C. § 7324(d)(2). This
exception is inapplicable to the Chairman, however, because the Commission is
not an “ Executive department.” See 5 U.S.C. § 101. Nor is the Chairman
exempt under § 7324(d)(3), which applies to persons appointed by the President,
“ by and with the advice and consent of the Senate.” Thus, none of the arguably
relevant statutory exceptions applies to the Chairman of the Commission.4
   We therefore conclude that the Chairman of the Commission is subject to the
provisions of the Hatch Act, as set forth in more detail at 5 C.F.R. § 733.122, on
the days for which she is paid to perform government services. According to
informal advice from the legal staff of the Office of Personnel Management
(OPM), these prohibitions go to the Chairman directly, but would not prohibit
billboard or other advertisements on her behalf on those days. We suggest,
however, that the Chairman obtain further advice as to particular prohibitions
from the Office of the Special Counsel at OPM, which has primary jurisdiction
over Hatch Act matters.

                      II. Other Statutory and Regulatory Provisions

   There are several other statutory and regulatory provisions of which the
Chairman should be aware. Pursuant to 18 U.S.C. § 602, for example, it is a
crime for “ a person receiving any salary or compensation for services from
money derived from the Treasury of the United States to knowingly solicit any

   3 It might be argued that when the President uses Unanticipated Needs Rinds for the White House Office itself, the
Hatch Act exemption should apply nonetheless We need not address this possibility, however, because it is clear in
this case that Commission members are not located in the White House Office as advisers to the President.
   4 “ ftrso n s who are retained from time to time to perform special services on a fee basis and who take no Oath of
Office” also enjoy exemption from the Hatch Act See Federal Personnel Manual at 733-6. We have assumed that
the Commission members take an oath o f office, but in any event we do not believe this exception applies to a
Commission Chairman appointed for a term . It is intended instead to apply to those receiving a fee, such as
attorneys

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contribution within the meaning of section 301(8) of the Federal Election
Campaign Act of 1971 from any other such officer, employee, or person.” 18
U.S.C. § 602(4) (Supp. V 1981).5 Additionally, no officer or employee of the
United States, or a person receiving any salary or compensation from the United
States Treasury may make such a contribution to his or her employer or employ­
ing authority. 18 U.S.C. § 603 (Supp. V 1981). Presumably, this latter provision
would prohibit Commission staff from making any contribution to the Chair­
man’s campaign efforts.6
  Finally, the Chairman should also be cognizant of the standards of conduct
embodied in 3 C.F.R. § 100.735 for the Executive Office of the President, which
will presumably apply for so long as Commission expenses are paid from
Executive Office appropriations,7 and those embodied in 5 C.F.R. § 735, which
represent the minimum standards of conduct applicable to federal employees. Of
particular concern during a campaign for state office is the following prohibition:
          (1) An employee shall avoid any action, whether or not specifi­
              cally prohibited . . ., which might result in, or create the
              appearance of:
              (1) Using public office for private gain. . . .
3 C.F.R. § 100.735-4(c)(l); accord 5 C.F.R. § 735.201a(a). Copies of the
standards of conduct embodied in Titles 3 and 5 of the Code of Federal Regula­
tions are attached.
                                                               T   heodore      B. O    lson

                                                           Assistant Attorney General
                                                            Office of Legal Counsel




  5 “ Contribution” is defined in detail at 2 U.S C § 431(e).
  6 For the purposes of the criminal conflict of interest laws, 18 U S C §§ 202-209, the Chairman is a “ special
Government employee,” see I8 U .S .C § 202, to whom some, but not all. of those provisions apply. See, e g.. 18
U.S.C. § 208 (prohibiting personal and substantial participation in a particular matter in which employee or his or
her family or organization has a financial interest)
  7 The standards of conduct found at 3 C F R § 100 735 apply not only to the White House Office, but also to
other entities in the Executive Office of the President, including “ any committee, board, commission, or similar
group established in the Executive Office of the President 3 C F R § 100 735-2(a).

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