Public Contract Law Journal

Give Contractors the Hatch, Not the Axe: Extending Political Activity Speech Rights to Personal Service Contractors Under the Hatch Act

by Alexandra Schwartzman

Alexandra Schwartzman (aschwartzman@law.gwu.edu) J.D., expected May 2019, The George Washington University Law School; M.S., 2016, Columbia University; B.A., 2012, Oberlin College. I would like to thank Professors Collin Swan and Naomi Schoenbaum for their time, insight, and guidance. I would also like to thank my family for their unwavering patience and support.

The public interest in having free and unhindered debate on matters of public importance — the core value of the Free Speech Clause of the First Amendment — is so great [that] statements by public officials on matters of public concern must be accorded First Amendment protection.1

I.   Introduction

In November 2017, Juli Briskman unexpectedly found herself biking alongside the presidential motorcade.2 Frustrated by the President’s open callousness toward Deferred Action for Childhood Arrivals recipients, his lackluster response for Puerto Ricans in the wake of a devastating hurricane, and his discriminatory approach to healthcare, Briskman “flipped off” the motorcade in a spontaneous act of political defiance.3 A White House photographer caught the moment on film, and the photograph quickly made its way onto the Internet.4  Because the photograph circulated on social media platforms so quickly — indeed, Briskman herself used the photo as her profile picture on Facebook — she decided to alert her employer before they saw it themselves.5 Briskman was an employee with Akima LLC (“Akima”), a company that recruits employees who are then contracted out to work in both government agencies and private businesses.6 Though the photo does not reveal any particularly discernable features linking the image to Briskman or Akima, the company promptly fired Briskman.7 Akima provided two rationales for its decision: first, because the photograph might impact the company’s relationship with a customer, the U.S. government, and second, because her actions amounted to a violation of the company’s social media policy prohibiting obscene content on social media.8 Activities like Briskman’s are scrutinized increasingly because of the expanding role of social media and how people harness their accounts as a platform for their political beliefs and allegiances.9

Akima classified Briskman as its employee, but it is possible that she worked for Akima’s clients in what could be described as an independent contractor role.10 Independent Independent contractors are distinct from employees because they exercise a greater deal of autonomy in their work. Independent contractors often make their own schedules and provide their own supplies, receive minimal supervision from superiors, and have diminished opportunities for financial gain or loss.11 Akima provides placement services that fit independent contractors into positions with government agencies and contractors.12 Once in these agencies, the workers often perform in positions similar or identical to government employees,13 manifestly becoming personal service contractors. Personal service contractors are those individuals who conduct their work and have the appearance of federal employees, but are hired under contract and not subject to civil service laws.14

Briskman’s work was associated with the government, so perhaps it would have made sense to provide her with the same protections as a public employee. Public employees retain their First Amendment free speech rights subject to the balancing test set forth in Pickering v. Board of Education.15 Though a court is the ultimate arbiter in determining whether Briskman was speaking on a matter of public concern and how severely that would impact her ability to carry out her duties, it is at least foreseeable that Briskman would be able to make a colorable argument on her own behalf.16

But Briskman was not simply engaging in any matter of free speech: the actions that led to her termination were political. Had she been a government employee, her actions would have been scrutinized under the Hatch Act of 1939 (“the Hatch Act”),17 which seeks to create a system of federal governance that is not corrupted by political ideologies.18 The Hatch Act allows federal government employees to participate in the United States’ political process as much as is practicable to continue carrying out their work responsibilities.19 The Hatch Act safeguards federal employees against retaliation or discipline for serving in a role that involves political management or on a political campaign,20 or for expressing their personal opinions regarding political topics or candidates.21 Yet these permissions to participate politically must be balanced against the employee’s duty to carry out work responsibilities without conflict or corruption.22 Correspondingly, the Hatch Act establishes limitations on an employee’s ability to engage in political acts that are “directed at the success or failure of a political party, candidate for partisan political office [or] partisan political group.”23 The allowances that federal employees are given to engage in political activity are restricted further by a statutory prohibition against engaging in political activities while on duty, in an official government building, wearing markers of federal employment, or in a government vehicle.24 Because Briskman did not engage in any of the prohibited political activities set forth in the statute, it is possible she would have been protected against retaliatory firing as a federal employee.25

Unlike federal government employees, however, independent and personal service contractors do not benefit from the Hatch Act’s protections and prohibitions.26 This disadvantage should be particularly concerning as the preceding decades have shown a marked increase in government agencies hiring contractors to do the same work as federal employees.27 This was motivated by the desire to shift away from “big government” and reduce government spending as the United States advanced into the 1990s.28 Personal service con- tractors, in particular, have permeated an array of government positions, from military personnel to foreign language broadcasters, but carry out their work absent the legal protections and benefits that federal employees receive.29 In light of such an amalgamated federal workforce, why should Briskman or contractors like her not have been subject to the same protections and limitations as her government counterparts? Encouragingly, the Office of Special Counsel has issued a nonbinding advisory opinion permitting personal service contractors to engage in political activity on social media, so long as it does not violate any of the prohibitions listed in 5 U.S.C § 7323, just as federal employees are able to do.30

Part II of this Note presents a brief discussion of Supreme Court precedent on extending free speech protections, specifically on matters of political significance, to independent government contractors. Part III outlines the current protections and prohibitions on political activity by government employees as governed by the Hatch Act. This Note addresses these activities with a specific focus on workers’ political activity on social media platforms. Part IV discusses the decades-long rise of the blended workforce that places government contractors and government employees in indistinguishable positions. Finally, Part V argues that Congress should amend the Hatch Act language to cover personal service contractors in both the protections and prohibitions regarding political activity, including activity based on social media.

II.   Historical Underpinnings: Federal Contracting Trends & Free Speech Rights for Independent Contractors

For decades, even before the rise of the blended workforce, government contractors have raised concerns over the scope and extent of their free speech rights. The precedent established through the Supreme Court for independent contractors helps to contextualize the current importance of public speech for personal service contractors. However, this precedent could not have foreseen recent technological advances and the shifting composition of the federal workforce. The cases distinguish themselves by addressing the free speech rights of independent contractors, a distinct class of workers from personal service contractors. This Part identifies the key Supreme Court cases to establish rights of government contractors speaking on political issues. It then recognizes the way that questions regarding free speech have changed in light of advancing technology. Despite these advancements, the government’s core fears for allowing unrestricted free speech, such as trust in employees and ability to carry out work responsibilities efficiently, remain unchanged.

A.  Umbehr and O’Hare Truck Service Created Limited Rights for Government Contractors to Speak on Issues of Public Concern

In 1996, the Supreme Court heard Board of County Commissioners v. Umbehr.31 Umbehr was a government contractor who had been awarded a contract for trash hauling services.32 Umbehr retained the contract from 1985 to 1991 for six Kansas-area cities.33 During Umbehr’s seven years of service, he became an outspoken critic of the Wabaunsee County Board’s policies and practices.34 Umbehr vocalized his concerns at local board meetings and wrote editorials in the local newspaper, which the County Board attempted to sup- press.35 As a result of Umbehr’s public condemnation of the Board, in 1990 the Board voted to terminate his contract the following year.36

In Umbehr, the Supreme Court examined the extent to which the Pickering balancing test should apply to independent contractors.37 In Pickering, the Supreme Court provided public employees with the possibility for free speech protections when their speech is of substantial benefit to the public.38 This holding emphasized the powerful role that public employees have in commenting on matters that may broadly affect the nation’s people, but which public employees may be uniquely poised to comment on.39 Similarly, after Umbehr was argued in the Supreme Court, the majority upheld the decision protecting Umbehr’s speech, but clarified that independent contractors only enjoy free speech rights in certain contexts.40 The same day that Umbehr was decided, the Supreme Court issued the holding for a companion case, O’Hare Truck Service v. City of Northlake.41 That case also preserved independent con- tractors’ free speech rights.42

Government contractors are a degree removed from public employees. The scope of their work generally is confined to specific projects, and the benefits or detriments of the entire company do not specifically impact them.43 Still, these workers maintain ties to government agencies and accordingly may be in a better  position  to  comment  on  matters relating to politics or government operations. Umbehr and O’Hare are at least partially representative of the politically charged free speech actions of government contractors. However, those cases symbolize an era when government contracting was still used primarily for purchasing goods and construction contracts.44 As society has shifted towards using government contracting to procure services, protecting contractors’ First Amendment rights similarly must change.45

B.  Government Procurement Has Shifted Away from the Procurement of Goods and Construction Contracts Towards Procurement of Services

Umbehr and O’Hare set the precedent for independent contractors’ free speech rights over two decades ago. In the intervening decades, the U.S. cultural landscape has changed substantially such that these cases no longer wholly represent our concerns for contractors’ free speech rights. While some litigation regarding the First Amendment free speech rights of independent contractors who bid on government contracts has taken place, this claim is made infrequently within the U.S. legal system.46

Historically, when we think of government procurement, we envision the process through which the U.S. government meets its needs for construction projects and the purchase of goods.47 Government contracting utilizes sealed bidding or competitive negotiation procedures to award a contract as set out in the Federal Acquisition Regulation (FAR).48 The federal government continues to engage in this manner of procurement.49 Contracts are awarded to independent contractors who operate outside the classic employer-employee relationship, instead completing their assignments with relative autonomy to control and supervise the particular project.50 Between 2011 and 2015, the federal government spent over $2.4 billion in government contracts.51

Thus, a marked distinction between federal employees and independent contractors exists. In contrast to the bidding or competitive negotiation procedures for independent contractors, federal employees are appointed in accordance with civil service laws.52 Civil service laws are subject to presidential discretion and reform.53 Applicants may be required to go through competitive testing relevant to the desired position.54 Agency heads oversee appointment of federal employees and are charged with enforcing all applicable rules and prohibitions.55

Less obvious, then, is how to distinguish personal service contractors from federal employees. Despite divergent hiring procedures,56 personal service contractors conduct their job responsibilities with the government in the typical employer-employee manner.57 The FAR defines personal service contracts as those which “by its express terms or as administered makes the contractor personnel appear to be, in effect, [g]overnment employees.”58 A determination of whether a government worker is a personal service or independent contractor is evaluated “in light of its own facts and circumstances” with “the key question always being: Will the [g]overnment exercise relatively continuous supervision and control over the contractor personnel performing the contract?”59 The FAR specifically prohibits the use of personal service contractors unless a statutory exception permits, instead favoring the traditional requirements of the competitive appointment procedures as mandated by civil service laws.60 Personal service contractors secure these positions either through a direct contract with the government agency or through a third-party recruiting agency.61

Despite the prohibition, many agencies ignore the ban against personal service contracts.62 The prohibition started to interfere with government downsizing goals in the 1990s.63 Hiring personal service contractors who do not technically qualify as government employees allowed agencies to maintain their workforce strength while still reducing employment numbers.64 From 2011 to 2015, $1.5 billion of federal contracts were awarded as personal service contracts.65 On average, those numbers suggest the federal government spends roughly $300 million on personal service contracts annually.

The current reality of the government workforce reflects a system where federal government employees and personal service contractors work in near identical positions completing work of generally the same type and scope.66 This is a result of the 1993 National Performance Review where the Clinton administration identified over 200,000 federal positions to eliminate.67 This report was released following a wide-ranging push for a reduction in the civil servant workforce.68 Once federal employment positions were eliminated, thereby diminishing the “era of big government,” the tasks and responsibilities that those employees performed still needed to be completed.69 The government was forced to contract out to satisfy those duties because the employment numbers were insufficient.70 This trend continues today.

The government has undertaken only piecemeal efforts to investigate the prevalence of personal service contracts awarded in specific agencies. The Department of Defense experienced a 129% increase in spending on service contracts from 2000 to 2012.71 (See Table 1.) More broadly, service contracting across all federal agencies from 2000 to 2012 experienced a 146% increase in “professional, administrative, and management services.”72 Although this information is illuminating, the full extent to which the federal government utilizes personal service contractors remains unknown because no fully established formal channels exist to report it.73 At minimum, the data clearly reveal that it is increasingly common for government employees and personal service contractors to work alongside each other, in vastly similar positions.

TABLE 1: Federal Spending on Contracts: 2000 & 201274

C.      Despite Cultural Changes, the Government’s Concerns About the Speech of Its Employees Remain

In Pickering, a public school teacher submitted a letter to a local newspaper commenting on the school’s proposal to raise revenue, requiring a tax increase.75 The school terminated Pickering, citing the letter as a “detriment to the interests of the school system.”76 The Supreme Court established a fact-intensive balancing test and, with it, held Pickering’s termination as a violation of his First Amendment free speech right.77 As set forth in Pickering, the state as an employer has an interest in safeguarding activities to ensure productivity and reduce interferences from potentially polarizing ideological and social perspectives of its employees.78 But this does not give a public employer the unabridged right to discipline or terminate employees who speak on matters of public concern.79 Public employers will prevail only where they can confidently anticipate that problems will arise, either between coworkers or within the “regular operation of the enterprise.”80

Despite the transformations that have taken place in both public and private workplaces, the core concerns regarding free speech by public government employees remain.81 Part of this concern is that government employees, opining on public issues that contradict the views of their employers, may erode the trust between those individuals and make it impossible for them to work together.82 This uncertainty further extends to the public’s trust and confidence in those institutions.83 The public entrusts the government to employ public officials who are not biased in such a way that impedes their ability to carry out their work impartially.84 This is especially important with officials who conduct their work directly through interactions with the public, who require that “truthful and accurate information” be conveyed to them.85 Finally, the government fears that employees may use their positions to unfairly influence the general public to agree with them in favoring a certain candidate or cause.86 Yet these concerns of worker bias and the impact it has on their work exists regardless of whether an employee is a personal service contractor or a federal employee.

So, too, have the methods and frequency of communication changed. Umbehr lost his contract because of the comments that he made at local board meetings and in local newspapers.87 While those avenues of public dis- course still exist, the creation and widespread use of the Internet have restructured how we communicate and interact with people from different parts of the country and the world. There has been a seismic shift in social media use over the last fifteen years as a tool of communication and influence that only continues to grow.88 In 2005, Pew Research Center data revealed only seven percent of U.S. adults used social media networks.89 But by 2012, sixty percent were using social networking sites such as Facebook or Twitter.90 Three years later, that number increased to sixty-five percent.91 The impact of social media on modern society is clear. It has become a societal norm to use social media to connect with others and find social groups based on common interests, including political allegiances.92

Importantly, Pew’s 2012 study also revealed that of the social media-using population, a majority had used social media for a political or civic activity.93 There are various ways the public uses social media to be political: to highlight a specific social issue,94 to help a candidate get elected,95 to encourage people to vote,96 and others. This is a significant change from the limited nature in which Facebook had been used as a political tool in the 2008 presidential election.97 The public’s increased comfortability with using social media is becoming apparent, but the extent to which these platforms impact political action remains an enigma.

III.  The Legal Landscape for Federal Government Employees Speaking on Political Issues

Cases of public-employee free-speech rights frequently hinge on incidents where the worker spoke on a matter of public concern or political significance.98 Indeed, those who work for the government often are informed on political issues and feel motivated to speak on them due to the inexorable connection to their work. This Note focuses specifically on the political free speech rights of personal service contractors who are not classified as government employees. Because they do not technically operate under the same statutes and regulations, similarly situated workers are subject to different laws and statutory protections and prohibitions. This Part provides an overview of the Hatch Act, the law that imposes restrictions and provides protections to public employees engaged in political speech.

A.   The Hatch Act Governs Permissions and Prohibitions of Political Speech

Historically, our country has been apprehensive about the impact political partisanship may have on the federal workforce.99 This concern was reanimated in the latter half of the nineteenth century, evidenced by Congress’ passing of the Pendleton Act in 1883.100   The Pendleton Act was designed    to create and enforce a system of federal governance based on merit, rather than political allegiance.101 In turn, the Pendleton Act established the Civil Service Commission, which sought to eradicate political coercion by government employees.102 Shortly after its enactment, Congress broadened the Act preventing political coercion to also disallow federal employees from actively seeking opportunities to carry out political management or campaigning.103

The Hatch Act was enacted subsequently in 1939 to codify the limitations set out in the Civil Service Commission’s political activity ban.104 By its own terms, the Hatch Act addresses the permissible participation of federal employees in political activities as well as certain prohibitions.105 These provisions espouse the dual goals of, on the one hand, protecting against infiltration and domination of a particular political party within the government and, on the other, reaffirming that successful performance as a federal employee is not contingent on one’s political loyalties.106

When viewed through a limiting lens, the Hatch Act specifically prohibits employees from partaking in political activities (i) while on duty, (ii) while on property used to carry out their official duties, (iii) while wearing an official uniform or any other government marker, or (iv) while in a vehicle under government control.107 But the Hatch Act also protects federal employees from being terminated, disciplined, or discriminated against because of the political activities in which they engage while acting outside their role as a public servant.108 Federal employees do not forfeit their right to vote or express their “opinion[s] on political subjects and candidates” as a result of their choice of employment.109 Should federal employees find themselves interested in partaking in certain political activities while off duty, not in the workplace, and in an unofficial capacity, the Hatch Act gives them the autonomy to do so without fear of disciplinary repercussions.110

B.   Untangling the Management and Enforcement of the Hatch Act

Our country’s longstanding devotion to the separation of  powers  and due process obligated Congress to assign the adjudicatory and prosecutorial functions of administering the Hatch Act to be shared among multiple government entities.111 Since 1978, oversight of the Hatch Act has been divided and carried out by three agencies: the Office of Special Counsel (OSC), the Office of Personnel Management (OPM), and the Merit Systems Protection Board (MSPB).112 The OSC has power to “receive and investigate allegations of prohibited personnel practices,”113 while the MSPB has power to hear or adjudicate all Hatch Act matters,114 and the OPM “execut[es], administ[ers], and enforce[es] . . . the civil service rules and regulations of the President and the Office and the laws governing the civil service.”115

In overseeing and adjudicating claims brought under the Hatch Act, the tripartite system inherently must first determine whether the alleged violator is a federal employee as defined by the statute itself.116 The statutory title recognizes employees as “any individual, other than the President and Vice President, employed or holding office in — (A) an Executive Agency other than the Government Accountability Office, or (B) a position within a competitive service which is not in an Executive agency.”117 The statutory chapter excludes from coverage “members of the uniformed services or an individual employed or holding office in the government of the District of Columbia.”118 The subchapter specifically addressing prohibited activities defines the scope of applicable employees to persons whose duties and responsibilities . . . continue outside normal duty hours and while away from the duty post; and . . . an employee paid from an appropriation for the Executive Office of the President; or an employee appointed by the President . . . whose position is located within the United States, who determines policies to be pursued by the United States in relations with foreign powers or in the nationwide administration of Federal laws.119

The MSPB has wide discretion to determine an appropriate penalty in the face of a meritorious claim of a Hatch Act violation. Under 5 U.S.C. § 7326, the MSPB may order “removal, reduction in grade, debarment from Federal employment, suspension, reprimand, or an assessment of civil penalty.”120

C.  Applying the Language of the Hatch Act to the Internet and Social Media

The OSC has issued guidance on what constitutes political activity under the Hatch Act, with specific attention towards social media platforms.121 The OSC considers political activity as “any activity directed at the success or failure of a political party or partisan political group . . . or candidate in a partisan race.”122 In practice, this guidance permits federal employees to like, post, share, tweet, or retweet on various social media platforms, so long as they do not violate any of the prohibitions as set forth in 5 U.S.C. § 7324(a).123 The Hatch Act does not ever permit an employee to suggest or request that other government personnel make political contributions to the employee’s own or a third party’s political campaign.124

A closer look into actual violations of the Hatch Act demonstrates the range of ways social media platforms can be used improperly. In 2014, the OSC investigated a United States Air Force federal civilian employee for Hatch Act violations.125 There, the employee repeatedly sent partisan political emails from a government account while on duty.126 He received a forty-day suspension for his activities.127 Also in 2014, a Postal Service employee was removed from his position after running a political campaign and seeking contributions on his Facebook page in violation of 5 U.S.C. § 7323(a)(2).128 In 2016, an employee was suspended for three days without pay for returning to her federal workplace, while on leave, to collect signatures for a nominating petition for a political candidate.129 She also retweeted the candidate’s request for political contributions on her personal Twitter account.130 In 2017, White House Director of Social Media, Dan Scavino Jr., posted a tweet in efforts to bring about the defeat of Representative Justin Amash in an upcoming primary election.131 Mr. Scavino was reprimanded for his political activities.132 Also that year, Ambassador Nikki Haley was found to have violated the Hatch Act when she retweeted a tweet by the President in support of congressional candidate Ralph Norman.133 Though Ambassador Haley used her personal Twitter account, because her profile included significant indicators of her position, an official government headshot, a byline that made mention of her position, and her previous posts included official substantive matters, she was found to have used her official government position to advance partisan elections.134 Most recently, in early 2018, a United States Postal Service employee was given a fifty-day suspension without pay for sharing political postings on Facebook while clocked in at work.135 As new social media platforms continually are developed, it is likely that these manifestations of political activity will become only more diverse and widespread.

IV.  The Rise of a Blended Work Force

Initially, enforcement of the Hatch Act was straightforward because government workers followed the standard application and appointment process as set forth in the federal civil service laws. But a societal shift away from “big government” increased reliance on personal service contractors to supplement the traditional government workforce.136 This Part examines why personal service contractors have come to replace traditional government workers and the difficulties that have emerged in distinguishing between such workers.

A.  How Personal Service Contractors Came to Supplement the Federal Workforce

The Clinton administration’s renouncement of “big government” sought to reduce government spending.137 Despite a diminishing workforce, the same mandates were still in place, and agencies were expected to operate and pro- duce results at the same level.138 Practically, this meant agencies were required to do more work with fewer workers.139 Recruiting personal service con- tractors was necessary to make up for a smaller federal workforce.140 These personal services contractors were recruited through agencies referred to as “body shops.”141 Professor Kathleen Clark notes: “Body shops are companies that supply the government with laborers (‘bodies’) to work in government offices, side-by-side with government employees, often to perform exactly the same tasks as government employees.”142

Personal service contractors were appealing because they allowed agencies to meet their hiring demands quickly, rather than be derailed by the languid process of the federal government.143 Government agencies also incorrectly believed that personal service contractors would amount to less costly hires.144 Yet the federal government’s spending actually increased as a result of the personal service contractors’ prominent role in the federal workforce.145

Despite the FAR’s facial rejection of the use of personal service contractors, agencies have found ways to circumvent this provision. Because agencies relied on personal service contractors to carry out normal business operations, statutory and regulatory authorizations were pushed through permitting the agencies to temporarily hire workers, thus overriding the FAR.146 Should agencies find themselves unable to obtain necessary authorization, they plainly ignore the FAR’s prohibition against hiring personal service contractors.147

B.     The Federal Government Spends Significantly to Employ Personal Service Contractors

Federal agencies have spent significant money on awarding personal service contracts for at least a decade.148 In 2007, the Army Contracting Agency’s Contracting Center of Excellence (“CCE”) found that contract specialists149 made up twenty-four to thirty percent of the CCE workforce in the four years since the agency started onboarding them.150 The CCE found that contract specialists operating at the GS-12 CCE level were paid an hourly rate of roughly seventeen percent more than their government employee counterparts.151 That figure increased to twenty-seven percent for GS-13 specialists.152 A Government Accountability Office (GAO) study found that between 2011 and 2015, the government allocated $1.5 billion on personal service contracting.153 The GAO estimated that four federal agencies accounted for sixty percent of personal service contract spending in 2014: the Air Force, the Navy, the Army, and the United States Agency for International Development (USAID).154 While these numbers provide a foundation for conceptualizing the extent to which personal service contracts are employed in our government, the report acknowledges the inconsistencies in tracking personal service contracts.155 Because there is no centralized reporting mechanism, the exact number of federal workers who actually are classified as personal service contractors is unknown.156

C. The Difficulty in Distinguishing Between a Federal Employee and Personal Service Contractor

In practice, differentiating between a personal service contractor and a federal government employee has become an increasingly exacting endeavor. A GAO study acknowledged that it is difficult to ascertain how often personal service contracts are entered into because the manner of contracting    is ambiguous.157 The GAO is not the only government entity that has recognized the blurred lines between federal employee and contract workers; in 2010, Defense Secretary Robert Gates admitted he was unsure of the number of independent contractors working for him in the Office of the Secretary of Defense.158 This uncertainty may in part be due to the imprecise nature in which personal service contracts are awarded. Often, contracts will state they are for nonpersonal service contracts, yet performance of work is carried out in line with that of a personal service contract.159

Employees themselves may be unaware of who is a federal employee and who is a personal service contractor. Our country’s military illustrates a workforce that is now largely comprised of contractors, with more contractors serving in Iraq and Afghanistan than military personnel.160 Yet the individuals who keep our country safe and risk their lives for our safety are not protected by the same federal laws.161 More generally, “the government is contracting out everything from clerical and sanitation service, to military, policing, and regulatory responsibilities. Private firms are hired by agencies to manage their personal systems, to build and run their information technologies, and to do consulting work.”162 Personal service contractors assume positions that require the highest level of security clearance that our government issues.163 Indeed, many people might be surprised to learn that a memorial statue honoring twenty-two CIA agents killed in the post-9/11 era in fact includes eight contractors.164

V.   The Hatch Act Should Include Personal Service Contractors in Its Protections & Prohibitons Concerning Political Activity on Social Media

This Part of the Note brings together evidence that personal service contractors comprise a substantial portion of our federal workforce yet are not subject to the same legal permissions and prohibitions. Accordingly, this Part proposes an amendment to the Hatch Act to create equal coverage for all government workers performing their roles as public employees.

A.  Personal Service Contractors Are Already Unofficially Treated Like Federal Employees

Government supervisors and high-ranking officials have admitted the practical reality that personal service contractors have become seamlessly enveloped into the workforce at federal agencies.165 In addition to the unofficial ways personal service contractors operate within the federal workforce, personal service contractors have been treated like federal employees under employment discrimination guidance issued by the Equal Employment Opportunity Commission.166 Federal agencies are on the hook for joint employer liability with the contracting company where suits arise, but, to date, have not been viewed as the sole employer of a personal service contractor.167 Though personal service contractors act like federal employees, distinctions exist because personal service contractors are not subject to civil service laws and are hired through different mechanisms.168

B. The OSC Has Issued Non-Binding Guidance Recommending That Public Service Contractors Are to Be Treated Like Federal Employees Under the Hatch Act

In 2013, the OSC received an inquiry as to whether the Hatch Act’s protections and prohibitions extend to personal service contractors.169 In the advisory opinion, OSC acknowledged that personal service contractors retain positions indistinguishable from the traditional employer-employee relationship that federal government employees enjoy.170 The OSC applied the common law definition of employee to the statutory language of the Hatch Act, which requires an investigation into the control the employer has over the “physical performance” of the contractor.171 Ultimately, the question of whether a personal service contractor is an employee turns on the extent to which the government agency controls and supervises the “day-to-day operations of the individual.”172 The OSC then looked to the FAR language173 to examine the hallmark characteristics of a personal service contractor.174 The Office found that “the [g]overnment exercise[s] relatively continuous supervision and control over the individual performing the contract.”175 Accordingly, under OSC guidance, a personal service contractor would satisfy the common law test for federal employment and would be subject to the Hatch Act.176 Exceptions exist with regard to specific agencies and even specific roles within a particular agency, thus requiring a case-by-case application of the OSC’s guidance to personal service contractors.177

The advisory opinion on the application of the Hatch Act to personal service contractors is persuasive; however, the OSC lacks binding authority to amend or promulgate regulations on the Hatch Act.178 Rather, that responsibility is entrusted to the OPM.179 OSC’s advisory opinion stands merely as  a recommendation to the OSC or MSPB in reviewing and trying potential Hatch Act violations.180 However, the OSC advisory opinion was not released until the following year.181 To keep in line with the current reality of the federal workforce, the Hatch Act should be amended to include language that reflects the OSC’s guidance to ensure that personal service contractors receive the same protections and are subject to the same limitations as their federal employee coworkers. Congress should amend the statutory text as follows:

5 U.S.C. § 7322 - Definitions
For the purposes of this subchapter —

“employee” means any individual, other than the President and Vice President, employed or holding office in —
. . .
(C) A contract position solicited through a third-party recruiting agency where the federal government
(i)  Has the authority to dictate the physical performance of the contract;
(ii)  Manages the day-to-day operations of the individual; and
(iii)  Maintains a manner of administration during performance where contractor personnel are subject to the relatively continuous supervision and control of a [g]overnment officer or employee.

A parallel solution would be a proposal to the FAR Council that it issue a complementary regulation, ensuring personal service contractors are covered both through government contracting and through traditional public employment channels.

The proposed amended language of the statute furthers the intended goals of the Hatch Act because there exists no apparent difference between the ways federal employees and personal service contractors perform their duties. The government’s concerns about social media use by those working on their behalf, chief among them trust and bias, would be uniformly dealt with through this amended language.

VI.  Conclusion

This Note recognizes only part of a larger discussion on the role personal service contractors play in our federal workforce. There is an imperative belief that workers who perform the same duties should be treated equally. To require that certain employees suppress their political ideologies, while others with whom they work closely are free to politically engage, is inequitable. Our country’s ever-growing reliance on personal service contractors requires that we update our laws in response. Personal service contractors should be held to the same protections and prohibitions as federal employees and disciplined where appropriate. Any other application of the Act is unjust. Splintering the federal workforce based on the mechanism through which workers are hired creates confusion and potentially threatens the integrity and cohesion of the workforce.

The solution offered here would allow both personal service contractors and federal government employees to continue performing the same work, side by side, but now subject to equal protections and limitations. This is the solution advocated by the OSC, the office charged with overseeing investigations of alleged Hatch Act violations and passing them on to the MSPB. While the MSPB is not obligated to adopt the recommendations in advisory opinions of the OSC,182   increased reliance on personal service contractors in our federal workforce, often in powerful roles, would signify our appreciation for the work that they do and the risks that they assume. It would demonstrate further that this country holds them to the same standards as any other government employee. If agencies are not interested in extending these protections to personal service contractors, they are free to reject requests authorizing them in the workplace. As that has been difficult historically for public employers to do, the ethical approach to take would be to support this proposed amendment.

Would Juli Briskman still have suffered the same fate had these statutory protections been in place? It is difficult to tell without learning more about her job placement, her relationship with her supervisors, and the day-to-day management of her work. Undoubtedly, there are other government workers like Ms. Briskman, working alongside federal employees, who operate with- out a clear concept of how the Hatch Act affects them, or whether it applies to them at all. By including this proposed amendment to the language of    the Hatch Act, the federal government would be supporting the belief that all workers, employed on behalf of the government, are created equal with regards to expressing their political views.183

Entity:
Topic:
  1. See Pickering v. Board of Educ., 391 U.S. 563, 573–74 (1968).
  2. Cydney Henderson, Woman Who Flipped Off Trump’s Motorcade Gets Fired, USA Today (Nov. 6, 2017), https://www.usatoday.com/story/news/nation-now/2017/11/06/woman-who-flipped-off-trumps-motorcade-gets-fired/837313001.
  3. Id.
  4. Id.
  5. Complaint at 5, Briskman v. Akima, LLC, No. 2018-5335 (Va. Cir. filed Apr. 4, 2018). Briskman used the photo on her Facebook and Twitter pages but specifically avoided using the photo on her LinkedIn, which connects her to Akima.
  6. Akima, LLC, About Akima, http://www.akima.com/about/#about (last visited Apr. 4, 2018).
  7. Henderson, supra note 2.
  8. Eli Watkins & Sophie Tatum, Woman Who Flipped Off Trump Says She Was Fired for It, CNN Politics (Nov. 7, 2017), http://www.cnn.com/2017/11/06/politics/juli-briskman-motorcade-protest/index.html. Akima’s social media policy reads, in pertinent part, “While using social media sites and other social networking tools we must keep the best interests of the Company in mind.” Id. There is no mention of political activity with regard to social media. Akima Code of Conduct 18, available at http://www.akima.com/wp-content/uploads/2017/10/AkimaLLC-CodeofConduct.pdf. Ms. Briskman was responsible for covering Akima’s social media activities. During her work, she was made aware that Akima’s Director of Operations posted explicitly profane political language on his own Facebook page in response to a political post. Complaint, supra note 5, at 7.
  9. See infra Part II.C.
  10. Complaint, supra note 5, at 4. In her complaint, Briskman is categorized as an Akima employee. Her responsibilities included internal marketing and communications, external marketing, and managing Akima’s social media presence.
  11. See Donovan v. DialAmerica Mktg., Inc., 757 F.2d 1376, 1382 (3d Cir. 1985) (citing Donovan v. Sureway Cleaners, 656 F.2d 748, 754 (9th Cir. 1979)) (further distinguishing between employees and independent contractors under the FLSA).
  12. In the complaint filed by Ms. Briskman on April 4, 2018, Akima is described as a “shared services organization for its subsidiaries that obtain government contracts, by providing its subsidiaries with human resources, benefits management, payroll, marketing and communications, and other administrative services.” Complaint, supra note 5, at 4. As an example, the subsidiary companies Akima provides placement for includes AID, a subcontractor which provides analytic support for the Department of Defense, and Affigent, a contractor which provides the federal, state, and local governments with IT Service Management support. Akima: Our Companies, http://www.akima.com/#about (last visited Apr. 6, 2018); AID: About Aid, http://www.akimaintradata.com/about-aid/ (last visited Apr. 6, 2018); Affigent: Our Company, http://www.affigent.com/our-company (last visited Apr. 6, 2018).
  13. FAR 37.104(a) (2010).
  14. Id.
  15. Balancing “the interests of the [employee] in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public service it performs.” See 391 U.S. at 568.
  16. In June 2018, a Fairfax County Circuit Court judge ruled against Ms. Briskman on her claims for state and federal constitutional free speech violations. Erin Mulvaney, Marketing Analyst Who Gave Trump the Finger Loses Suit over Her Firing, Nat’l L. J. (June 29, 2018), https://www.law.com/nationallawjournal/2018/06/29/marketing-analyst-who-gave-trump-the-finger-loses-suit-over-her-firing.
  17. 5 U.S.C. §§ 7321–7326 (2017) (formally named An Act to Prevent Pernicious Political Activities).
  18. John A. Knapp & Tammera R. Diehm, The Hatch Act: It’s Not Just for Federal Employees Anymore (2009), available at https://apps.americanbar.org/buslaw/committees/CL121000pub/newsletter/200911/knapp.pdf.
  19. Nadeea Zakaria, #OutdatedProvisions: How the Hatch Act Should Be Applied to Social Media Activity, 25 Geo. J. Legal Ethics 841, 844 (2012).
  20. 5 U.S.C. § 7323(a).
  21. 5 U.S.C. § 7323(c).
  22. Zakaria, supra note 19, at 844.
  23. Shannon D. Azzaro, The Hatch Act Modernization Act: Putting the Government Back in Politics, 42 Fordham Urb. L. J. 781, 790 (2015).
  24. 5 U.S.C. § 7324.
  25. Id.
  26. 5 U.S.C. § 7322(1).
  27. See Steven L. Schooner & Collin D. Swan, Suing the Government as a ‘Joint Employer’—Evolving Pathologies of the Blended Workforce, 52 Gov’t Contractor ¶ 341, at 1, 2 (Oct. 2010).
  28. Id.
  29. Id.
  30. See U.S. Office of Special Counsel, Advisory Opinion on Personal Service Contractors (Aug. 8, 2013), available at https://osc.gov/Resources/FAQ%20Hatch%20Act%20Employees%20and%20Social%20Media%20(revised%2012-18-2015).pdf [hereinafter OSC Advisory Opinion].
  31. See Board of County Comm’rs v. Umbehr, 518 U.S. 668 (1996).
  32. Id. at 671.
  33. Id.
  34. Id.
  35. Id.
  36. Id.
  37. Id. at 672. The Court found that the fact-specific investigation in Pickering was transferrable to independent contractors contracting with the government.
  38. Pickering v. Board of Educ., 391 U.S. 563, 574 (1968).
  39. See id. at 571–72.
  40. Umbehr, 518 U.S. at 673. Government contractors enjoy free speech rights where the contractor and employing agency have a pre-existing relationship. The rights do not necessarily extend to “the possibility of suits by bidders or applicants for new government contracts who cannot rely on such a relationship.” Id. at 685.
  41. 518 U.S. 712 (1996).
  42. Id. at 725–26. For nearly thirty years, O’Hare had been retained on a list kept by the city of Northlake as a company available to carry out towing services. O’Hare remained on the list so long as the company provided “good service” as determined by the city’s mayor. When a new Mayor was elected, O’Hare’s officer declined to furnish his support as requested, instead favoring the opposing candidate. As a result, the newly elected Mayor removed O’Hare from the towing providers list. The Supreme Court held this unconstitutionally infringed on First Amendment rights, comparable to the Mayor engaging in criminal bribery, requiring O’Hare’s backing in exchange for continued placement on the towing services list.
  43. See Donovan v. DialAmerica Marketing, Inc., 757 F.2d 1376, 1382 (3d Cir. 1985).
  44. See Kathleen Clark, Ethics for an Outsourced Government 19 (Wash. U. Sch. of L., Paper No. 11-04-03, rev. drft. 2011), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1840629 (“In an earlier era, most of the government’s contracts were for products. Now most of the government’s contracts are for services.”).
  45. Id. at 29.
  46. See Board of County Comm’rs v. Umbehr, 518 U.S. 668, 685 (1996). The Umbehr Court specifically left open the question of whether First Amendment free speech rights should be extended to independent contractors in the bidding stage of a government contract. In the decade after Umbehr and O’Hare, a circuit split emerged between the Third Circuit, which held that free speech rights do not extend to independent contractors bidding for a government contract, and the Fifth Circuit, which has extended those rights to bidding contractors. Compare McClintock v. Eichelberger, 169 F.3d 812 (3d Cir. 1999) with Oscar Renda Contracting, Inc. v. Lubbock, 463 F.3d 378 (5th Cir. 2006).
  47. See Clark, supra note 44, at 19.
  48. The FAR encompasses the set of rules and statutes governing U.S. federal government procurement. FAR Part 14 covers sealed bidding procedures, and FAR Part 15 governs competitive negotiations. FAR 6.401 asserts that both procedures are valid mechanisms for procuring goods and services for the government.
  49. In 2015, the federal government entered into 3,856,354 contract actions. See Nat’l Contract Mgmt. Ass’n, 2016 Annual Review of Government Contracting 2, https://www.ncmahq.org/docs/default-document-library/pdfs/exec16---book---annual-review-of-government-contracting_lowres (last visited Feb. 3, 2018).
  50. See Michael K. Grimaldi, Abolishing the Prohibition on Personal Service Contracts, 38 J. Legis. 71, 82 (2012).
  51. See Nat’l Contract Mgmt. Ass’n, supra note 49, at 2.
  52. 5 U.S.C § 2102 (2018); see Lees v. Evans, 31 Fed. Appx. 680, 682 (Fed. Cir. 2002) (a civil service appointed employee is one who is “appointed to a civil service position by a designated official; engag[es] in the performance of a federal function; and [is] subject to the supervision of a named federal officer”) (citing Horner v. Acosta, 803 F.2d 687, 691 (Fed. Cir. 1986)).
  53. 5 U.S.C. § 3301 (2018).
  54. 5 U.S.C. § 3304(a)(1) (2018).
  55. 5 U.S.C. § 2302(c)(2) (2018).
  56. See infra Part IV.B.
  57. See Grimaldi, supra note 50, at 82 (citing Steven L. Schooner, Contractor Atrocities at Abu Ghraib: Compromised Accountability in a Streamlined, Outsourced Government, 16 Stan. L. & Pol’y Rev. 549, 559 (2005)).
  58. FAR 2.101.
  59. FAR 37.104(c).
  60. FAR 37.104(b); see also Collin D. Swan, Dead Letter Prohibitions and Policy Failures: Applying Government Ethics Standards to Personal Service Contractors, 80 Geo. Wash. L. Rev. 668, 677 (2012).
  61. See Clark, supra note 44, at 19.
  62. See id. at 21.
  63. See Swan, supra note 60, at 673.
  64. See id.
  65. See U.S. Gov’t Accountability Off., GAO-17-610, Improvements Needed in How Some Agencies Report Personal Service Contracts 3 (2017) [hereinafter GAO-17-610].
  66. Clark, supra note 44, at 18–19.
  67. See Thomas J. Laubacher, Simplifying Inherently Governmental Functions: Creating a Principled Approach from Its Ad Hoc Beginnings, 46 Pub. Cont. L.J. 791, 798 (2017).
  68. Id.
  69. Id.
  70. Id.
  71. Letter from Douglas W. Elmendorf, Cong. Budget Office, to Rep. Chris Van Hollen, Federal Contracts and the Contracted Workforce (Mar. 11, 2015), available at https://www.cbo.gov/sites/default/files/114th-congress-2015-2016/reports/49931-FederalContracts.pdf.
  72. Id.
  73. Id. at 5–6.
  74. Id. at 4.
  75. See Pickering v. Board of Educ., 391 U.S. 563, 565 (1968).
  76. Id.
  77. See id. at 568.
  78. See id. 570.
  79. See Pickering Balance Tips in Favor of Employee, 29 No. 8 McQuillin Mun. L. Rep. 5 (2011).
  80. Id.
  81. See Board of County Comm’rs v. Umbehr, 518 U.S. 668, 674 (1996) (“The government needs to be free to terminate both employees and contractor . . . to improve efficiency, efficacy, and responsiveness of service to the public, and to prevent the appearance of corruption. . . . [T]he threat of . . . retaliation for speech may chill speech on matters of public concern by those who, because of their dealings with the government, ‘are often in the best position to know what ails the agencies for which they work.’”) (citing Waters v. Churchill, 511 U.S. 661, 674 (1994)).
  82. See Pickering, 391 U.S. at 573–74 (finding that appellant’s comments opposing local Board of Education and the Superintendent did not compromise his ability to satisfactorily complete his job or work with his supervisors).
  83. See Grutzmacher v. Howard County, 851 F.3d 332, 347 (4th Cir. 2017).
  84. Id. at 345 (“Factors relevant to this inquiry include whether a public employee’s speech . . . (4) impeded on performance of the public employee’s duties; (5) interfered with the operation of the institution; (6) undermined the mission of the institution; (7) was communicated to the public or to coworkers in private; (8) conflicted with the responsibilities of the employee within the institution; and (9) abused the authority and public accountability that the employee’s role entailed.” (citing McVey v. Stacy, 157 F.3d 271, 278 (4th Cir. 1998)).
  85. Jenkins v. Medford, 119 F.3d 1156, 1162 (4th Cir. 1997).
  86. See Zakaria, supra note 19, at 843–44.
  87. Board of County Comm’rs v. Umbehr, 518 U.S. 668, 671 (1996).
  88. Andrew Perrin, Social Media Usage: 2005–2015 (2015), available at http://www.pewinternet.org/2015/10/08/social-networking-usage-2005-2015.
  89. Id.
  90. Lee Raine et al., Social Media and Political Engagement 2 (2012), available at http://www.pewinternet.org/2012/10/19/social-media-and-political-engagement.
  91. Perrin, supra note 88.
  92. Raine et al., supra note 90.
  93. Id.; Jeffrey Gottfried et al., The 2016 Presidential Campaign—A News Event That’s Hard to Miss (2016). A separate study found that fourteen percent of Americans received information about the 2016 presidential election through social media, the second highest source of information found. Significantly, social media was the highest rater source of information of the presidential election by the 18–29 age bracket.
  94. Raine et al., supra note 90.
  95. Id.
  96. Id.
  97. Juliet E. Carlisle & Robert C. Patton, Is Social Media Changing How We Understand Political Engagement? An Analysis of Facebook and the 2008 Presidential Election, 66 Political Research Quarterly 883, 891 (2013) (“[D]espite the enthusiasm surrounding Facebook, individuals in general engaged in limited political activity via Facebook during the 2008 presidential campaign cycle.”).
  98. Craig D. Singer, Conduct and Belief: Public Employees’ First Amendment Rights to Free Expression and Political Affiliation, 59 U. Chi. L. Rev. 897 (1992).
  99. Scott L. Bloch, The Judgment of History: Faction, Political Machines, and the Hatch Act, 7 U. Pa. J. Lab. & Emp. L. 225, 229 (2005) (“George Washington is said to have been concerned about the politicization of the civil service.”) (citing American Enterprise Institute Legislative Analyses, No. 20, 95th Congress, Hatch Act Revision 1 (1978)).
  100. Id. at 230.
  101. Id.
  102. Id. The Civil Service Commission preceded the Merit Systems Protection Board.
  103. Id.
  104. Id. at 231.
  105. 5 U.S.C. §§ 7323–7324.
  106. See U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 413 U.S. 548, 566 (1973).
  107. 5 U.S.C. § 7324(a).
  108. See Zakaria, supra note 19, at 844.
  109. 5 U.S.C. § 7323(c).
  110. “An employee described in paragraph (2) of this subsection may engage in political activity otherwise prohibited by subsection (a) if the costs associated with that political activity are not paid for by money derived from the Treasury of the United States.” 5 U.S.C. § 7324(b)(1); see also Press Release, Office of Special Counsel, OSC Obtains Discipline Against Three Federal Employees for Hatch Act Violations (July 13, 2016), availabe at https://osc.gov/News/pr16-18.pdf (“Federal employees are encouraged to participate in the political process, but they must do so on their own time, outside of the workplace, and in their personal capacity.”).
  111. See American Fed’n of Gov’t Employees v. O’Connor, 747 F.2d 748, 753 (D.C. Cir. 1984).
  112. OPM “possesses the authority to promulgate regulations explicating the Hatch Act as amended.” Memorandum from Office of Legal Counsel to Office of Special Counsel on Authority for Issuing Hatch Act Regulations 1 (Feb. 2, 1994), available at https://www.justice.gov/file/20406/download [hereinafter Memo on Authority for Issuing Hatch Act]; see also American Fed’n of Gov’t Employees, 747 F.2d at 753 (delineating roles of each agency under the Hatch Act).
  113. 5 U.S.C. § 1212(a)(2) (2012).
  114. 5 U.S.C. § 1204 (2012).
  115. 5 U.S.C. § 1103(a)(5) (2012).
  116. 5 U.S.C. § 7322(1).
  117. Id.
  118. Id.
  119. 5 U.S.C. § 7324(b)(2).
  120. 5 U.S.C. § 7326. Debarment from federal employment for a maximum of five years and civil penalties may not be in excess of $1,000.
  121. See generally The Hatch Act: Frequently Asked Questions on Federal Employees and the Use of Social Media, Office of Special Counsel (Dec. 18, 2015), https://osc.gov/Pages/The-Hatch-Act-Frequently-Asked-Questions-on-Federal-Employees-and-the-Use-of-Social-Media-and-Email.aspx.
  122. Id. at 1.
  123. Id. at 2.
  124. Id. at 5.
  125. Press Release, Office of Special Counsel, OSC Obtains Disciplinary Action in Two Hatch Cases (Apr. 29, 2014), available at https://osc.gov/News/pr14-09.pdf.
  126. Id.
  127. Id.
  128. See Lewis v. M.S.P.B., 594 Fed. App’x. 974, 980 (Fed. Cir. 2014).
  129. Press Release, Office of Special Counsel, OSC Obtains Discipline Against Three Federal Employees for Hatch Act Violations (July 13, 2016), available at https://osc.gov/News/pr16-18.pdf.
  130. Id.
  131. OSC File No. HA-17-2986 (June 5, 2017).
  132. Id.
  133. OSC File. No. HA-17-4341 (Sept. 28, 2017). Ambassador Haley was issued a warning letter for her activities. Id.
  134. Id.
  135. Press Release, Office of Special Counsel, OSC Issues Hatch Act Social Media Guidance in User-Friendly Format, Announces Postal Service Employee Hatch Act Violation over Social Media Use at Work (Feb. 13, 2018), available at https://osc.gov/News/pr14-09.pdf.
  136. See supra Part II.B.
  137. Lessons for the Future of Government Reform Before the House Government Affairs Committee, 113th Cong. (2013) (statement of Elaine Kamarack, Senior Fellow, Brookings Institution) (comparing the National Performance Review to “prior budget-related reforms”).
  138. Swan, supra note 60, at 680–81 (citing Schooner & Swan, supra note 27).
  139. Id. at 681.
  140. Clark, supra note 44, at 17–18.
  141. Id. at 20.
  142. Id.
  143. See Dana Priest & William M. Arkin, National Security, Inc., Wash. Post (June 10, 2010), http://projects.washingtonpost.com/top-secret-america/articles/national-security-inc.
  144. See id.
  145. See Clark, supra note 44, at 17.
  146. See Schooner & Swan, supras note 27, at 3.
  147. See id.
  148. See U.S. Gov’t Accountability Off., GAO-08-360, Army Case Study Delineates Concerns with Use of Contractors as Contract Specialists 1 9 (2008) [hereinafter GAO-08-360].
  149. See id. This GAO report refers to the workers in question as “contract specialists” but recognizes that these contractors “work side by side and perform the same functions as their government counterparts.” The report acknowledges that the FAR prohibits personal service contractors, and the agency admits that they had entered a grey area with the hired contractors. In response, they have taken remedial actions which attempt to distinguish contract specialists from personal service contractors, but their efforts were not exhaustive. For the purpose of this Note, the term contract specialist will be used in place of personal service contractor.
  150. Id. at 3.
  151. Id. at 5.
  152. Id.
  153. GAO 17-610, supra note 65, at 3.
  154. Id. at 1.
  155. Id. at 6–7.
  156. Id. at 8.
  157. Id. at 10–11. “[I]t is also possible that personal services contracts could be undercounted because nonpersonal services contracts could be administered in a manner that results in their actually being personal service contracts.” Id.
  158. See Priest & Arkin, supra note 143. Defense Secretary Robert Gates discussed his goal to reduce the number of defense contractors on the federal payroll but admitted that it was difficult to reduce those numbers because he was not fully aware of the workforce composition.
  159. See Grimaldi, supra note 50, at 82.
  160. See Schooner & Swan, supra note 27, at 2.
  161. Id. at 3.
  162. Grimaldi, supra note 50, at 73.
  163. Priest & Arkin, supra note 143. “The Post estimates that out of 854,000 people with top-secret clearances, 265,000 are contractors. There is no better example of the government dependency on [contractors] than at the CIA . . . [p]rivate contractors working for the CIA have recruited spies in Iraq, paid bribes for information in Afghanistan, and protected CIA directors visiting world capitals.” See id.
  164. Id.
  165. Id.
  166. Grimaldi, supra note 50, at 75; see also Schooner & Swan, supra note 27 at 3. Specifically, in King v. Dalton, 895 F. Supp. 831 (E.D. Va. 1995), the Navy was found not to be immune from status as a joint employer of a personal service contractor for employment discrimination liability.
  167. Schooner & Swan, supra note 27 at 4.
  168. See supra Part II.B.
  169. OSC Advisory Opinion, supra note 30 at 1.
  170. Id.
  171. Id. at 2; Lilly v. Fieldstone, 876 F.2d 857, 858 (10th Cir. 1989) (quoting Logue v. United States, 412 U.S. 521, 528 (1978)).
  172. Lilly, 876 F.2d at 858 (quoting Lurch v. United States, 719 F.2d 333, 337 (10th Cir. 1983)).
  173. FAR 37.104.
  174. OSC Advisory Opinion, supra note 30, at 2.
  175. Id.
  176. Id. at 2–3. The OSC is not the first government entity to issue such guidance. See, e.g., Equal Emp’t Opportunity Comm’n, No-915-002, Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (1997), available at 1997 WL 33159161, at *7.
  177. OSC Advisory Opinion, supra note 30, at 3.
  178. Memo on Authority for Issuing Hatch Act, supranote 112, at 3.
  179. See infra Part III.B.
  180. Hatch Act Modernization Act of 2012, Pub. L. No. 112-230, 126 Stat. 1616 (2013). The Hatch Act was amended in 2012, but the OSC advisory opinion was not released until the following year.
  181. OSC Advisory Opinion, supra note 30.
  182. See American Fed’n of Gov’t Employees v. O’Connor, 747 F.2d 748, 753 (D.C. Cir. 1984).
  183. Ms. Briskman filed her lawsuit against Akima on April 4, 2018, asserting two claims against her former employer. Her first claim is that her forcible resignation amounts to a wrongful termination in violation of public policy (freedom of speech without fear of government retaliation). Her second claim is for breach of contract as it relates to her severance agreement. Complaint, supra note 5, at 8–9. Ms. Briskman did not raise an argument under the Hatch Act.