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What Does “Personal Capacity” Mean Under the Hatch Act? The 2026 Test Cases

Many of the senior Trump officials named in Hatch Act complaints this fall have answered with the same defense: the appearance was personal, not official. On Oct. 28, The New York Times reported that “at least nine of 15 cabinet secretaries and several other senior Trump deputies have been formally accused of Hatch Act violations” in recent months, and the agencies that answered mostly said their officials campaigned as private citizens. This explainer walks through the personal capacity Hatch Act rule as the U.S. Office of Special Counsel (OSC), the agency that enforces the law, has written it, and how this year’s complaints test it.

Where it stands: As of Oct. 28, no OSC, Merit Systems Protection Board or court finding had been made public on any 2026 complaint against a senior official. OSC closed one, a Kentucky complaint against Defense Secretary Pete Hegseth, after deciding he appeared as a private citizen. Every other complaint discussed below is pending. The White House and agencies reject the accusations; according to the Times, their representatives contend “that the complaints are politically motivated to hurt Republicans and that officials’ activities comply with the law.” An OSC spokeswoman declined to comment to the Times.

What is the personal capacity Hatch Act rule?

The rule is OSC’s way of describing how a senior political appointee may campaign without breaking the 1939 law: as an individual, with no official title, and at no cost to taxpayers. The phrase does not appear in the statute itself. It grows out of two provisions read together.

The first is a broad ban. Under 5 U.S.C. 7323(a)(1), an employee may not “use his official authority or influence for the purpose of interfering with or affecting the result of an election.” The regulation that implements it, 5 CFR 734.302, lists the use of an official title during political activity as one way of misusing that authority.

The second is a carve-out. Section 7324(b) lets Senate-confirmed officials who set national policy do political work that ordinary employees cannot, including while on duty or in a federal building, so long as the costs are not paid by the Treasury. But OSC’s guidance says such an official “remains subject to all the other prohibitions of the Hatch Act,” including the ban on using official authority. In a 2012 report on Health and Human Services Secretary Kathleen Sebelius, OSC put the rule plainly: senior appointees may campaign, but “they must do so in their personal capacities” and without Treasury money.

Can a cabinet secretary use the title “Secretary” at a campaign event?

No. OSC’s published answer is direct: “a Cabinet secretary may not use the official title” of secretary while doing political work, and a campaign speech is its example. A general honorific is allowed. OSC says a secretary may use a form of address such as “The Honorable,” because it does not identify the office.

The same logic runs through OSC’s guidance for other settings. For a fundraiser where a federal employee is a guest speaker, OSC says invitations “may not include the employee’s official title,” and the employee must appear “only in his or her personal capacity” and must not ask for money.

Introductions are the gray zone in 2026. The Hatch Act binds the official, not the president, who is not covered. A complaint over an Oct. 13 rally in Wasilla, Alaska, argues that when someone else introduces a secretary by title, the secretary must correct that impression. OSC has not ruled on that theory.

Does a personal capacity disclaimer settle it?

Not according to OSC’s past findings, which look at what an official said after the disclaimer. Three cases set the pattern.

In September 2012, OSC concluded that Sebelius had attended a Human Rights Campaign gala in her official role and found that “because she made this endorsement in her official capacity as HHS Secretary, she violated the Hatch Act.” HHS later reclassified the trip as political, and the Democratic National Committee repaid the government, The Hill reported. Sebelius told OSC any violation was “technical and minor.”

In 2016, OSC found that HUD Secretary Julián Castro “impermissibly mixed his personal political views with official agency business” during a Yahoo News interview, despite his effort to flag certain answers as personal. Government Executive summarized OSC’s view that the disclaimer “could not negate the fact that he was appearing in his official capacity” for the rest of the interview. Castro sent OSC a letter acknowledging error.

In its 2021 report on the 2020 campaign, OSC concluded that Secretary of State Mike Pompeo had violated the Act “in two instances.” For the convention speech, OSC noted that Pompeo had tried to appear personally by introducing himself as a husband and father “rather than as Secretary of State,” but said the speech was still a misuse “because he discussed the work of his agency while engaging in political activity.” OSC added that it has long told cabinet officials speaking personally that “they must avoid talking about the work of their agencies.” Because Pompeo and the others had left office, OSC said discipline was “no longer possible.”

How are the 2026 complaints testing the line?

This year’s complaints turn on the same two questions: was the official presented as an official, and did the official discuss the agency’s work? All 2026 entries below are allegations unless marked closed.

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Case The capacity question Status
Sebelius, 2012 Partisan remark at a gala attended as HHS secretary OSC finding; no discipline reported
Castro, 2016 Interview disclaimer did not make the whole interview personal OSC finding; he acknowledged error
Pompeo, 2020 Introduced himself as a husband and father, then discussed State’s work OSC finding in 2021; left office
Hegseth, Kentucky No title used, disclaimer given Closed by OSC; filer contesting, per the Times
Hegseth, Iowa Disclaimer given, but spoke of “my department” Complaint pending
Burgum, Lutnick, Carr Introduced by title; Carr said he spoke personally Complaint pending
Duffy Complaint says he discussed department business Complaint pending

Hegseth, Kentucky and Iowa. The Steady State, whose members served in national security, intelligence and military posts, filed both complaints. OSC closed the Kentucky one “the next day,” according to The Gazette, concluding he had appeared personally because Hegseth “neither used his official title nor referred to the Department of War” and had said he was speaking as a private citizen. The Times reported the group is challenging the closure; other outlets had not independently reported that challenge as of Oct. 28. The Iowa complaint concerns an Aug. 17 fundraiser for Rep. Zach Nunn, where Hegseth told the crowd that “according to the lawyers, I’m only here in a personal capacity today” but also said “the biggest job I have is to ensure that my department is properly funded.” In a statement quoted by the Times, Pentagon spokesman Sean Parnell said Hegseth’s appearances were “thoroughly vetted and cleared by lawyers.” For the full timeline, see our Hegseth complaints explainer.

Alaska rally. Democracy Defenders Fund (DDF) and Reporters Without Borders allege that President Trump called Interior Secretary Doug Burgum and Commerce Secretary Howard Lutnick to the stage by their departments and that “neither Secretary Burgum nor Secretary Lutnick stated that they were speaking in their personal capacities.” They also argue that Federal Communications Commission Chairman Brendan Carr said he was speaking personally but then discussed pending FCC work. Interior, per the Times, said Burgum appeared personally and called the complaint baseless and partisan; neither Commerce nor the FCC replied, the paper said. Details are in our Alaska rally complaint report.

Duffy. DDF accuses Transportation Secretary Sean Duffy of discussing department business at an August super PAC event in Michigan. A Department of Transportation spokesperson called the complaint “another baseless political attack” and said Duffy took part personally, consistent with practice for presidential appointees, Government Executive reported. See our Duffy complaint report.

Who decides whether an appearance was personal or official?

OSC investigates and decides whether to pursue a complaint, but for Senate-confirmed officials it cannot impose a penalty. Under 5 U.S.C. 1215(b), its findings go to the president. The 2021 report described the limit in its own words: for those officials, “OSC may only submit a report to the president.” Whether to discipline is then the president’s call alone. Our question-and-answer guide on whether cabinet secretaries can campaign covers the rest of the rules.

As of Oct. 28, six days before the Nov. 3 midterm election, OSC had not publicly resolved any pending 2026 complaint against a cabinet-level official.

Frequently Asked Questions

What does personal capacity mean under the Hatch Act?

It means a federal official takes part in politics as a private individual rather than as a government officer. OSC guidance says the official may not use an official title, may not lean on the agency’s work, and, for Senate-confirmed officials, the government may not bear the cost unless it is reimbursed.

Can a cabinet secretary campaign for a candidate?

Yes. Senate-confirmed policy officials may engage in partisan political activity, even during working hours, if taxpayers do not pay for it. They remain barred from using their official authority or title to affect an election, and from soliciting political contributions.

Does a disclaimer protect an official from a Hatch Act complaint?

Not by itself. OSC has treated a disclaimer as one factor. In 2016 it found that HUD Secretary Julian Castro’s disclaimer did not cover the rest of an official interview, while in 2026 it closed a Kentucky complaint against Pete Hegseth partly because he gave one and did not use his title.

Has any 2026 personal capacity complaint been decided against an official?

No. As of October 28, no OSC, Merit Systems Protection Board or court finding had been made public on any 2026 complaint against a senior official. OSC closed one Kentucky complaint against Hegseth; the others named here are pending.

Who decides whether a cabinet official crossed the line?

OSC investigates. For Senate-confirmed officials it can only send its findings to the president, who decides whether to impose discipline.

Sources


This article is news reporting and analysis based on the public sources listed above, as they stood on the dates shown. Where officials, lawmakers or analysts disagree, including on whether an action is lawful, their positions are attributed to them; Donald Trump Class Action is not a court and nothing here is legal advice. Facts in a developing story can change.

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