Don’t Bury the Hatch Act: Hidden Dangers for the Unwary and Politically Active Prosecutor’s Office Employee

By Scott J. Bloch

Good government is an empire of laws.
—John Adams, 1776, Thoughts on Government

There is an old adage, that “what you don’t know can’t hurt you.” Like many adages, this one may provide generally sound advice at just the wrong time. As an employee of a local prosecutor’s office, what you do not know about your obligations under the Hatch Act may cost you your job, and it may cost the prosecutor a substantial financial penalty.

The Hatch Act’s limits on partisan political activities of state and local employees1 apply to the many prosecutors’ offices that receive federal funds. Congress intended the act to ensure the efficient administration of the laws and to foster public perception of an impartial bureaucracy. Penalties for violating the Hatch Act include the removal of the employee or forfeiture of federal grants and loans in the amount of two years of the offending employees’ salary—a high cost in an era of severe government budget constraints.

The United States Office of Special Counsel (OSC), an independent federal agency, is charged with enforcing the Hatch Act, as well as enforcing whistleblower laws, prohibited personnel practices and reemployment rights of reservists in the federal workforce. OSC seeks to maintain and improve government ethics and efficiency through enforcement of these laws and protection of employee rights. In addition to this enforcement function, OSC has a hotline to provide advisory opinions on Hatch Act coverage and possible violations, and an interpretation of the implementing regulations.

This article reviews the impact of the Hatch Act on employees in prosecutors’ offices. Additional information about the Hatch Act is available at OSC’s Web site, www.osc.gov.

Specific Restrictions

Prohibited Activities
Covered employees may not be candidates for public office in a partisan election.

Employees whose principal employment duties are connected with a federal loan or grant cannot be candidates for partisan office. This restriction does not apply to individuals whose principal employment is an elective office, as is the case for some prosecutors. However, many employees of a prosecutor’s office are subject to this restriction. For example, in 1996, OSC issued an advisory opinion, explaining that an employee of a program at a DA’s office funded in part with a federal grant was covered by the act, and could not run for partisan office without resigning from her position or risking a funding penalty for her agency.

If any covered employee is a candidate on a ballot and chooses to run for election as a representative of, for instance, the Democratic or Republican Party, the election is considered to be partisan for purposes of the Hatch Act. State and local laws designating an election as nonpartisan create a rebuttable presumption that the Hatch Act permits candidacy by covered employees. Evidence that partisanship has entered a race, as through candidate solicitation or advertising the endorsement of a partisan political party, may transform an election into a partisan one.

Hatch Act restrictions apply to any act in furtherance of candidacy, including acts before a formal announcement. Canvassing for votes, circulating petitions for candidacy and soliciting funding are prohibited.

Covered employees may not use official authority or influence to interfere with or affect the results of an election or nomination.

The use of an official position to benefit or to oppose a candidate in a partisan campaign is prohibited. For example, a city employee is barred from asking subordinates to support or volunteer their services to a political party or candidate’s campaign. Employees are also barred from interfering with election results through actions such as closing polls early when an employee’s preferred candidate is in the lead, or using authority over promotions and advertising on city property in order to benefit a candidate for mayor.

Covered employees may not directly or indirectly coerce contributions from other covered employees in support of a political party or candidate.

Covered employees must refrain from soliciting covered co-workers for political donations. Supervisor-subordinate relationships have been held to be inherently coercive in the context of seeking political contributions. The law even forbids covered employees from advising other employees to make political contributions.

Permitted Activities

Covered state and local employees may

• run for public office in nonpartisan elections
• campaign for and hold office in political clubs and organizations
• actively campaign for candidates for public office in partisan and nonpartisan elections, for example, drafting and making speeches, writing letters, and soliciting votes
• contribute money to political organizations and attend political fundraising functions
• attend and participate in deliberations at political conventions
• work at polls on behalf of a candidate on election day
• participate in any activity not specifically prohibited by law or regulation

Who is covered?

The Hatch Act applies to all executive branch state and local employees who, as a normal and foreseeable incident of their principal positions or jobs, perform duties in connection with an activity financed in whole or in part by federal loans or grants. This definition encompasses many prosecutors’ offices. Among the law enforcement-related federal loans and grants to state and local agencies in fiscal year 2004, were $500 million in law enforcement terrorism prevention grants, $225 million in direct funding to cities, $60 million from Juvenile Accountability Incentive block grants, and $388 million in Violence Against Women Act grants.

A common misconception is that state and local employees must have discretionary authority over federal funds in order to be covered by the Hatch Act. Agencies and courts have repeatedly refused to embrace this construction of the statute, which requires disregarding its plain meaning.2 Employees remain covered by Hatch Act restrictions when on annual leave, sick leave, leave without pay, administrative leave or furlough.

One quarter of district attorneys have other employment. For purposes of the Hatch Act, “principal employment” is determined by reference to salary received and hours worked at various jobs.

History of the Hatch Act

Restrictions on the political activities of government employees to ensure effective governance go back to the beginning of United States history. According to an 1801 federal circular, President Thomas Jefferson observed, “with dissatisfaction officers of the government taking on various occasions active parts in the elections of public functionaries, whether of the general or state governments.” The document stressed that government officers retained their right to vote, but cautioned that they were expected not to “attempt to influence the votes of others, nor take any part in the business of electioneering, that being deemed inconsistent with the spirit of the constitution and [their] duties to it.”3

Curbing patronage in the civil service became a major political issue in the mid-nineteenth century. Spurred in part by the 1881 assassination of President Garfield by a disappointed office seeker, Congress passed the Pendleton Act in 1883 to create a merit-based federal workforce for the positions covered by the act. It helped put an end to the “spoils system,” in which government sinecures were awarded to political allies as part of the spoils of winning an election. The Pendleton Act provided that no federal employee should be coerced to contribute to a political fund or to provide any political service. The act authorized the president to issue rules in furtherance of the act and created the Civil Service Commission (CSC), predecessor to the Merit Systems Protection Board. President Theodore Roosevelt, who had previously served on the CSC, extended by Executive Order the ban on political activity from coercive situations to voluntarily taking an “active part in political management or in political campaigns.”4

In response to controversies over coercion of political donations from federal employees and the misuse of federal funds in the 1936 and 1938 campaigns, Congress passed the Hatch Act in 1939. Named for longtime civil service reform advocate Senator Carl Hatch of New Mexico, the act codified the ban on partisan political activity and applied it to nearly all executive branch employees.

The Hatch Act was amended in 1940, one year after its original passage, to cover state and local employees who work in connection with federal funds. The legislative history of the amendments indicates that such employees were not covered in the original act because Congress wanted to avoid infringing on state employment prerogatives. By the same token, Congress wanted to extend the act’s ethical standards to people who were “technically state employees from a legalistic standpoint but nevertheless are perhaps in a greater sense federal employees, for their employment could not be were it not for the aid given them from the Federal Treasury,” as Sen. Hatch explained on the Senate floor debates on the 1940 amendments.5 The law’s drafters settled on withholding federal funds as a remedy for violations if a state refused to remove an employee pursuant to a board order. This enforcement mechanism allowed Congress to leave the ultimate employment decision to the states, and to extend federal authority no further than federal money.

Congress amended the Hatch Act in 1974 to permit greater political activity by state and local employees. A similar amendment in 1993 extended this liberalization to most federal employees.

Why Have a Hatch Act?

The Hatch Act is intended to bring beneficial ethics protections rather than red tape to those it covers. In Civil Service Commission v. Letter Carriers,6 the Supreme Court, drawing in part from legislative history, offered a variety of rationales for the Hatch Act. Justice White wrote in his opinion for the Court that the act was intended to preserve a merit-based bureaucracy committed to “impartial execution of the laws.”7 Public confidence in government institutions and avoiding “a powerful, invincible, and perhaps corrupt political machine”8 were additional reasons endorsed by the Court. Justice White added that Congress intended to safeguard the rights of employees by ensuring that they can work “free from pressure and from express or tacit invitation to vote in a certain way or perform political chores.”9

Constitutionality

Over the last half century, some have raised constitutional objections to the Hatch Act under the First and Tenth Amendments; these challenges have been unsuccessful. In Oklahoma v. Civil Service Commission,10 the Supreme Court rejected Oklahoma’s argument that the Hatch Act’s restrictions on state and local employees infringed on state sovereignty in violation of the Tenth Amendment. “While the United States is not concerned with and has no power to regulate local political activities as such of state officials,” the Court wrote, “it does have power to fix the terms upon which its money allotments to states shall be disbursed.”11 In United Public Workers v. Mitchell12 and Letter Carriers, the Court upheld the Hatch Act as applied to federal employees against claims that they violated employees’ First Amendment rights. Many lower courts have refused to hold the prohibitions on partisan candidacy to be in violation of the First Amendment as applied.

Investigation and Prosecution

Most Hatch Act prosecutions at the state and local level are for violations of the ban on candidacies for partisan office. For example, in 2002, after a mail clerk in North Carolina running as a Democrat for the North Carolina State House of Representatives refused to withdraw her candidacy or resign her job despite numerous warnings, OSC brought charges and the board found her removal warranted. Similarly, after a New York community outreach coordinator remained a Republican candidate for county legislature despite a warning in 2000, the board granted OSC’s petition to order her removal.

Coercive use of office, while less common than unlawful candidacies, remains a target of Hatch Act investigations. In 1988, the board ordered the removal of three Akron (Ohio) Metropolitan Housing Authority employees for coercing their subordinates into buying and selling tickets for Republican fundraisers. The following year, the board approved an OSC recommendation that the director of the Niagara Frontier Transportation Authority and his co-conspirators should be removed from their posts for coercing employees to donate time and money to Democratic campaigns, even helping arrange a loan for one subordinate to make a $1000 donation to a Democratic group.

Procedure

The Office of Special Counsel was established in the Civil Service Reform Act of 1979, as the successor to the Civil Service Commission Office of General Counsel investigating Hatch Act violations. Initially an arm of the board, OSC became an independent agency in 1989.

Federal agencies involved in loaning or granting funds must report to OSC any activity of state and local officers that the agency has reason to believe violates the Hatch Act. Private individuals may also submit complaints about Hatch Act violations.

If an OSC investigation uncovers evidence of a violation of the law warranting prosecution, OSC files a written complaint for disciplinary action with the board. The employee is served with a copy of the complaint. The employee has the right to contest the charges, including the right to a hearing before the board.

OSC can bring an enforcement action whether or not the employee is aware of the restrictions. If a violation is not severe and the employee was unaware of the provisions, OSC can issue a letter to allow the employee to come into compliance. OSC can issue warning letters regarding past violations or cure letters regarding ongoing violations. If an employee disregards the letter, OSC will bring an enforcement action before the board.

Penalties for Violating the Hatch Act

If the board finds that an employee’s violation warrants dismissal from employment, the employing agency must either remove the employee or forfeit a portion of its federal assistance equal to two years salary of the employee. If the board finds the violation does not warrant the employee’s removal, no penalty is imposed.

Advisory Opinions

The best way to avoid penalties is to confirm compliance with the law with OSC before a violation occurs. OSC is authorized by statute and federal regulations to issue advisory opinions on whether the Hatch Act applies at all to a given employee, the extent of the restrictions at issue, and interpretation of regulations.

An employee can obtain an advisory opinion by contacting OSC at (800) 85-HATCH, by e-mail at hatchact@osc.gov, by fax at (202) 653-5151, or by mail at Office of Special Counsel, Hatch Act Unit, 1730 M Street NW, Suite 218, Washington, DC 20036-4505.

Conclusion

The Hatch Act promotes good government by preventing any partisan administration of laws or federally funded programs. In preventing the use of public positions for the benefit of a political machine, the act protects both the public and government employees while making bureaucracy more responsive and less self-serving. Serious enforcement is part of the reason that government service is no longer regarded as part of the spoils of political victory. As the election approaches, awareness of the Hatch Act’s provisions can keep employees of prosecutors’ offices from running afoul of the law.

Endnotes

1 5 USC §§ 1501–1508.

2 See 5 U.S.C. 1501(4), stating that individuals “employed by a State or local agency whose principal employment is in connection with an activity which is financed in whole or in part by loans or grants made by the United States or a Federal agency” are covered by the act.

3 James D. Richardson, A Compilation of the Messages and Papers of the Presidents, 1789-1897, at 98 (1898).

4 Exec. Order No. 642, reprinted in 1 Presidential Executive Orders 61 (1944).

5 86 Cong. Rec. 2338.

6 413 U.S. 548 (1973)

7 Id. at 566.

8 Id.

9 Id.

10 330 U.S. 127 (1947).

11 Id. at 143.

12 330 U.S. 75 (1947).