Kevin Burke, the former incumbent mayor of Terre Haute Indiana, who recently lost his bid for re-election filed a petition to have the Indiana court throw out the result of the election and declare the runner up (himself) the winner.
This case relies on interesting blend of state and federal law, where the cause of action and the proposed remedy, (removal from office), is provided by state law, but the basic defect, (violation of the Hatch Act), is supplied by federal law.
Former mayor Kevin Burke claims that the winner of the November General election, challenger Duke Bennett, was ineligible to run for office under U.S.C. 1501 which prohibits “state or local officers or employees from being a candidate for elective office” and, U.S.C. 1502(a) which defines state or local employees as “an individual employed by a State or local agency whose principal employment is in connection with an activity that is financed in whole or part by loans or grants made by the United States or a Federal Agency…” U.S.C. 1501(4).
Burke’s challenge relies on the premise that the Hatch Act provides similar limitations to employees of certain non-profit corporations in addition to state, federal and local employees.
Indiana Code 3-12-8 Section 2 provides the cause of action, while Section 17 provides the remedy: "a contest shall be heard and determined by the court without a jury. If the judge rules that winning candidate is ineligible, the court shall declare as elected the qualified candidate that received the highest number of votes."
On December 21st, 2007, Vigo Circuit Court Judge Bolk ruled that while Bennett was subject to a federal law that limits political activity, state law did not prevent him from taking office as Burke's attorneys argued.
Judge Bolk allowed Bennett to take office because, in Bolk's opinion, Bennett was no longer in violation of the Hatch Act when he took office on January 1st. Burke filed an appeal of Bolk's decision with the Appeals Court, claiming that Bolk's decision to allow Bennett to take office creates a legal loophole that does not exist under Indiana Code.
Bolk's decision raises some interesting questions about the application of the law in regards to elections. Does the law provide a candidate who violates the Hatch Act a legal loophole to take office once the election is over? Bennett's attorneys argue that mayor Burke should have filed the Hatch Act Complaint before the election --in other words, it's alright to break the law, as long as you don't get caught before the election. (Perhaps we can view Bolk's decision as classic example of how two wrongs can make a right).
Meanwhile, Bennett has filed an appeal asking the Appeals Court to overturn the part of Bolk's ruling that states Bennett was a covered employee under the Hatch Act when he ran for office.
Duke Bennett worked as a Director of Operations for a private health care provider. But Burke is claiming that 42 U.S.C. 9851(a) applies and that even though the Hatch Act only applies to state and local government, some federal statutes governing the allocation of federal grant money include a clause that private entities who accept federal dollars are considered "state and local agencies" for the purposes of the Hatch Act’s limitations on political activity."
Bennett's former employer, the Hamilton Center, operates a Head Start program with federal funds. Burke’s attorneys argue that a portion of Bennett’s salary was paid with Head Start funds. Bennett’s attorneys argue that Bennett’s job only indirectly had contact with the Head Start program and that he reported to a different Executive Director.
42. U.S.C 9851(a) provides that “any agency which assumes responsibility for planning, developing, and coordinating Head Start programs and receives assistance under this subchapter shall be deemed to be a State or local agency.” The code in effect converts a private, non-profit health care facility into a State or local agency and may bar employees of the facility from seeking public office if the employee’s principal employment is in connection with an activity which is financed in whole or part by federal money."
Burke must prove that Bennett was covered by the Hatch Act before he can petition the Indiana court to remove Bennett from office. Jim Mitchell, a spokesman for the U.S. Office of Special Counsel, the federal agency that investigates and prosecutes complaints involving the Hatch Act, tells readers that the Hatch Act "has got a lot of ends and outs and that's why it takes some time for us to investigate the circumstances to find out what's really going on... It's not one of those three-paragraph laws." The OSC is actively investigating the allegations that Bennett may be a covered employee.
Here’s where it gets confusing – U.S.C. 1501(4) defines covered individuals as those employed by a covered agency “whose principal employment is in connection with an activity that is financed in whole or in part by loans or grants made by the United States or a Federal agency…” In other words, Burke can’t just claim that his opponent is barred from seeking public office just because he’s employed by a health care provider that receives Head Start federal funds. Burke’s attorneys must prove that Bennett’s principal employment is connected with activities funded by Head Start.
The burden of proof rests upon the ability of OSC or Burke’s attorneys to prove that Bennett carried out activities directly connected to Head Start or supervised individuals that were directly connected to the Head Start program.
In Williams v. U.S. Merit System, the Fourth Circuit opined that “an employee of a covered agency is subject to the Hatch Act if, as a normal and foreseeable incident to their principal position or job, he/she performed these duties in connection with an activity financed in whole or part by federal funds. The Act does not cover state or local employees whose connection with federally funded activities is merely a casual or accidental occurrence of employment, because such a de minimis connection does not justify application of the Act” (internal quotations omitted).
Lawyers for Burke said they will wait to comment on Bennett’s latest filing when they have a response prepared. The response is due around April 18, 2008. The appeal could take up to a year.
Timeline for Burke v. Bennett
November 6, 2007: Terre Haute Mayor Kevin Burke officially challenged the November 6th election results.
December 21, 2007: Judge David Bolk ruled that while Bennett was subject to federal law that limits political activity, state law did not prevent Bennett from taking office as Burke's attorneys claim.
February, 2008: Appeal filed with Appellate Court
April 18th, Burke response deadline
McEntee v. Merit Systems Protection Board: http://www.cafc.uscourts.gov/opinions/04-3066.pdf
Navigating the Hatch Act: http://www.napfe.com/HATCH.htm
Washington Post Article on Hatch Act resignation
The U.S. Office of Special Counsel is an independent investigative and prosecutorial agency. Among other functions, it investigates and prosecutes complaints alleging violations of the Hatch Act and provides advisory opinions regarding the Act’s requirements. For more information about OSC, please visit our web site at www.osc.gov or call 1-800-872-1855.