Employees of private nonprofit organizations are covered by the Hatch Act only if the statute through which the organization receives its federal funds contains language which states that the organization shall be considered to be a state or local agency for purposes of the Hatch Act, e.g., Headstart and Community Service Block Grant statutes.
An employee’s conduct is also subject to the laws of the state and the regulations of the employing agency. Additionally, employees should be aware that the prohibitions of the Hatch Act are not affected by state or local laws."
Enclosed is a list of regulated activities for state and local employees covered under the Hatch Act. Please note that the U.S. Office of Special Counsel will review individual situations on a case by case basis. If you have concerns about your eligibility to run for public office please call (202) 254-3650 or (800) 854-2824. Request for Hatch Act Advisory Opinions only may be made at firstname.lastname@example.org
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
contribute money to political organizations and attend political fundraising functions
Covered state and local employees may not-
be candidates for public office in a partisan election
use official authority or influence to interfere with or affect the results of an election or nomination
directly or indirectly coerce contributions from subordinates in support of a political party or candidate
Penalties for Violating the Hatch Act
If the Merit Systems Protection Board finds that the violation warrants dismissal from employment, the employing agency must either remove the employee or forfeit a portion of the 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.
The Hatch Act for State and Local Employees: http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t05t08+156+0++(0
How complaints are processed: http://www.osc.gov/documents/pubs/osc53.pdf
Disclosure of information: http://www.osc.gov/documents/pubs/osc49.pdf
What to expect if a complaint is referred for further investigation: http://www.osc.gov/documents/pubs/osc54.pdf
File a complaint on line: https://www.osc.gov/efile/dsp_login.asp
In addition, the U.S. Office of Special Counsel prepares advisories for federal, state and local employees covered by the Hatch Act to assist candidates with complying with the law. I've included three letters, (personal information redacted) for your perusal.
Advisories for State and Local Employees
When a "Non-partisan" election becomes a "Partisan" election
January 16, 2002
Re: OSC File No. AD-01-0064
Dear Mr. XXXXX:
This letter is in response to your request for an advisory opinion concerning the Hatch Act. Please accept our apology for the delay in responding to your request. The Office of Special Counsel has received a large number of requests this past year, and we re handling them as quickly as possible.
As to the issues you present, first you ask whether an election is partisan if political party affiliation appears on an election ballot next to the candidates’ names. For purposes of the Hatch Act, an election is deemed partisan if political party designations appear on a ballot next to candidates’ names. Special Counsel v. Mahnke, 54 M.S.P.R. 13, 16 (1992).
As to your second issue, you indicate that the Chesapeake City Charter states"Mayor and City Council elections shall be nonpartisan." Specifically, you ask whether the Hatch Act was violated if federal employees in the May 2000 election for City Council promoted their candidacies with advertisements and billboards entitled "Vote Republican."
Generally, the Hatch Act prohibits federal employees of the executive branch of government from running for public office in partisan elections. 5 U.S.C. § 7323(a)(3). However, the Hatch Act does not prohibit covered employees from being candidates innonpartisan elections. A nonpartisan election is one in which none of the candidates is nominated or elected as representing a party any of whose candidates for Presidential elector received votes in the last preceding election at which Presidential electors were selected. 5 U.S.C. §§ 1503 and 7322(2).
Usually, a nonpartisan election is so designated by state or local laws. Such state and local laws, however, create only a rebuttable presumption that an election is nonpartisan. See Special Counsel v. Yoho, 15 M.S.P.R. 409, 413 (1983), overruled on other grounds, Special Counsel v. Purnell, 37 M.S.P.R. 184 (1988). Evidence showing that partisan politics actually enter the campaigns of the candidates may rebut this presumption. See In re Broering, 1 P.A.R. 778, 779 (1955). For example, if a candidate solicts or advertises the endorsement of a partisan political party or uses a political party's resources to further his or her campaign, these actions may transform a nonpartisan election into a partisan one.
Therefore, assuming that the federal employees you inquired about engaged in activities that inserted partisan politics into the election, it is possible that the Hatch Act was violated. If you wish our office to investigate this matter, please submit a written complaint. If you have additional questions concerning this matter, I can be reached at (202) 653-7143.
Attorney Hatch Act Unit
Federal Highway Tax User Funds:
February 28, 2007
XX XXXX XXXX
VIA E-MAIL: xxxxxxxxxxx
Re: OSC File No. AD-06-xxxx
Dear Xx Xxxxxxx:
This letter is in response to your request for an advisory opinion concerning the Hatch Act. The Office of Special Counsel (OSC) is authorized pursuant to 5 U.S.C. § 1212(f) to issue opinions under the Act. Specifically, you ask whether funds from the Federal Highway User Tax Fund constitute a “loan or grant” for purposes of the Hatch Act. We reviewed and researched this issue, and as explained below, we believe such funding is a grant for purposes of the Hatch Act.
The Hatch Act, 5 U.S.C. §§ 1501-1508, restricts the political activity of individuals
principally employed by state, county or municipal executive agencies in connection with programs financed in whole or in part by loans or grants made by the United States or a federal agency. Accordingly, one of the initial questions in determining whether a state or local employee is covered by the Hatch Act is whether the federal funding at issue is a “loan or grant.”
You have raised such a question in regard to Highway Trust Fund (HTF) funding.1
Because none of the HTF funds received by the states is to be repaid to the federal
government, the money is not a “loan” for purposes of the Hatch Act. In re Palmer, 2 P.A.R. 590, 591 (1959), remanded, Palmer v. United States Civil Service Commission, 191 F. Supp. 495, 537 (S.D. Ill. 1961), rev’d, 297 F.2d 450 (7th Cir. 1962), cert. denied, 369 U.S. 849 (1962).
The Hatch Act does not define the term “grant.” Absent a definition in the legislative
enactment, all words must be given their accepted, understood meaning. Palestine Info. Office v. Schultz, 853 F.2d 932, 938 (D.C. Cir. 1988). “Grant” has been defined as “to bestow or confer, with or without compensation, a gift or bestowal by one having control or authority over it, as of (continued on page 2)
1 We were unable to find any information regarding the Highway User Tax Fund, to which you refer in your request. However, we believe the Highway Trust Fund is the actual name of the funding to which you inquire.
The Highway Trust Fund (HTF) was created by the Highway Revenue Act of 1956 (Pub. L. 84-627) primarily to ensure a dependable source of financing for the National System of Interstate and Defense Highways and also as the source of funding for the remainder of the Federal-Aid Highway Program. The Highway Revenue Act provided that revenues from certain highway-user taxes would be credited to the HTF to finance a greatly expanded highway program enacted in the Federal-Aid Highway Act of 1956.
land or money.” Black’s Law Dictionary 699 (6th Ed. 1996) (citing Palmer, 191 F. Supp. at 537).2 Hence, the term “grant” is capable of broad meaning.
An expansive definition of “grant” is consistent with the legislative history of the Hatch Act. Senator Hatch, discussing the application of the Act to state and local employees, explained that the purpose is to cover “employees in the states whose employment is made possible by the use of Federal funds or appropriation from the Federal Treasury.” Cong. Rec. 2338, 76th Cong., 3rd Sess. (March 5, 1940). The Senate Report on S. 3046, which became the Hatch Act, stated that the prohibition applies to “any officer or employee of any State or local agency, who exercises any function in connection with any activity which is financed in whole or in part by
funds of the United States.” S. Rep. No. 1236, 76th Cong., 3rd Sess. (1940) (emphasis added).
Further, caselaw supports an inclusive definition of “grant.” See In re Palmer, 2 P.A.R. 590 (1959), remanded, Palmer v. United States Civil Serv. Comm’n, 191 F. Supp. 495 (S.D. Ill. 1961), rev’d, 297 F.2d 450 (7th Cir. 1962), cert denied, 369 U.S. 849 (1962) (Seventh Circuit accepting without analysis the conclusions of the Civil Service Commission and the District Court that the term “grant” is broad enough to include federal reimbursements to the state in accordance with the terms of cooperative contracts); Engelhardt v. United States Civil Service
Commission, 197 F. Supp. 806, 811 (M.D. Ala. 1961), aff’d, 304 F.2d 882 (5th Cir. 1962) (funds paid by the Federal Government under a contractual obligation for the purpose of highway construction and maintenance projects are “loans or grants” under the Hatch Act); In re Normandin, 2 P.A.R. 422, 424 (1952) (lease or demise of property from Federal Government to agency constitutes a “loan or grant” as does an advance or conveyance of money).
With HTF funding, the federal government gives money to the states for the purpose of supporting highway, highway and motor carrier safety, and transit programs. An appropriations act from Congress is necessary to release HTF funds. There is nothing about HTF funding that suggests it is anything but a grant. We understand that HTF funding may come in the form of a reimbursement to the states for the federal share of project costs. This does not change the fact that the funding is a grant. “The Civil Service Commission determined more than fifty years ago that federal payments made to states in the form of reimbursements to fund highway construction costs constituted funding by ‘grants or loans’ within the meaning of the Hatch Act.” Special Counsel v. Alexander, 71 M.S.P.R. 636, 646 (1996) (citing In re Slaymaker, 2 P.A.R. 56, 57 (1943)), aff’d, Alexander v. M.S.P.B., 165 F.3d 474 (6th Cir. 1999).
In addition, that HTF funding is derived from federal excise taxes on highway motor fuel and truck related taxes, rather than from income taxes, does not change the fact that it is a grant. The federal funds at issue in Palmer, which were considered grants for purposes of the (continued on page 3).
2 The American Heritage Dictionary of the English Language, Fourth Edition defines “grant” as “a giving of funds for a specific purpose.”
Hatch Act, came from revenues from federal taxes on firearms, shells and cartridges, and from federal taxes on fishing rods, creels, reels, artificial lures, baits, and flies.
Therefore, based on the preceding, we believe that funding from the HTF is a federal grant for purposes of the Hatch Act. Please contact me at (202) 254-3650 if you have any additional questions regarding this matter.
Erica N. Stern
Hatch Act Unit
First Assistant District Attorney Appointment
June 21, 2007
Xxx Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx Xxxxx
Xx Xxxxx xxxxxx
Xxxxxxx, XX xxxxxx
Re: OSC File No. AD-07-xxxx
This letter is in response to your request for an advisory opinion concerning the Hatch Act. The Office of Special Counsel (OSC) is authorized pursuant to 5 U.S.C. § 1212(f) to issue opinions under the Act. Specifically, you ask whether Xxxxxx Xxxxx would be covered by the provisions of the Hatch Act if you appoint him to the position of First Assistant District Attorney in the Xxxxxx County District Attorney’s Office (XXDA).1 You explained that Xx Xxxxx currently is a candidate in the partisan election for District Attorney. We reviewed this matter, and as explained below, we believe that Xx Xxxxxxx would be covered by the Hatch Act if he is appointed to the position of First Assistant District Attorney, and thus, his current candidacy would violate the Act.
Persons covered by the Hatch Act, 5 U.S.C. §§ 1501-1508, are subject to certain
protections and restrictions with respect to their political activity. Thus, under section 1502, covered employees are protected from being coerced into political activity. On the other hand, the Act prohibits such employees from, among other things, being candidates for public office in partisan elections, i.e., elections in which any candidate represents, for example, the Republican or Democratic Party. 5 U.S.C. § 1502(a)(3).
Covered employees are those whose principal employment is with a state, county or municipal executive agency, and whose job duties are “in connection with” programs financed in whole or in part by loans or grants made by the United States or an agency thereof. 5 U.S.C.§ 1501(4). Employees are subject to the Act if, as a normal and foreseeable incident of their principal employment, they perform duties in connection with the federally financed activities.
In re Hutchins, 2 P.A.R. 160, 164 (1944); Special Counsel v. Gallagher, 44 M.S.P.R. 57 (1990). Coverage is not dependent on the source of an employee’s salary, nor is it dependent upon whether the employee actually administers the funds or has policy duties with respect to them. Special Counsel v. Williams, 56 M.S.P.R. 277, 283-84 (1993), aff’d, Williams v. M.S.P.B., 55 F.3d 917 (4th Cir. 1995), cert. denied, 516 U.S. 1071 (1996) (unreported decision).
You explained that XXDA receives federal grant funding for four specific programs:
XXXX Xxxxxxxx to reimburse the salary of an Assistant District Attorney who is cross- (continued on page 2)
1 Xx Xxxxxx currently is employed as an Assistant District Attorney in the Xxxxx Xxxxxx Unit of the XXDA. OSC recently has determined that he is not covered by the provisions of the Hatch Act in this position.
designated as a Special Assistant United States Attorney (SAUSA); expenses related to the Domestic Violence Unit; expenses related to the Victim/Witness Unit; and funding for a Xxxx Xxxx Xxxxx program.
According to the XXDA Regulation and Policy Manual, the First Assistant District
Attorney acts in the place of the District Attorney when he is unavailable or when the District Attorney delegates such authority. The manual also states that the First Assistant District Attorney assists and advises the District Attorney in carrying out his responsibilities. You explained that, in your absence, the First Assistant District Attorney is in charge of the XXDA and all of its employees. You also explained that the First Assistant District Attorney assists and advises you when strategizing on how to proceed in criminal investigations or prosecutions.
We understand that the First Assistant District Attorney has no ability to control how federal funding is spent and no supervisory, managerial or operational responsibility over any federal funding coming into the XXDA. However, coverage under the Hatch Act is not dependent on an employee having these kinds of responsibilities. As the chief law enforcement officer for Xxxxxx County, the District Attorney has oversight over all the divisions of XXDA.2 Thus, because XXDA has four programs receiving federal grant funding, the District Attorney has duties in connection with federally funded activities. Because the First Assistant District Attorney is tasked with assisting and advising the District Attorney in carrying out his responsibilities and acting in the District Attorney’s absence, it necessarily follows that the First Assistant District Attorney also has duties in connection with these federally funded activities.
See Special Counsel v. Williams, 56 M.S.P.R. 277, 283-84 (1993), aff’d, Williams v. M.S.P.B., 55 F.3d 917 (4th Cir. 1995), cert. denied, 516 U.S. 1071 (1996) (unreported decision).
Accordingly, we believe that Xx Xxxxx would be covered by the provisions of the Hatch Act if he is appointed to the position of First Assistant District Attorney in the XXDA. Therefore, the Hatch Act would prohibit him from being a candidate in a partisan election, and his current candidacy for District Attorney would be in violation of the Act. Please contact me at (202) 254-3650 if you have any questions regarding this matter.
2 See XXXXX County Office of the District Attorney website, http://www.xxxxxxxxx.xxx/.
Erica Stern Hamrick
Hatch Act Unit
File a complaint on line: https://www.osc.gov/efile/dsp_login.asp
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