Sunday, November 9, 2008

Ignorance runs rampant in media coverage of Mayor Pike's Hatch Act Violation

What are the facts surrounding the U.S. Office of Special Counsel's finding that Mayor Dan Pike violated the Hatch Act?

Prohibited Activities (From Hatch Act website).

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.

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.

Rumors to be debunked

1. Dan McShane's endorsement by the Democratic Party is the reason why Mr. Pike was found guilty.

Fact: Wrong. Dan McShane, a private business owner, and the other primary candidates for mayor were free to solicit the endorsement of the Democratic or Republican parties. McShane, Fleetwood, Gorman, Ryan, Keenan and the other candidates for mayor were not covered Hatch Act employees during the 2007 election.

Fact: Dan Pike, a former covered Hatch Act employee, was prohibited by law from seeking the endorsement of a political party. One would think a "Harvard graduate" would be aware of the Hatch Act. Nevertheless, Mayor Pike appears to be as dumb as a fence post when it comes to researching, reading or interpreting state or federal campaign laws. (I'm really, really smart, except when it comes to campaign laws). Yeah, we get it...

2. Tim Paxton's complaint did not contain an allegation regarding Mr. Pike's campaign going from nonpartisan to partisan.

Fact: Mr. Paxton's original complaint did list the Democratic party's endorsement of Mr. Pike on June 13, 2007 as an alleged violation. It was one of several allegations listed on the form.

Fact: According to federal law, Mr. Pike's campaign was illegal from June 13, 2007 on. In other words, Mr. Pike was not eligible to run in the primary or the general election. Mr. Pike's election was illegal. Now, it's up to the OSC or a court to determine if Mr. Pike willfully and knowingly violated the Act.

3. The Hatch Act is an obscure and unknown law.

Fact: The Hatch Act has been aggressively enforced by the U.S. Justice Department for over 60 years.

4. The endorsement issue is obscure and unknown.

Fact: a number of covered Hatch Act employees have run afoul of the Hatch Act when a nonpartisan race becomes partisan. It does not take an endorsement to trigger Hatch Act enforcement. Previously, Mike McEntee, an air traffic controller was disciplined for alluding that he adhered to Republican principles during a mayoral campaign in the southwest. He did not actually receive the endorsement of the Republican party.

5. the Hatch Act violation is a "technicality" and is not important to the outcome of the election.

Fact: as explained earlier, an employee covered by the Hatch Act may not be a candidate for public office in a partisan election, i.e., an office for which any candidate is to be nominated or elected as representing, for example, the Republican or Democratic party.

What does this mean? It means Dan Pike's name should not have been on the primary or general ballot. One of the other candidates from the primary, (someone who was running a legal campaign, should have moved forward to run in the general against Dan McShane - someone other than Dan Pike).

Fact: The Indiana Court of Appeals recently heard arguments regarding a similar situation in Terre Haute Indiana. The challenger, Kevin Burke, a covered Hatch Act employee, won the 2007 mayor's election. Duke Bennett, the former incumbent mayor, is suing to remove Burke from office because Burke ran an illegal campaign and won the seat illegally.

Don't let the media and Mayor Pike hoodwink you. This is a big deal.

Fact: Mayor Pike won his election -- illegally.

Options: 1) If the OSC or courts find Pike knowingly and willfully violated the Act, they could fine him, SCOG, or, as a last resort, remove him from office. 2) Or, any one of the displaced primary candidates for mayor who ran a legal campaign can file a petition in court to have Pike removed from office. (They don't even have to wait - OSC has already determined Pike ran an illegal campaign). 3) Or, any citizen who feels they were harmed by Mayor Pike's illegal campaign could file a suit in court or initiate a recall election. 4) Or, the voters could decide to allow the lawbreaker to stay in office - even though he ran an illegal campaign. (most likely scenario). Bellinghamsters don't care if elected officials break the law. In fact, I think they actually prefer Tammany Hall politics to something more ethical.

Did Dan Pike knowingly/willfully violate the law? Well, if anyone is interested in tracking that information down, I'll be happy to provide you with a list of items (public disclosure request) that will assist you in your efforts to gather the evidence. (It's not that much work).

Meanwhile, Mr. Paxton is working hard to ensure that local voters and law abiding candidates are never taken advantage of like this again.

Thank you, Tim Paxton, for all of your efforts to clean up local politics.

Earth to Ken Mann - you made a fool out of yourself last Friday on P.M. Bellingham. For the record, Professor Donovan filed two complaints in 2007: the Federal Election Commission complaint regarding foreign contributions (which are a violation of federal campaign finance laws) and the Realtor contribution/in-kind expenditure complaint. I filed a PDC contribution/expenditure complaint in 2007, and Tim Paxton filed two campaign "ethics" complaints. One with the PDC for the alleged illegal use of public facilities and one with the U.S. Office of Special Counsel (the Hatch Act complaint).

Sam Taylor, from the Bellingham Herald has a call in to the Office of Special Counsel to verify the facts. I expect that he will be publishing updates soon. (I contacted the office last week).

Why Have a Hatch Act? (U.S. Supreme Court)

"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, 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.”Public confidence in government institutions and avoiding “a powerful, invincible, and perhaps corrupt political machine”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.”

Hatch Act Case Summaries:

Hatch Act home page:

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