How to avoid Campaign-related Complaints to State and Federal Offices

Heads up Prospective Candidates for Elective Office: (or, welcome to Elisabeth’s crash course in how to prevent campaign-related complaints from being filed against you).

I don’t write local, state or federal campaign laws. But, as a political scientist and former legislative aide, I do like to see them enforced. Granted, anyone can make a mistake or two when filing public disclosure documents, but repetitive, pernicious political activity certainly deserves to be reported to appropriate federal or state authorities.

Call me old fashioned, but I believe that every candidate should be able to demonstrate that he/she respects and obeys campaign laws adopted by the legislative bodies of this state before they run for public office. No exceptions. If a candidate for public office is going to administrate a city or county; or draft legislation to govern the behavior of others, he/she should be able to demonstrate some respect for the law during a campaign. Does this mean I would disqualify someone on the basis of a traffic ticket or DUI? No. Everyone makes mistakes. But candidates do have an obligation to show voters that they respect and obey our laws.

Wikipedia tells us, "Ignorantia juris non excusat or Ignorantia legis neminem excusat (Latin for "ignorance of the law does not excuse" or "ignorance of the law excuses no one") is a public policy holding that a person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware of its content; that is, persons have presumed knowledge of the law)."

Below, please find a summary of the State and Local Employee Hatch Act provisions. Links to official documents are located at the bottom of the page.

Lesson 1:

What is the Hatch Act?

The Hatch Act is a federal law that limits the political activities of federal employees and some state and local government employees.

Am I covered by the Hatch Act?

The Hatch Act applies to Federal, State or Local Government Employees who are principally employed in connection with a program financed in whole or in part by federal funds.

What are the exemptions from the Hatch Act?

Governors, lieutenant governors, or other elected officials are exempt if the elective office is their principal place of employment. Officers and employees of educational (for example, college professors are exempt) or research institutions supported in whole or in part by a state or political subdivision are also exempt from the Hatch Act. One time recipients of a federal grant or loan may be exempt under certain circumstances. Employees of Native American Governments are also exempt under certain circumstances.

What are the restrictions for State and Local employees?

State and Local employees who are covered by the Hatch Act may not use their official authority or influence for the purpose of interfering with or affecting the result of an election or nomination for office. State or Local employees may not: 1) use official authority or influence for the purpose of interfering with or affecting the result of elections or nominations for office; 2) directly or indirectly coerce, attempt to coerce, command or advise a state or local officer or employee to pay, lend or contribute anything of value to a party, committee, organization, agency or person for political purposes; or, 3) be candidates for partisan elective office.

Pay attention now, this is where it gets interesting – Scott J. Bloch, a U.S. District Attorney, tells us in an 2007 article he wrote for the National District Attorney Association (NDAA), "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." http://cc.msnscache.com/cache.aspx?q=72891547856166&mkt=en-US&lang=en-US&w=476ba475&FORM=CVRE10

In other words, the Hatch Act has a standard for determining when a nonpartisan position becomes a partisan position.

Employees as Candidates

Author Karen Robb tells us in an 10/2004 article printed in the Federal Times, titled Hatch Act Minefield: as Political Activisim rises, so do violations and prosecution; that "The rules on seeking polticial office are complex. Employees can run for office only if the election is nonpartisan. But there are exceptions. If an employee lives in Washington D.C., or one of it's surrounding suburbs, or in one of 12 other communities in Alaska, Arizona, California, Georgia, Tennessee and Washington State where a large number of residents are federal employees, he can run for office in partisan campaigns, but only as an independent.

Even when an election is nonpartisan, the Hatch Act can trip up federal, state and local employees."

To illustrate her point, Karen Robb tells a story about Mike McEntee, an air traffic controller for the Federal Aviation Administration who ran for mayor of Albuquerque, N.M., in 2001. "Candidates for local office in that city are listed on the ballot without party affiliation, so McEntee's campaign was within the bounds of the Hatch Act. In fact, he had already served on the City Council, after being elected in a nonpartisan election.

But the race for Mayor was competitive, and McEntee's opponents began emphasizing their republican - not Republican Party ideology. In response, McEntee identified himself as a republican in his campaign literature after local newspapers began referring to him as a conservative republican.

OSC charged McEntee with violating the Hatch Act. He ultimately served a four-month suspension and since has spent more than $100,000 on attorneys to appeal his suspension. His appeal is pending before the Federal Circuit Court of Appeals. McEntee said that when he referred to himself as a conservative republican, he did not mean he was running as a member of the Republican Party. "In a partisan race, the parties choose the candidate to represent them. (Not in Washington State). "The party was not involved in selecting me to run." McEntee said. "I used the term republican as a way of describing my ideology." http://federaltimes.com/index.php?S=383338

What are some of the protections for State and Local employees?

State and Local employees, including those covered by the Hatch Act, may vote as they choose and express their opinions on political subjects and candidates, including, for example, serving as a poll worker or assisting with a political campaign." (Just don’t do it from your state office computer – otherwise, someone might file an WA State Legislative Ethics Board or WA State Executive Ethics Board Complaint against you). See http://apps.leg.wa.gov/RCW/default.aspx?cite=42.52.360 training manuals can be found here: http://ethics.wa.gov/TRAINING/Ethics_Manual.htm

In Short, here's what covered employees can do:
1. Covered state and local employees may run for public office in nonpartisan elections
campaign for and hold office in political clubs and organizations.
2. Actively campaign for candidates for public office in partisan and nonpartisan elections, for example, drafting and making speeches, writing letters, and soliciting votes.
3. Contribute money to political organizations and attend political fundraising functions.
4. Attend and participate in deliberations at political conventions.
5. Work at polls on behalf of a candidate on election day.
6. Participate in any activity not specifically prohibited by law or regulation.

Here are some examples of what "Federal Times" tells employees not to do:

"Blogging about politics at work is a no-no, but even blogging off hours could land a fed in trouble under certain circumstances, said Ana Galindo-Marrone, chief of OSC’s Hatch Act unit."

Author Elise Castelli, tells us in the March 9, 2008, Federal Times, "In one case OSC is investigating, an employee has been accused of blogging about a local campaign on his personal blog while at his government job. There were allegedly more than 50 instances of prohibited politiking related to the blog and e-mails sent by the employee on government time," Galindo-Marrone said.

"E-mails make it easier to rack up a number of Hatch Act violations because people aren’t always thinking about the law when they give in to the temptation to forward a politically charged e-mail from a government account," said Special Counsel Scott Bloch, head of OSC. With a click of a mouse, federal employees can distribute political information using their official titles to a large group of people, he said.
“Using e-mail is no different than taking a brochure and going from office to office,” Bloch said. “It’s still electioneering.” Employee unions are concerned that OSC is being too tough in how it views e-mail and blog cases." http://federaltimes.com/index.php?S=3411565

Hatch Act Background:

The Hatch Act of 1939 is a U.S. Federal law. According to Wikipedia, the Act,“whose main provision is to prohibit federal employees (civil servants) from engaging in partisan political activity. The Act was named after Senator Carl Hatch of New Mexico, the law was officially known as An Act to Prevent Pernicious Political Activities.”

The original Act forbids intimidation or bribery of voters and restricted political campaign activities, including forbidding officials paid with federal funds from using promises of jobs, promotion, financial assistance, contracts, or any other benefit to coerce campaign contributions or political support.

The Hatch Act was appealed to the Supreme Court twice; In the NDAA article mentioned above, District Attorney Scott J. Bloch tells us,"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.." http://cc.msnscache.com/cache.aspx?q=72891547856166&mkt=en-US&lang=en-US&w=476ba475&FORM=CVRE10

Examples of recent legal challenges under the Hatch Act:

*Please note that individual states have different laws regulating the removal of candidates from office who violate campaign laws. Here are examples from Terre Haute, Indiana, New Jersey, Michigan and New York for your consideration:

Terre Haute Indiana mayor Kevin Burke challenged the candidacy of mayor-elect Duke Bennett under provisions of the Hatch Act. 11/2007. Burke is appealing the Dec. 21 decision of Bolk, who 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 contended. Here's the story written by Austin Arceo;
http://www.tribstar.com/local/local_story_060204238.html

Another case, titled by the author/editor as "the Cleveland Dodge" can be found in the North Country Gazette: The Commentary Editor writes, "So what if soon to be ex-Warren County sheriff Larry Cleveland violated the Hatch Act by engaging in improper political activity while campaigning for the office of sheriff, including using officers, patrol cars and other departmental resources in his campaign advertising? He (the editor) goes on to say, "It’s likely that if someone had filed a complaint against Cleveland in 1999 for his use of his official authority or influence to affect the results of the 1999 election for sheriff and his direct and indirect attempts to coerce contributions from department members in support of his campaign, that he would have been removed from office by the federal government seven years ago rather than by the voters this past fall." http://www.northcountrygazette.org/news/2007/12/26/the_cleveland_dodge/

OSC filed a complaint against Mark Holmes, Executive Director of East Orange Housing Authority in New Jersey. Holmes is covered by the Hatch Act because he serves as Executive Director of a Housing Authority that gives out federal grant money (roughly $7 million in housing vouchers in 2005 alone). The East Orange Housing Authority receives grants from the U.S. Department of Housing and Urban Development for its overall operating expenses, and it also administers HUD Housing Voucher Assistance Payments. OSC alleges that Holmes was a candidate in the November 2005 partisan election for Lawrence Township Council. The agency also alleges that when Holmes was a candidate in that election, he knew about the Hatch Act’s restrictions on political activity. The Hatch Act restricts the political activity of individuals principally employed by state, county or municipal executive agencies who have duties in connection with programs financed in whole or part by federal loans or grants. An employee covered by the Act is prohibited from being a candidate for public office in a partisan election. The possible penalty for violating the Act is removal of the employee from his or her position with the state or local agency and debarment from employment with a state or local agency within the same state for the following 18 months. Special Counsel Scott Bloch stated, “The Hatch Act’s provisions are quite clear in cases like this. Given the apparently deliberate defiance of the law, our responsibility is plain. If the law was violated, especially when it is a higher level official, I believe it is my duty to take action.” http://www.osc.gov/documents/press/2007/pr07_05.htm

Votelaw tells us, "A Lenawee County Commission candidate called off her election campaign after learning of a legal conflict with her state government employment. But it is too late to take Allison MacArthur-Ruesink’s name off the ballot in the 9th commission district. The Adrian Township resident said she was told last week by her supervisor at the Department of Environmental Quality that her position as an environmental quality analyst is funded with federal money, making her ineligible to run for partisan office. The issue was not raised when she told her supervisor about her political plans before filing as a candidate on May 12. She was told last week that DEQ accounting staff verified she is in a federally funded position and was asked to voluntarily withdraw to avoid any federal sanctions under the Hatch Act." http://www.votelaw.com/blog/archives/004510.html

The Washington State Attorney General's Office has issued an opinion letter on the topic: http://askgeorge.wa.gov/atg/opinions/highlight/index.html?url=http%3A//www.atg.wa.gov/opinion.aspx%3Fsection%3Dtopic%26id%3D16786&charset=iso-8859-1&la=en&fterm=remove&fterm=elected&fterm=official&fterm=office&fterm=remove+elected+official+from+office&search=../opinions.html%3Fcharset%3Diso-8859-1%26nh%3D7%26style%3Datgo%26st%3D8%26qt%3Dremove%2Belected%2Bofficial%2Bfrom%2Boffice%26origin%3Datgopinions

Advisory Opinions
The best way to avoid penalties or complaints 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 http://cc.msnscache.com/cache.aspx?q=72891547856166&mkt=en-US&lang=en-US&w=2a4f29a4&FORM=CVRE6#, 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. Advisory Opinions are free.

Additional examples of successful cases from U.S. Office of Special Counsel website:

1. On February 1, 2007, OSC filed a complaint for disciplinary action against an employee of a state agency, charging that he violated the Hatch Act by being a candidate in the November 2005 partisan election for Lawrence Township Council. After OSC filed the complaint, the parties entered into a settlement agreement. Pursuant to the agreement, the employee was removed from his position as Executive Director and debarred for a period of six months from seeking or accepting employment at a state or local agency within the State of New Jersey.

2. The employee was Executive Director, of a private, not-for-profit organization, which is subject to the Hatch Act by virtue of its significant federal funding. On September 7, 2004, The employee allowed an agency employee who was on leave of absence, running for election to the U.S. House of Representatives, to give a campaign speech at a mandatory meeting of the entire agency staff. OSC determined there was a Hatch Act violation and filed a complaint with MSPB on July 10, 2006. On October 25, 2006, the employee and OSC entered a settlement whereby the employee admitted liability and agreed to serve a 30-day suspension. The suspension was served October 25 to November 24, 2006.

3. These companion cases concern serious allegations of coercion by an elected county prosecutor and his Executive Assistant. OSC’s investigation focused on numerous situations in which the subjects used their official authority to interfere with or affect the results of elections for preferred candidates (including the prosecutor’s wife) and/or coerce Hatch Act-covered employees into contributing money and time to the local Democratic party.

The prosecutor was first elected in 1992 as a representative of the Democratic party and has successfully run for re-election every four years since then. The Prosecutor’s Office has received three federal grants – the Violence Against Women Act (VAWA) grant, the Victims of Crime Act (VOCA) grant, and the IV-D grant – since at least 1997.

The prosecutor has duties in connection with these programs due to his oversight of the Prosecutor’s Office, including those programs funded with federal grants, and also due to his responsibility for seeking and receiving the grants. His Executive Assistant was covered by the Hatch Act because he was paid by and otherwise had duties in connection with the IV-D grant received by the Prosecutor’s Office. Among other things, OSC’s investigation focused on allegations that the prosecutor coerced subordinates to make yearly contributions to two Democratic party fundraisers, to volunteer for his 2004 re-election campaign, and to volunteer their time to the Democratic Party; used Prosecutor’s Office resources to further his 2004 candidacy for reelection to the Prosecutor position; and used his official authority to interfere with or affect the outcome of the 2004 election for United States Congress when he allowed his name and official title to be used on a fundraising invitation for a Democratic candidate.

OSC’s complaint also focused on allegations that the Executive Assistant similarly coerced employees, including subordinates, to make contributions to two yearly Democratic party fundraisers, and to volunteer on behalf of the Democratic party and on behalf of the prosecutor’s wife when she was a candidate in a partisan election in 2005; and used Prosecutor’s Office resources to further the prosecutor’s 2004 candidacy for re-election.At the conclusion of our investigation, we filed complaints for disciplinary action against both officials with the Merit Systems Protection Board.

END

Hatch Act Case Excerpt from: From Cornell School of Law: http://www.law.cornell.edu/nyctap/search/display.html?terms=jurisdiction%20not&url=/nyctap/I96_0052.htm

Petitioner Elmer H. Blackburne violated section 1502(a)(3) of the Hatch Act when he ran for elective office while a state governmental employee, resulting in the termination of his employment. Blackburne subsequently filed a grievance alleging that he was terminated without regard to the procedural rights guaranteed to him under the governing collective bargaining agreement (CBA). The issue presented is whether Blackburne is entitled to arbitrate his claim, which he describes as an employee disciplinary matter within the scope of the arbitration clause contained in the CBA, or whether public policy bars arbitration.

I. On July 5, 1991, Blackburne, an Alcoholism Program Specialist employed by respondent Office of Alcoholism and Substance Abuse Services (OASAS)[n 1], applied for a six-week leave of absence to seek the Democratic Party nomination for a New York City Council seat. In a memorandum, Blackburne's supervisor advised him that in the opinion of OASAS his candidacy violated the Hatch Act, that a leave of absence would not cure the violation, and that he should decide between pursuing the nomination or continuing his employment. According to OASAS, Blackburne could not legally pursue political office while employed by that agency. When the City Council election was subsequently postponed, Blackburne requested permission to delay a decision on resignation since his candidacy had become uncertain. OASAS responded that there was no reason "to deny his request pending resolution of the legality of the election by the Federal District Court."

On August 1, 1991, Blackburne filed his statement of intent to be a Democratic Party candidate for City Council in the September 12, 1991 primary. On August 14, 1991, Blackburne formally renewed his request for a leave of absence. Although OASAS maintained that the Hatch Act barred Blackburne's continued employment, it granted his request for an unpaid leave of absence while it solicited a ruling on the matter from the Office of Special Counsel (OSC) of the United States Merit Systems Protection Board (the Board), the agency charged with enforcement of the Hatch Act. In the interim, Blackburne lost the election. OSC subsequently charged Blackburne with a violation of the Hatch Act, 5 USC § 1502(a)(3).

In accordance with 5 USC §§ 1504 and 1505, an administrative hearing was held. The Chief Administrative Law Judge found that Blackburne's bid for a partisan elective office violated 5 USC § 1502(a)(3) and recommended his discharge from employment with OASAS. Blackburne appealed by filing exceptions with the Board. In its Final Decision and Order, the Board adopted and incorporated the decision of the Chief Administrative Law Judge. The Board ordered respondent OASAS to "remove [Blackburne] from his position within 30 days . . . [or] be subject to the sanction of a withholding of federal funds, as provided in 5 USC § 1506." OSC was directed to apprise the Board of Blackburne's employment status within 60 days and to monitor Blackburne's employment for the succeeding 18 months (see, 5 USC § 1506[a]). The Board also informed the parties of their right to file a petition for review in United States District Court within 30 days (see, 5 USC § 1508).

By letter dated August 4, 1993, OASAS notified Blackburne that his employment was terminated effective August 6, 1993 in accordance with the Final Decision and Order of the Board. Blackburne interpreted this letter to be a "notice of discipline" under Article 33[n 2] of the Collective Bargaining Agreement between petitioner Public Employees Federation (PEF), of which he was a member, and OASAS, and advised OASAS that he intended to file a grievance pursuant to Article 34[n 3]. OASAS in turn informed Blackburne that he was discharged in accordance with the Board's Final Decision and Order, and that the August 4, 1993 letter was not a "notice of discipline."

END

Please see links below for additional information - remember, it's the candidate's responsibility to ensure that he/she is in compliance with the law. Attacking a private citizen for filing a complaint against you after a violation is committed is deplorable.

Remember candidates -- no one is responsible for your behavior but you. If you obey state and federal campaign laws - no one will be able to file a complaint against you, not even me.

U.S. Office of Special Counsel: http//www.osc.gov/ha_state.htm

Political Activity for the State and Local Employee Handbook:
http://www.osc.gov/documents/hatchact/ha_sta.pdf

Non-Partisan Election Transformed to Partisan Election: http://www.osc.gov/documents/hatchact/federal/fha-27.pdf

Attorney General Letter regarding alleged Hatch Act violations: (Good background info) http://soswy.state.wy.us/election/HatchOP.pdf

Funds from the Federal Highway User Tax Fund constitute a “loan or grant” for purposes of the Hatch Act: http://www.osc.gov/documents/hatchact/state/Highway%20Trust%20Fund%20AO%20redacted.pdf

Federal Times: Hatch Act is a minefield: http://federaltimes.com/index.php?S=383338

Other blogs on this issue:
http://terryfrank.net/?p=1482