If you’re like me you’d like to leave the elections behind. But there are some lessons from elections that can help local and state law enforcement officers avoid Hatch Act violations that might cost them their jobs or their agencies’ federal funding.
The Hatch Act & Government Employees
In 1939, led by Senator Carl Hatch, Congress enacted “An Act to Prevent Pernicious Political Activity,” which became known simply as the Hatch Act. It grew out of concern that the administration sought to influence congressional elections by allowing certain congressional politicians to use the promise of federal jobs and federal employees to further their own campaigns.
In passing the Hatch Act, Congress decided that partisan political activity by federal employees and certain employees of state and local governments must be limited for public institutions to function fairly and effectively.
Federal, State & Local Differences
This article discusses only the restrictions placed on the political activities of state and local law enforcement. The reasons being:
• I don’t have room to cover both in one article.
• Having worked as a state and federal prosecutor and law enforcement trainer, it’s my experience that most federal employees at least know the Hatch Act applies to them, even if they don’t know why or how. That puts them enough in the know to ask questions. They can find excellent answers at the Office of Special Counsel’s (OSC) web site.
• More frequent are the unsuspecting state and local employees who discover too late that the Act may apply to them as well. Most headlines I’ve found about Hatch Act hazards dealt with local or state law enforcement officers.
Before we look at some of these headlining hazards, let’s look at what political activity the Act permits and prohibits state and local law enforcement to engage in.
Restrictions on State & Local Law Enforcement
If you are principally employed by a state or local law enforcement agency and work in connection with programs financed in whole or in part by federal loans or grants, the Act restricts your political activity.
If you’re part-time, the Act applies if the job is your principle employment. If you have a job other than your law enforcement job, generally the one at which you spend the most time and derive the most income is considered your principal employment. Moreover, the Act restricts you when you’re on annual leave, sick leave, leave without pay, administrative leave or furlough.
You don’t have to have discretionary authority over the funds to be working in connection with them. If federal funds reach any function you work in connection with, you’re covered by the act.
Here’s what the Act prohibits you from doing:
• Running for partisan political office. An election is partisan if any of the candidates in the election are running as a representative of a party whose presidential candidate received votes in the preceding Presidential election, e.g., Democratic or Republican. If you hold an elective office when you’re hired by a local or state law enforcement agency, you may finish your term. Likewise, you may accept appointment to fill a vacancy in an elective public office while concurrently working for a law enforcement agency. However, you may not run for re-election in a partisan election – unless you quit your law enforcement job.
• Using official authority or influence to interfere with or affect the results of an election or a nomination for office. An improper use of official authority or influence occurs when officers use their official titles while participating in political activity.
• Directly or indirectly coercing contributions (this includes time as well as money) in support of a political party or candidate. For example, a supervisor should not suggest officers purchase tickets to a fundraising event.
The Act does not prohibit you from:
• Being a candidate in a nonpartisan election.
• Campaigning for and holding elective office in political clubs and organizations.
• Campaigning for candidates for public office in partisan and nonpartisan elections
• Contributing money to political organizations or attending political fundraising functions.
• Participating in any activity not specifically prohibited by law or regulation.
I’ve previously written about cops’ restricted free speech. Know that the U. S. Supreme Court has repeatedly upheld the Hatch Act’s restrictions on speech because of the significant government interests advanced by the Act. See, for example, United Public Workers v. Mitchell, Oklahoma v. Civil Service Commission and Civil Service Commission v. National Ass’n of Letter Carriers.
Hazards from the Headlines
Frederick, Md., Deputy Police Chief Kevin Grubb probably wishes he’d known more about the Hatch Act when he made a bid for Sheriff. He ended his run after an attorney with the OSC said his candidacy violated the Hatch Act because he was in charge of fiscal operations in his department that received federal money.
The Hatch Act made for bruising politics in a GOP primary for Colorado’s El Paso County Sheriff’s Office when the incumbent filed a Hatch Act complaint against a Police Chief who opposed him in the GOP primary. Bet the Chief wishes he’d seen that coming.
That the Hatch Act can reach small county elections seemed to surprise even federal prosecutors, who declined comment when the South Dakota Fall River County sheriff’s race ended up with two of the three GOP primary contenders the subject of Hatch Act complaints. The third quit his job as an air marshal before entering the campaign so as not run awry of the Act. Most telling was when one of the two candidates facing complaints said he’d never heard of the Act until he entered his campaign.
Hatch Act violation complaints also dogged a race in North Carolina for Richmond County Sheriff. A stunning statement from the media’s coverage of that case was the observation that no one in the local elections office appeared to be familiar with the Act, even while it was being raised with sheriffs’ elections in other state counties.
Talk of easing the Act’s restrictions in state and local elections were spurred this summer in the McHenry, Ill., sheriff’s election. There the primary was between a local attorney and the Undersheriff. Seems the Sheriff’s department changed its organizational chart before the primary to ensure the Undersheriff was no longer working in connection with any federal funds. That raised some eyebrows.
On the other hand, do we want qualified and experienced undersheriffs prohibited from running for sheriff unless they first quit their jobs? Critics of the Act, which exempts an incumbent sheriff from the prohibition against running in a partisan election, say the Act gives an unfair advantage to incumbents and an unfair disadvantage to anyone else working in the sheriff’s department because, if they are qualified, they are also likely connected to federal funds.
What’s at Stake
The OSC is responsible for investigating reports of Hatch Act violations. If an investigation uncovers evidence of a violation, a written complaint may be filed with the U.S. Merit Systems Protection Board (MSPB).
A copy of the complaint is served on the charged employee. Full opportunity is provided to contest the charges, including a right to a hearing before the MSPB. The employee may be represented by counsel at all stages of the proceedings.
After considering the record, the MSPB will notify the employee and the employing agency of its decision. If the MSPB finds that the offense warrants dismissal from employment, the employing agency must either:
(1) Dismiss the employee or
(2) Forfeit a portion of the federal assistance equal to two years’ salary of the employee.
Employees may obtain answers to specific questions regarding political activity by calling OSC at 800-85-HATCH (854-2824) or 202-254-3650. Requests for written advisories may be made to the: U. S. Office of Special Counsel 1730 M Street, NW Suite 218 Washington, DC 20036; E-mail: hatchact@osc.gov; Web: www.osc.gov.
Bottom Line
Know that as a state or local law enforcement officer you are subject to both the restrictions and protections of the Hatch Act when it comes to you engaging in political activity or a supervisor directly or indirectly coercing you to engage in such activity. If you have any questions, contact the OSC and ask for an advisory opinion. That’s part of their job.