The issue of the Hatch Act reared its head when Public Safety Commissioner Steve Simpson announced he is running for Attorney General and was earlier mentioned in a newspaper article covering the Madison County Sheriff's race. The Hatch Act prohibits government employees from running for public office. The question that usually arises is whether state or local government employees are covered by the law. The Office of Special Counsel states on its website a covered employee is:
"An officer or employee of a state or local agency is subject to the Hatch Act if, as a normal and foreseeable incident of his principal position or job, he performs duties in connection with an activity financed in whole or in part by federal funds. Coverage is not dependent on whether the employee actually administers the funds or has policy duties with respect to them. However, an employee may have other duties in connection with federally funded programs or activities, and thus may be covered by the Hatch Act, even though he does not apply for or administer federal loans or grants or have any authority or discretion over the federal funding." Special Counsel FAQ's, Federal Law
Considering how many local law enforcement agencies receive federal dollars for communications systems, Homeland Security, anti-drug programs, and supplementing salaries, the Hatch Act probably applies to some or all of those who have filed qualifying papers for the Madison County Sheriff election: Ridgeland Police Chief Jimmy Houston and Madison County Deputies Randall Tucker, Brad D. Harbour and Mark Sandridge. The Madison County Journal attempted to address this issue in a January story when it asked Chief Houston about the Hatch Act:
"There are federal statutes in the "Hatch Act" that prohibit certain city employees from running for public office while serving in an appointed position that receives federal funding in any way.
However, Houston points to several opinions from the state Attorney General's office that allowed similar situations where a police chief ran for sheriff.
"I cannot campaign while on duty and I can't utilize anything that belongs to the city while trying to get elected," Houston said. "I'll be very careful to maintain that and I believe there is enough time nights and on weekends between now and Aug. 2 to run for sheriff.
"I assure you the city of Ridgeland and its citizens will no be hurt by me running for sheriff," he continued. "I take my job very seriously."
It would have been interesting if Mr. Watson had actually cited some actual opinions because a quick review of several opinions does not support Mr. Houston's claim. The Attorney General stated in Opinion No. 2009-00425 (2009):
"The Hatch Act is a federal law under the jurisdiction of the Office of Special Counsel. We do not interpret federal law by way of an official opinion.
Generally, the Hatch Act restricts political activity of individuals principally employed by state, county, or municipal executive agencies who work in connection with programs financed in whole or in part by federal loans or grants. State and local employees may be candidates for the public office in nonpartisan elections.
Whether an individual is covered by the Hatch Act and whether a covered employee has violated the Hatch Act must be determined by the Office of Special Counsel." (The AG emphasized this last sentence.)
If there is one consistent theme in requests for AG opinions about the Hatch Act for decades, it is the Attorney General does not interpret federal law and refers all questions to the Office of Special Counsel although Mike Moore did state in 1995: " Also, municipal employees covered by the federal Hatch Act would be prohibited from being candidates in partisan elections."(Opinion No. 95-0338 in 1995). One opinion even states an employee can avoid violation in a non-partisan special election for Alderman but ironically would have to resign to run for re-election since it would be partisan with party primaries. A 1979 opinion declines to interpret the Hatch Act when a police officer asked if it allowed him to run for Sheriff.
Thus it is very interesting Mr. Houston points to several AG opinions according to Mr. Watson when the Attorney General specifically and repeatedly states his office will not interpret federal law. Since we are discussing the interpretation of the Hatch Act, lets take a look not at what the Mississippi Attorney General thinks but instead at what the U.S.Office of Special Counsel thinks. The Counsel says covered employees can not even take a leave of absence:
"f you are covered by the Hatch Act, taking a sabbatical or leave of absence will not allow you to be a candidate in a partisan election. State and local employees subject to the Hatch Act continue to be covered while on annual leave, sick leave, administrative leave, furlough or any other paid or unpaid leave.
So much for campaigning while "off-duty". The Hatch Act will not allow a covered employee to campaign at all or run for office while an employee regardless of whether he is off-duty or not "on the clock". Period. The Special Counsel has a few more things to say about the application of the Hatch Act :
"If my candidacy is found to be in violation of the Hatch Act, can I relinquish the duties that cause me to be covered by the Hatch Act, and thus negate my violation?
Answer: No. A person is in violation of the Hatch Act when, at the time he engaged in prohibited conduct, he was covered by the Hatch Act. It has been held that candidacy begins when preliminary steps are taken to establish a candidacy, not just when a formal announcement is made. For example, canvassing voters, polling for name recognition, or meeting with campaign managers are preliminary steps taken that would be viewed as candidacy for purposes of the Hatch Act (even if a formal candidacy is not declared). If such steps are taken by someone who is covered by the Hatch Act, a violation of the Act will have occurred. A change in duties at a later time will not negate the already existing violation."
One 2010 law review article blasted the Hatch Act for creating the dilemma for potential candidates who just happen to be local government employees:
"It happens prior to every election. An employee of a local or state government agency decides to run for political office on the employee’s own time only to find out that he will lose his job if he actually files to run for office. What would have been an election fight turns into an employment dispute. Some choose to withdraw their candidacy, some choose to continue their race at the expense of their day job, while some are given no choice at all. The covered employees are put in this position because of a federal law called the Hatch Act.1 The Hatch Act’s coverage of state and local government employees often comes as a surprise to those involved because the statute does not provide clear notice regarding who and what is actually covered.2 Even if the potential candidates are aware of federal grants coming into an agency, they think of themselves as state)not federal)employees and do not necessarily realize that federal grants make state employees answerable to the Hatch Act."
All four candidates thus might be in violation of the Hatch Act. Regardless of whether a violation has occurred, and it is the opinion of this writer such violations have probably taken place, the law is clear that if they want to run for Sheriff and if federal dollars are connected to their jobs or they oversee the administration of federal money, then they have to resign if they want to run for Sheriff. The question will be the nexus of their respective positions to federal money.
Saturday, February 5, 2011
The Hatch Act and the Madison County Sheriff's race
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If that is the case, how does any sheriff whose office received federal funds, run for re-election?
Kingfish, have you read this?
42 M.S.P.R. 333
Merit Systems Protection Board.
SPECIAL COUNSEL, Petitioner,
v.
Bernard J. BRONDYK, and Muskegon County Department of Emergency Services, Respondents.
Nov. 15, 1989.
Timely exceptions were brought to recommended decision of chief administrative law judge that local government employee knowingly violated Hatch Act. The Merits Systems Protection Board held that: (1) employee was covered by Hatch Act, and (2) employee's violation of Hatch Act in running for office of county sheriff warranted removal.
Maybe we should ask Ward Schaefer. After all he was a school teacher.
As is his practice, the Kingfish has given us an interesting item to ponder.
There has to be an answer to this in the form of exemptions for elected officials, and someone who has dealt with it before probably can give us the citation off the top of his head. How else would members of Congress - or a member of the Board of Supervisors, for that matter - run for reelection? Virtually all agencies at every level of government have received federal funding in some manner. I'm not so sure about appointed or hired officials like the four mentioned in the post, though. For example, it's impossible to separate Candidate Houston from Chief Houston no matter how hard he works to keep his campaign activities separate from his official duties. While forcing a candidate to resign from a government job to run for public office would surely reduce the number of qualified and experienced candidates for jobs like County Sheriff, it would also weed out those who aren't completely committed to the campaign. Bill Billingsley
Bill is right but I can't quote it.
What the Hatch Act prevents is anyone else in the Sheriff's office involved in the campaign in ANY WAY. A challenger currently employed in the Sheriff's office would have to resign to run and no one employed in the Sheriff's office could help either candidate .
Actually, a government employee who receives federal funds cannot be involved in partisan politics AT ALL.
The employees of the Sheriff's office are supposed to be protected from the pressure of having to support one candidate or the other.
Elected officials are exempt. Its for employees.
Kingfish is right (as usual). Elected officials are exempted by the statute. It seems the Hatch Act has been deemed Constitutional through a variety of challenges, Equal Protection, Free Speech, etc.
Perhaps it has not been brought up in Mississippi lately, for I know of several state official seeking partisan political office. Lauderdale County is full of them, Supervisor, Sheriff, and Constable.
Of course that raises the question of Lynn Fitch, Lucien Smith.
Maybe you should disclose how you are friends with Lee Yancey and give him a pulpit on this site before you start making accusations about Lynn Fitch.
Lee Yancey has blogged on this site before in his capacity as State Senator although its been nearly a year since he has done so.
I've got a suspicion the commentor was right,there might have been a few candidates that violated this law. And sorry,forgot Mr.Smith resigned.
I'm too lazy to look, has this statute ever affected a Mississippi election?
Not that I know of but it can affect current employment.
Please note People: YOU can file a Hatch Act complaint at http://www.osc.gov/haFilingComplaint.htm
It's anonymous, it's easy, and you would be doing your county a service, even if there's no violation of the Act.
Well it probably would be hard to find any state or local agency who doesnt get some for of federal money. Health Dept, Education Dept, Counties for roads, cities in roads and healthcare, everyone gets federal money these days. So the hatch act really needs to read if you are appointed or work for a government agency you need to resign.
Reading this law over and over,I find it hard to see how Chief Houston can actually keep his current job. The other candidates I don't know about because I don't know the relation of federal dollars to their positions.
Reading this law over and over,I find it hard to see how Chief Houston can actually keep his current job.
Now the writing on the wall becomes more clear.
Next someone, probably not you KF though I'm not convinced you don't have a historical beef with the candidate due to some of the loose cannons he had on the Ridgeland force, would challenge, even if he resigned, Houston's ballot descriptor and/or statement.
You'll challenge someone who actually is qualified on the fringes but let someone who isn't, for instance Whitwell, ride.
When you let the truth about Whitwell through Mr. Moderator then I'll believe you're being fair to Houston.
First of all, Chief Houston is the one that said he was backed up by several AG opinions,not me. So I logically asked which ones because I never found any of them but what I did find were a string of opinions that said the AG declined to interpret federal law and that the person requesting the opinion needed to ask the Office of Special Counsel for an interpretation.
I also said ALL FOUR candidates could be affected by this as they are ALL employed in law enforcement agencies. In Mr. Houston's case, his is more clear cut because he is the chief of a sizable department, the others, we don't know what their positions are in relation to federal money.
The result could be that they ALL have to quit their jobs but you seem to be ok with violations of the law, don't you?
As for Mr. Whitwell, how is Mr. Whitwell not qualified? Lawyer, lobbyist, and just as qualified as Ben Allen, Jeff Weill, and Dent Anglin were for that seat. You're just trying to start crap. While you're starting crap, why don't you tell me what laws Mr.Whitwell supposedly violated?
Well what do you know, I check my traffic counter and its my little Rudy/Eric/Tim/Karl/Paul troll from Madison County hiding behind his proxy server.
Kingfish - why don't you include Gerald Steen on the Rudy/Eric/Tim/Karl/Paul team? Steen is owned by those guys, and promises to continue their legacy... and Tim had his pals Steen and McGee line up Houston for Sheriff! a sordid bunch . . .
Kingfish, you know when they can't attack the testimony, they attack the witness.
An interesting side effect of stimulus spending. All that federal money pouring into state and local offices could subject a lot of potential candidates to Hatch Act limitation across the state. Not that there wasn't a ton of federal money at every level already, but I suspect there are those dealing with federal money and the rules attached to it that have not dealt with it before - not just in Mississippi. That would be an interesting article for the NYT or Wall Street Journal to examine...or Kingfish some more.
When I was a local government employee in another state, I came under the Hatch Act as part of my salary was federal monies. I had not known that and had been elected as a independent precinct delegate. I had to resign as a delegate or lose my job.
so when Mac uses jail employees to staff his election HQ, that is not kosher? he has done it before & will do it again this go round.
Not kosher if one penny of the jail employees' salary is federally funded.
Okay, who is going to file an official complaint for an investigation?
Hopefully, No one! The Hatch Act in an outdated and archaic law that prevents good, qualified people from seaking elected office. who amoung you could quit your job for 8-12 months to take a chance on runnng for public office??
Well the law is the law. If it is outdated it should be changed. Until then it is the law and should be enforced if violated. Who determines what laws can be broken and what laws cannot, particularly with respect to the office of sheriff.
Ridgeland P.D. does not have any federal grants....so.....the hatch Act does not apply
Ridgeland PD uses grants that are funded by organizations such as MADD.
I don't see any reason the federal government has a say so in what who should be allowed to run for state, county, or municipal offices. Those local governments should make those decisions their selves.
BUT, if an employee of a local government is found to have violated rules (Hatch Act)that apply to the eligibility for receiving grants, then the Feds should be able to take back any grant money given to that employee's department and not give grants to that department as long as that person is employed.
As for Mac. Just ask any of his former Deputies. They are forced to work for his campaign during their off time. Kinda of a "Work for me or you don't work for Hinds SO."
Voters will be lucky if Mac wins. Then every case can be handled as well as the Irby case he managed.
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