Hatch Act Problems and a Solution

I've written before about some of the problems relating to the Hatch Act's prohibition of local government employees running for office if their agency gets any funding from the federal government (1 2). Jason C. Miller has written an article for the Southern Illinois University Law Review that not only points out several more problems with this aspect of the Hatch Act, but also suggests a reasonable solution.

Unintended Consequences
One of the examples of unintended consequences of the Hatch Act is troubling (see p. 323ff). An assistant prosecutor decides to run for office against the prosecutor. A week after the assistant filed for the office, the prosecutor fired him for a violation of the Hatch Act. The good news is that the assistant won the election. But this was likely because people would not likely be sympathetic to the prosecutor of, for that matter, to the Hatch Act. Why shouldn't an assistant prosecutor take on the prosecutor in an election? That's the American way.

Of course, the other thing that was going on here is that the prosecutor had one helluva conflict of interest, and dealt with it about as irresponsibly as she could have. But the Hatch Act does allow for the removal of someone who violates it, not by his boss, but after a hearing. And prosecutors are certainly not supposed to break the law. So the result, had someone else actually done it, was not out of the question.

The Purposes of the Hatch Act
The purposes of the Hatch Act include preventing the use of federal funds to affect elections, ending patronage, and avoiding the appearance of corruption. The rule applies only to partisan elections, which at least limits its applicability in local elections to a minority of municipalities (although it is applicable to most counties). But are any of these goals actually met by preventing local government employees from running for office? How would they use federal funds to do this, since they can't legally use local funds anyway? Does it really look corrupt for a city employee to run for city council without giving up his or her job?

As for patronage, that works in many ways. The norm is giving a government job to someone who works on a successful campaign, which involves another part of the Hatch Act. So, with respect to the candidacy rule, the purpose really comes down to preventing government employees from being rewarded with the ability to run for office. I can certainly see how this could be a way of rewarding certain party stalwarts, but how often does it happen, and how bad does it look? Is it that much worse than rewarding loyal commission members with a chance to run for council?

Miller's Criticisms
Miller's principal criticisms of the Hatch Act's limits on government employees running for office are that it reduces competition, which in turn limits accountability. It also protects incumbents. And it involves discipline for what employees do outside of work, which is commonly frowned upon.

He notes that federal funds may be administered by an employee's supervisor, who is an elected, partisan official, but that's okay. He also notes that the government employee may be running for an office in a different jurisdiction, where there would be no appearance problems. He also notes that the law is not necessary because the media is hostile to political machines, and merit-based civil service is well-established. Things have changed.

Court Decisions
But the courts have consistently found that the Hatch Act serves compelling governmental interests, although the Supreme Court has never considered the burden on a state or local employee's speech rights by the federal government. With respect to local government employees, it would seem that the state would be in a better position to handle a matter such as this, and many states apparently do.

However, a federal district judge, in Mains v. City of Rochester (No. 03-CV-6363T(F), 2004 U.S. Dist. LEXIS 14826 (W.D.N.Y. Jul. 23, 2004)), invalidated an ordinance that prohibited teachers and other school employees from running for council or mayor, unless they first resigned. The goal of the ordinance was to prevent conflicts of interest, but the court rejected this argument because there was insufficient evidence of actual conflicts of interest.

A Conflict of Interest Approach
Miller takes the position that the real goal of the candidacy part of the Hatch Act is

preventing allowable off-duty partisanship from spilling into the workplace. When a covered employee is a candidate for partisan office, it may be much more likely (or at least appear more likely) that the candidate will abuse his or her position and access to funds because the employee has a stronger personal incentive to do so. But the real problem is where the covered employee has an actual conflict of interest, both because of the increased opportunity to use the position for political gain and the appearance of unfairness involved when there is an actual conflict. Conflicts of interest should not be subsidized with federal funds because they create an increased likelihood of wasting federal funds. Candidacy restrictions that  focused on preventing conflicts of interest (even nonpartisan ones) would be more narrowly tailored than blanket candidacy restrictions. These restrictions would maintain fairness, ensure the appearance of fairness, and prevent the waste of funds without unnecessarily limiting voter choices.

Miller wants the issue to be treated primarily as a conflict of interest issue. And he has an example of an act that works, what he calls Michigan's "little Hatch Act," Mich. Comp. Laws §15.401, et seq. (2009). Here is the relevant part that applies to local government employees:

§15.403(1) An employee of a political subdivision of the state may: ... (c) Become a candidate for nomination and election to any state elective office, or any district, county, city, village, township, school district, or other local elective office without first obtaining a leave of absence from his employment. If the person becomes a candidate for elective office within the unit of government or school district in which he is employed, unless contrary to a collective bargaining agreement the employer may require the person to request and take a leave of absence without pay when he complies with the candidacy filing requirements, or 60 days before any election relating to that position, whichever date is closer to the election.

In other words, instead of having to resign, the local government employee running in his or her own unit of government may take an unpaid leave of absence. Running for office elsewhere would be okay.

The reason for this distinction is that there is a conflict of interest only within one's unit of government. A teacher running for council doesn't have a conflict, nor does a clerk in the finance office have a conflict with the school board, not to mention the school board in another school district, where she lives.

This seems like a good solution to the problem. I'd like to hear of arguments against it.

In fact, I argue in a recent blog post that having such a conflict, when it would not recur very often, would itself be acceptable, as long as the employee-council member were to withdraw whenever matters relating to her agency came up.

Robert Wechsler
Director of Research-Retired, City Ethics

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