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 (<a href="http://www.cityethics.org/node/409">1</a> <a href="http://www.cityethics.org/content/conflicts-local-government-employees-…;).
Jason
C. Miller has written <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1444192">an
article for the Southern Illinois University Law Review</a> that not
only points out several more problems with this aspect of the Hatch Act,
but also suggests a reasonable solution.<br>
<br>
<b>Unintended Consequences</b><br>
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.<br>
<br>
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.<br>
<br>
<b>The Purposes of the Hatch Act</b><br>
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?<br>
<br>
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?<br>
<br>
<b>Miller's Criticisms</b><br>
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.<br>
<br>
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.<br>
<br>
<b>Court Decisions</b><br>
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.<br>
<br>
However, a federal district judge, in <i>Mains v. City of Rochester</i> (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.<br>
<br>
<b>A Conflict of Interest Approach</b><br>
Miller takes the position that the real goal of the candidacy part of
the Hatch Act is<ul>
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.</ul>
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," <a href="http://legislature.mi.gov/doc.aspx?mcl-Act-169-of-1976">Mich.
Comp. Laws §15.401, et seq</a>. (2009). Here is the relevant part
that applies to local government employees:<ul>
§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.</ul>
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.<br>
<br>
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.<br>
<br>
This seems like a good solution to the problem. I'd like to hear of
arguments against it.<br>
<br>
In fact, I argue in <a href="http://www.cityethics.org/content/local-government-employees-sitting-co…
recent
blog post</a> 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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
---