The Conflicts of Local Government Employees Running for or Holding Elective Office
When a government employee holds or runs for elective office, there can
be conflict of interest problems. The principal problem occurs when the
government employee has to participate in a matter that directly or
indirectly affects his or her agency or department. Whether there is a
conflict depends on how direct the effect is. Another problem involves running for office in violation of the federal Hatch Act.<br>
<br>
According to<a href="http://www.lowellsun.com/local/ci_13376171" target="”_blank”"> <b>an
article in the Lowell (MA) <i>Sun</i></b></a>, the Massachusetts ethics commission
advised a police dispatcher who is a selectman for the town he works
for that he may vote for a new town manager, even though the town
manager will be involved in collective bargaining with his union. That
is, the selectman may vote for someone who will have some control over
his income, but only as part of a bargaining unit, not individually.
This seems reasonable, since one vote for the manager's appointment
would not seem enough to go easy on the entire bargaining unit. The
same selectman regularly recuses himself on all police department
matters.<br>
<br>
But an ethics complaint was still filed against the selectman. To some
people it seemed to be a conflict, even if indirect and as part of a
group.<br>
<br>
More serious, I think, are situations where an employee is in a
position to affect a supervisor's job or salary, or where an employee's
party position requires him or her to publicly criticize a supervisor.
This is why I frown on government employees holding any sort of party
office. It puts the employee in a position to affect his or her job by
the act or threat of public criticism of a supervisor. The sight of an
employee publicly
castigating a supervisor, such as an elected mayor, especially when the
job is safe, can be very ugly.<br>
<br>
Another problem faced by some government employees who run for office
is violation of the federal <a href="http://www.law.cornell.edu/uscode/html/uscode05/usc_sup_01_5_10_II_30_1…; target="”_blank”"><b>Hatch
Act</b></a>. The Hatch Act's application to local government employees,
including a number of advisory opinions, is well described in an <a href="http://www.osc.gov/ha_state.htm" target="”_blank”"><b>Office of Special Counsel
webpage</b></a>. But as the OSC told the <a href="http://www.nhregister.com/articles/2009/08/01/news/shoreline/b7-clhatch…; target="”_blank”"><b>New
Haven <i>Register</i></b></a> last month,
"application ... relies on a highly nuanced analysis of the
circumstances of an individual's employment," based on federal funding
of the government employee's agency and specific work.<br>
<br>
Here is a summary of the Hatch Act's provisions, from an earlier <a href="http://www.cityethics.org/node/409" target="”_blank”"><b>blog post</b></a> of mine. The
goal of the Hatch Act, passed in 1939, was to limit partisan political
activity to ensure that there are not conflicts of interest.<br>
<ul>The Hatch Act limits the political
activities of local government
employees who are principally employed by programs funded in whole or
in part by the U.S. or a federal agency. The government employee:<br>
<br>
Cannot be a candidate for public office
in a partisan election
[nonpartisan elections are okay, which is good for most municipalities,
but not most counties; it is also okay for an employee to be
appointed to any position]<br>
Cannot use official authority or influence to interfere with or affect
the results of an election or nomination<br>
Cannot directly or indirectly coerce contributions from subordinates in
support of a political party or candidate<br>
</ul>
Because the penalty for a violation is serious - removal from the job
or loss of federal funding - local governments often overreact and
prevent employees from running for office, just in case.<br>
<br>
The occasion for the above OSC comment was a wholesale submission of a
slate of candidates to the OSC for review, an unusual move, but an
understandable one, since the slate includes a town tax collector, two
police sergeants, and other government employees. The town attorney
considered this a waste of time, arguing that individual candidates
should seek advice from the OSC. An OSC attorney agreed. But few
candidates would think of seeking advice unless advised to do it, or
because it became a
political issue. And since ignorance of the law is taken into account
in determining sanctions,
it would seem in an employee's interest not to ask questions.<br>
<br>
Where local government elections are partisan, government employees
running for office should look at the Hatch Act and ask for OSC advice
if they are not certain their candidacy is one that is not covered by
its
provisions. The effect on sanctions is not a legitimate excuse for not
knowing whether you are in violation of a law.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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