- The director of a city planning department running for a partisan political office
- A police officer wearing her uniform to a partisan campaign event
- A municipal employee sending email invitations to a campaign fundraiser from his work account
These are all examples of people and things potentially covered by the Hatch Act of 1939, Federal legislation that restricts the ability of certain governmental employees from participating in partisan political activities. While most municipal employees probably have a working knowledge of Mississippi’s Ethics in Government Act many may not realize that they may also be covered by this Federal law.
Who is covered by the Hatch Act?
The legislation known as the Hatch Act was passed by Congress in 1939 to limit political activities of Federal employees, employees of the District of Columbia and certain employees of state and local governments. The Office of Special Counsel of the U.S. Merit Systems Protection Board (OSC) is now charged with the enforcement of the Act. OSC not only investigates and prosecutes Hatch Act complaints, but also issues advisory opinions, a number of which can be found on the independent agency’s website at www.osc.gov.
The Hatch Act applies to individuals employed in the executive branch of States, municipalities, or other political subdivisions of a State. For purposes of this article we’ll limit our discussion to city governments. Even in this limited context however, the reach of the Act is exceptionally broad, extending to municipal employees:
whose principal employment is in connection with an activity which is financed in whole or in part by loans or grants made by the United States or a Federal agency.
Two important exemptions include: (1) individuals who exercise “no functions” in connection with the Federally-funded activity; and (2) those employed by an educational or research institution. In addition, Federal courts considering the reach of the Act have also held that a connection with Federally-funded activities that is “‘merely a casual or accidental occurrence’ of employment” is not covered by the Act.
While the funding of one’s salary, in whole or in part, is a pretty good indicator of a Hatch Act connection, a municipal employee may still be covered if his or her salary has no Federal funding source. Individuals supervising employees who work on Federally funded programs, because of their oversight responsibilities, have also been found to be subject to the Act. The test is: “whether, as a normal and foreseeable incident to his principal position or job, he performs duties in connection with an activity financed in whole or in part by Federal loans or grants ….” If an employee meets this standard, the source of the employee’s salary is not relevant.
What activities are covered by the Hatch Act?
A municipal employee covered by the Act may not: (1) use his official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for office; (2) directly or indirectly coerce, attempt to coerce, command, or advise a State or local officer or employee to pay, lend, or contribute anyth ng of value to a party, committee, organization, agency, or person for political purposes; or (3) if the salary of the employee is paid completely, directly or indire:tly, by loans or grants made by the United States or a Federal agency, be a candidate for elective office.
It is important to note that the first two prohibitions apply to all employees covered by the Act while the ban on candidacy is limited to positions paid completely with Federal funds. However, the candidate ban does not apply to mayors, duly elected heads of executive departments of a city, or any other individual holding elective office.
May covered employees participate in campaign activities?
The Hatch Act does not, strictly speaking, prohibit a covered employee from engaging in campaign activities on their own time. Instead, the question that must be asked in each case is whether the employee is using his or her “official authority” or the “influence” of his/her position to influence votes or raise money for a campaign. Case law interpreting these provisions tends to be very fact-specific.
For example, in the case of McKechnie v. McDermott, 595 F.Supp. 672, 674 -75 (N.D. IN 1984), the District Court noted (in the context of a preliminary injunction hearing) that a city employee’s “active participation in a political campaign is not in itself sufficient to cause a violation of the Hatch Act even if the agency for which he works is federally funded.” Therefore, the fact that a covered municipal employee had attended fundraisers, worked at a campaign headquarters, displayed a sign and bumper sticker, attended rallies, and wore a campaign button were not in and of themselves, Hatch Act violations. Id. at 675. However, proof that the employee participated in walking campaigns during working hours was cited by the Court as an example of a possible violation. The Court also observed that if the employee’s solicitation of fundraising tickets had been directed at fellow employees a violation could have occurred. Id. at 675-76.
Taking personal leave does not automatically insulate a covered employee from the Act’s prohibitions. However, guidelines issued by the OSC provide that covered employees may engage in a wide range of partisan political activity on their personal time – if they are acting solely in their personal capacity and refrain from identifying themselves by their official title. If they obey these rules, covered employees are permitted under the Hatch Act to:
- register and vote as they choose;
- assist in voter registration drives;
- express opinions about candidates and issues;
- contribute money to political campaigns;
- attend political fundraisers, rallies, and meetings;
- join and be active members of political parties or clubs;
- sign and circulate nominating petitions;
- campaign for or against referendum questions;
- and campaign for or against candidates.
The Hatch Act applies to municipal employees who exercise functions in connection with any activity that is financed in whole or in part with Federal funds. Conversely, employees who have no connection to Federal funds or whose employment activities have a de minimis connection are not covered by the Act. Covered employees may still participate in campaign activities on their personal time. While doing so, however, they should take care to avoid any behavior that would create the appearance that they are participating in an official capacity.