By Eileen Ambrose, The Baltimore Sun
9:55 AM EST, January 27, 2013
Even as Congress and the White House appeared to be at a standoff over the fiscal cliff last month, lawmakers and the president were able to agree on at least one thing: an update of the Hatch Act.
The 1939 law prohibits federal employees and certain state and local workers from engaging in partisan political activity on the taxpayer's dime. Violators typically have faced two types of penalties — both severe.
Congress passed bipartisan legislation in December that broadened the range of penalties and loosened the rules so that most state and local government workers — including those in the District of Columbia — can run for partisan elective office.
The new provisions kick in Sunday.
The last time the Hatch Act had a significant update was in 1993, and critics said another overhaul was long overdue. The complicated law can easily trip up workers and land them in career-ending hot water, critics say.
"We want our members to obey the law, but many times it gets murky," said Joe Flynn, national vice president with the American Federation of Government Employees in Ellicott City.
"Employees, unless really versed in the do's and don'ts, can very easily step over the line and not even know it," Flynn said. "I have seen folks who, through no fault of their own, stepped over the line and were faced with a 30-day suspension or faced with termination."
Flynn recalled a case of a Baltimore local that published an article on the AFL-CIO's recommendations on candidates. The newsletter was distributed on government property, triggering a Hatch Act violation, he said.
Not only was the writer in trouble for potentially violating the law, Flynn said, but so was the newsletter's editor. An investigation found that the writer wasn't subject to the Hatch Act, and charges against the editor ultimately were dropped, he said.
Even Carolyn Lerner, the U.S. special counsel who enforces the law, has argued for more leniency.
The Hatch Act has prevented state and local government workers from running for partisan elected office if their job was tied to federal funding — no matter how insignificant.
In a 2011 op-ed article in The New York Times, Lerner argued that the law is being used as a "political weapon" to knock out well-qualified candidates.
A police officer in Pennsylvania was unable to enter a school board race, she said, because his bomb-sniffing dog was funded with federal dollars. And the chief financial officer for a New York port couldn't run in a party primary for the county legislature because his employer received federal stimulus money to rebuild a dock and wharf.
In fiscal year 2011, the U.S. Office of Special Counsel handled 39 cases of state and local employees seeking partisan elected office. Twenty-three candidates ended up withdrawing from the race; the others resigned from their jobs.
The Hatch Act Modernization Act of 2012 attracted Republican and Democratic co-sponsors, including Rep. Elijah E. Cummings, a Baltimore Democrat.
For federal employees, the big change is the new range of penalties.
Previously, workers violating the Hatch Act faced two possible penalties: a 30-day suspension without pay or termination.
"It's been the death penalty to your federal career," said Kathleen Clark, an ethics lawyer in Washington and a law professor with Washington University in St. Louis.
Under the new law, workers still may be fired or suspended, but the menu of potential penalties now includes a reprimand, reduction in grade, a fine of up to $1,000 and a ban from federal employment for up to five years.
Clark predicts that the new penalties will lead to more reports of Hatch Act violations. The old penalties were so draconian that many people were reluctant to report violators.
"The standards are more likely to be enforced because the penalty is not absurd," Clark said.
The updated Hatch Act also removes a hurdle that prevented many state and local workers from running in partisan elections. Under new rules, only state and local workers whose jobs are fully funded by the federal government cannot be a candidates in those elections. So, local police officers can throw their hats in the ring even if their canine partners are paid for by Uncle Sam.
Changes in the Hatch Act also mean that the mayor and council members in the District of Columbia might face more challengers.
Until now, district employees and locally elected officials were treated like federal workers under the Hatch Act and couldn't run for mayor or the council, Clark said. Only the mayor, council members and the recorder of deeds were exempt from the ban, she said.
"This provision has actually operated as an incumbent-protection device," Clark said.
But now, district employees and locally elected officials come under the same rules as state and local employees, meaning that so long as their position isn't entirely funded by the federal government, they can run in a partisan election, Clark said.
Some labor experts say more work needs to be done on the Hatch Act.
"The biggest flaw of the Hatch Act — there is no statute of limitations," said Ward Morrow, assistant general counsel for the American Federation of Government Employees.
"The fact that there isn't one means they can go back to the Johnson administration, and I mean Andrew Johnson, to look for violations," he said. "At some point, people need to move on and close the books."
Hatch Act by the numbers
The U.S. Office of Special Counsel enforces the Hatch Act. Here is a summary of the agency's activities, as well as actions taken by covered workers running for office:
2009 2010 2011*
New complaints 496 526 451
Warning letters issued 132 163 164
Advisory opinions issued 3,733 4,320 3,110
Worker withdrawals from partisan elections 15 28 23
Candidates resign from job; stays in election 6 26 16
*Years ended Sept. 30
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