But how does the 72-year-old Hatch Act address the use of e-mail, BlackBerries, social media and the growing trend of federal employees working from home?
So far, it doesn’t say anything at all about those trends, and the office enforcing the law is desperately seeking some updates.
Carolyn Lerner, head of the Office of Special Counsel, is pushing Congress to update the Hatch Act and to address aspects of the law that often bar state and local government employees from running in local or state elections if their position or employer is funded with federal dollars.
Lerner, who assumed her position in in June, spoke Tuesday with The Federal Eye about her proposals:
The Federal Eye: What are the big changes your proposals would make?
Lerner: One is getting us out of the business of enforcing the Hatch Act in the context of state and local elections. The Hatch Act would still apply at the state and local level where employees are working in places that get federal funds, but it would mean that we couldn’t tell people they can’t run for office because their position is funded at all by federal funds.
After 9/11, there was a lot of money going to state and local governments from the federal government for security issues and police departments. But it’s also ambulance drivers, whose positions are funded by Medicaid or Medicare funds, who can’t run for county coroner. Deputy sheriffs can’t run for sheriff.
We’ve talked about a guy who’s in a K9 unit in Pennsylvania, and because his dog is funded for federal money, couldn’t run for school board. We had to be in the position of telling this gentleman who wanted to run for school that he couldn’t because his dog was funded from federal funds. That’s ridiculous, that’s absurd.
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How often do you hear from folks like this?
A lot. Cases come to us either when people ask us whether they can run for office, or when their opponents file a complaint with our office saying someone shouldn’t be in a race for school board or sheriff or whatever the local office is, because he works in a place that gets money from the federal government. And it keeps good people out of government.
(Lerner’s office later said that 80 percent of the cases they consider at the local and state level are campaign-related cases, when an opponent tries to block someone from running in a partisan race because of potential Hatch Act violations.)
Would these proposed changes make it easier for a federal employee to run for nonpartisan school board seat or a planning commission?
Our legislation doesn’t address that.
And what’s the other reform you’re pushing for?
It’s in the penalty area. Right now, the presumptive penalty is termination. That’s the only penalty that’s provided for. Technically, if you were to appeal to the Merit Systems Protection Board, they could mitigate the penalty down to 30 days, but really the presumptive penalty is termination.
That is unique in terms of adverse personnel actions in the federal government. Virtually every other type of misconduct in the federal government is punishable through progressive disciplinary action.
For example, you can get an oral reprimand, or a written reprimand. Get a demotion or suspension. There’s progressive discipline leading up to termination. But in the Hatch Act, only termination.
Our proposed legislation would put in a range of penalties.
One of the things I’ve heard from federal employees is they often don’t know about the Hatch Act’s limitations or the range of services available from the OSC. Is there any way to require agencies to train new recruits or other employees about the Hatch Act and the services available at your office?
If Congress mandated it.
We don’t have the authority to require agencies to do that kind of training. Whenever we’re requested to do training, we go out and do it, and I’d frankly love to have the resources to do more, but it’s a matter of fairness that if we’re going to expect employees to follow rules, we make sure they’re aware of what the rules are.
What about accounting for new technologies being used by federal workers?
Defining political activity is important, but that’s a question for Congress to answer. We want to work with Congress to come up with what are reasonable definitions, but ultimately that’s really Congress’s call.
When the act was first passed in 1939, and even 20 years ago when it was last amended, telework, BlackBerries, the Internet, e-mail, blogs, social media, none of that was really around.
(Lerner’s office provided a list of requests sent to Congress, calling on lawmakers to define the term “political activity” as referenced in the law, to determine how the law applies to teleworking programs and how the law should apply to laptops, BlackBerries and other devices.)
You’ve issued some advisories in recent months about the impending 2012 elections. Will the office be issuing any other campaign-related updates or advisories?
I’m not anticipating anything in that area, but I’m hoping Congress will act quickly to make the landscape clearer for federal employees before we get into the active campaign season.
We’re doing the best we can with the law as it’s written now, but clearly we need some changes.
Follow Ed O’Keefe on Twitter: @edatpost