Hatch Act: Small violation brings big penalty

With the daily barrage of campaign coverage for the 2012 elections, it’s easy to forget the vote is still 497 days away.

Politics is a great spectator sport. But unlike traditional sports, this is one where a certain group of spectators must follow rules and regulations just like the participants.

Federal employees make up most of that spectator group; District government workers and state and local employees who work on federally funded programs are in that group too. If they become cheering spectators while on the job, sometimes in the most benign way, they risk being fired for violating the Hatch Act.

The Hatch Act is designed to both protect employees from bosses who would pressure them to support a candidate and restrict the political activity of executive branch workers. The Office of Special Counsel enforces the act and maintains lists of helpful information on its Web site.

Yet, it’s still a very confusing situation, as was repeatedly pointed out at a House Oversight and Government Reform Committee hearing last week.

For example, the act allows a federal employee to run for elected office if it’s a nonpartisan position. But if that same job was a partisan position in another state, a federal employee would not be allowed to seek that office.

“So in South Carolina a federal prosecutor can run for state court judgeship because that’s nonpartisan,” Rep. Trey Gowdy (R-S.C.) said. “But if they want to step across the North Carolina line, they cannot run for judgeship in North Carolina because it is partisan?”

Gowdy was looking for an explanation, but Ana Galindo-Marrone, Office of Special Counsel Hatch Act unit chief, told him Congress would have to provide it. “We’re responsible for enforcing the law,” she said. “And currently, the law does make those distinctions.”

Gowdy captured other peculiarities, as recorded on this Federal News Service hearing transcript:

Rep. Gowdy: Can a federal prosecutor attend a political fundraiser?

Ms. Galindo-Marrone: Yes.

Rep. Gowdy: Can a federal prosecutor be on the host committee?

Ms. Galindo-Marrone: No.

Rep. Gowdy: Can a federal prosecutor speak at that fundraiser?

Ms. Galindo-Marrone: Are we talking about a U.S. attorney or —

Rep. Gowdy: An assistant United States attorney.

Ms. Galindo-Marrone: An assistant United States attorney. They would be able to speak at the fundraiser as long as they are not soliciting for political contributions.

Rep. Gowdy: They can contribute?

Ms. Galindo-Marrone: They can contribute.

Rep. Gowdy: They can’t solicit . . .

Ms. Galindo-Marrone: They could solicit for votes.

Rep. Gowdy: But not for money?

Ms. Galindo-Marrone: But not for money. (Laughs.)

Rep. Gowdy: Wow. Thank you.

Another “wow” moment: Galindo-Marrone said a federal employee would be in violation of the Hatch Act if she displayed in her cubicle a photo of herself with the president if he is a candidate for office — unless it’s an official photo.

And even official photos, “should be displayed in a traditional size and manner,” she added. No horns or halos may be drawn on them, she explained.

D.C. Del. Eleanor Holmes Norton (D) said the Hatch Act has been trivialized by rules that allow federal employees to sponsor events where finger food is served but not hot dogs.

Norton told the hearing she is “concerned that the law may make a mockery of itself because the Hatch Act says that there is only one penalty, as I understand it, for violation of the Hatch Act for a federal employee. And that is removal. Pretty nuclear, is that true?”

Galindo-Marrone said that “from time to time agencies seem reluctant to refer Hatch Act complaints” because “they might lose a good employee.”

Norton said that, far from a deterrent, the one-size-fits-all penalty of termination has the opposite effect. Agencies are reluctant to report violators “and therefore,” Norton reasoned, “the violations perhaps are encouraged to continue.”

Galindo-Marrone was careful not to state an opinion on various points suggested by the committee members, but she clearly did not discourage them from considering changing removal as the only penalty available for Hatch Act violators.

“Certainly if Congress wants to consider making revisions,” she told Norton, “that’s something that OSC would be willing and eager to assist with.”

Revisions are on the horizon, and they’ll probably find support from both Republicans and Democrats on a panel often riven by partisanship. Committee Chairman Darrell Issa (R-Calif.) opened the hearing by saying “inconsistencies within the act and/or loopholes need to be reviewed.”

And the top Democrat on the panel, Rep. Elijah Cummings of Maryland, said he looks forward to working with Issa “on bipartisan legislation to update and clarify the Hatch Act.”

federaldiary@washpost.com

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