Special counsel calls for Hatch Act reform

October 6, 2011

The U.S. Office of Special Counsel is asking Congress to bring the Hatch Act into the 21st century.

The law, which prohibits political activity among most of the federal workforce while on duty, is desperately in need of an update to address issues ranging from technological advances to teleworking and simple fairness, the office said.

Special Counsel Carolyn Lerner on Thursday sent draft legislation to Congress to reform the 72-year-old law.

“The Hatch Act injects the federal government into state and local contests thousands of times a year, its penalties are inflexible and sometimes unfair, and it is out-of-date with the 21st century workplace,” Lerner said. “There’s bipartisan consensus that this law needs an update.”

The law received its last major revisions in1993, when the workplace was significantly different, she said. Back then, workers were not using laptops, BlackBerrys and other handheld devices; telework was not redefining the “federal workplace”; and workers were not navigating social media.

The law, Lerner said, must now more clearly define “political activity” and what constitutes a “federal workplace” because many workers can now perform their duties from their living rooms.

In addition, Lerner said, the law can be inflexible and unfair.

The Hatch Act provides only two penalties: Either a worker is fired or can face an unpaid 30-day suspension. Lerner wants a more graduated penalty process with more options, such as fines.

Her changes also call for greater clarity about exemptions among high-level workers and White House employees and an updated list of agencies where staff may face additional restrictions.

The initial purpose of the act was to protect workers from coercion in the workplace, but in recent years the law has been used as a partisan weapon, said Ann O’Hanlon, a counsel spokeswoman.

“About half of the cases are someone making mischief in a local state or government race,” she said.

According to the counsel, about 60 percent of the complaints are local or state issues, often in which someone is trying to disqualify another person on a campaign.

“Coercion is where we need the Hatch Act and where it is highly relevant,” Lerner said.

Another recent phenomenon is that state and local law enforcement employees are being denied their democratic right to run for partisan positions, she said.

After the 2002 creation of the Department of Homeland Security, many local law enforcement agencies received federal funding.

The office gave the example of a Pennsylvania canine police officer who was deemed ineligible to run for the school board because his black Lab was tied to DHS funding.

Provisions of the law are “keeping good candidates out of local politics,” Lerner said.

Lerner said she has met with Rep. Darrell Issa (R-Calif.), chairman of the Committee on Oversight and Government Reform, and is confident about winning support on Capitol Hill to reform the law.

“It’s non-controversial, it doesn’t cost money, and it gives power back to the state and local government,” she said.

In the past decade, the OSC has had to hire additional workers because of the increased caseload, Lerner noted.

In an e-mailed statement, Issa said he has been concerned about the work of the OSC, noting, “It has demonstrated an inability to conduct professional, non-partisan investigations in a timely manner.”

Reform, he said, would lighten the counsel’s workload.

“Over the last few years, OSC’s conduct has raised serious questions about the agency’s ability to fulfill its statutory mission,” the statement said. “Special Counsel Lerner faces considerable challenges in putting the agency back on the right track.”

Lerner began her five-year term in June.

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