We are once again heading into an election year. And as with any election cycle, there are perils and pitfalls that candidates and government employees need to be aware of. One of the least known, but at the same time most consequential laws impacting elections and candidates is the Hatch Act of 1939. The Hatch Act was initially implemented as the U.S. pulled itself out of the Depression and lunged headfirst into WW II as a mechanism to attempt to curb corruption within the Federal Government.

The Hatch Act prohibits federal employees from: 1) Running for partisan office; 2) taking an active part in a partisan campaign; 3) using their official authority to influence an election; 4) soliciting or receiving money in connection with a partisan candidate or election; 5) engaging in political activity while on duty or in a Federal Building.

Just the other day, the former Director of the United States Office of Government Ethics, filed a complaint against Trump Aide Kellyanne Conway, claiming that her statements about the Alabama Senate Race violate the Hatch Act.  Time will tell if his complaint has any teeth or if it will even be acted upon.

Don’t stop reading if you’re not a federal employee, because here’s where things get interesting from a Vermont perspective.  The Hatch Act also applies to state, municipal and in some limited instances even non-profit employees. The good news is that with the passage of the Hatch Act Modernization Act of 2012 (yes Act is repeated twice) the constraints on state and municipal employees have been severely curtailed. It used to be the case that many state or municipal employees whose position was even partially supported by federal funds, was subject to the terms of the Hatch Act in respect to running for partisan office.  With the passage of the 2012 amendments, in order to be covered by Hatch Act, an employee’s position needs to be completely funded by federal loans or grants.

So what’s the big deal with the Hatch Act you ask?  Well if an individual is found to have violated the Hatch Act, the penalty is severe. Either the agency employing the individual has to forfeit federal funds equivalent to 2 years of the employees salary or terminate the employee. You can guess the route that most governmental entities take when faced with a decision between the two.

In a state like Vermont, which receives quite a bit of federal funds, its entirely likely that dozens, if not hundreds of state and municipal employees, even with the 2012 amendments, are still covered by the provisions of the Hatch Act. There was once a time when prior to filing a formal complaint against an employee in Vermont, he or she might have received a caution or warning from an adversary. With the hyper-politicalization of today’s environment, this courtesy is likely going the way of the dinosaurs. Those engaged in partisan politics are increasingly out for blood. As a result, the Hatch Act is being increasingly weaponized, especially since it utilizes an anonymous complaint system, where the complainant is kept confidential (so much for being able to face one’s accuser).

The U.S. Office of Special Counsel (OSC) is the administrative agency (independent of the Department of Justice) that investigates Hatch Act complaints. If you are a state or municipal employee in Vermont, and you have any doubt whatsoever as to whether your position is subject to the Hatch Act, the wisest thing to do before taking any other step towards starting a partisan campaign for office (or engaging in any other prohibited activity) is getting an advisory opinion from the OSC as to whether you are subject to the Hatch Act’s terms.

As a final note, remember the Hatch Act applies only to partisan elections, meaning elections where designation of a political party is a part of the process. That means that it is not applicable to most municipal elections (school board and selectboard) in Vermont (the notable exception being the Burlington City Council), but it is of course applicable to running for state representative or state senate or any county or statewide election that is partisan in nature. And remember, if you plan on running as an independent, it doesn’t matter if others can run in the same contest with a party designation, the Hatch Act is applicable.

Finally, even under the terms of the 2012 amendments to the Hatch Act, state and municipal employees who receive even small amounts of Federal funding who engage in political misconduct such as: 1) using Federal monies to support a campaign; 2) using any equipment, resources or power of office to support a candidacy; and 3) asking subordinates to volunteer or contribute to a campaign, can still be prosecuted under the Act’s terms.

Good luck out there candidates and remember, in politics, as in sports, the best offense is a strong defense…..

The purpose of this blog is not supposed to be political, its a forum to discuss ethics and government in Vermont. If you want politics, you can check out my political blog over at Sugaring Off. With that said, it’s important to discuss the ethical dilemmas (and the associated procedural and policy hurdles) faced by the Burlington City Council last night as it decided who would be the new purchaser for Burlington Telecom. Again for a bit of history on the subject, I’d refer you to Sugaring Off.

With history out of the way, it becomes important to unpack exactly what transpired during the course of the Burlington City Council’s eight hour marathon session.  On November 13, 2017 the die was cast or so we were told by way of this Resolution that set a bidding process in place and brought back bidders who had already been previously excluded by the Council.  Bids called (“letters of intent” or LOI’s) were due “no later than November 20 at 9 a.m.”  Now that’s a pretty specific time on a pretty specific date.

Mayor Weinberger and Councilors

Instead what happened is that the Council opened up with a work session at approximately 5:30 PM in which both of the previous failed bidders, Schurz who teamed up with ZRF, offered commentary not only on their newly submitted bid that was published in time, but then continued to expand on the initial bid, on-the-fly, at the work session. Despite a number of well directed questions from a number of different councilors, there were still many questions left unanswered. One of the big questions left unanswered was raised by Taylor Dobbs, formerly of VPR and soon to be of Seven Days, which is how could the Council agree to sell an asset like BT, where the identities of the investors were unknown? There were a number of breaks that the Council took where councilors broke-up into what appeared to be ad hoc caucuses. Now so long as there was not a quorum (the Council rules define a quorum as a majority of the whole, in the case of a 12 member body 7 or more members) of the Council present. If a quorum isn’t present then the provisions of Vermont’s Open Meeting Law don’t kick in. But remember, laws set the baseline for conduct, not the ceiling. While breaking up into pods may have been legal, as a matter of policy, it was a poor decision. And as a matter of public perception and political intrigue, the optics were horrible, not to mention how future entities seeking to do business with Burlington will construe how Ting and KBTL were treated.

Ting Executives – Michael Goldstein and Monica Webb

If that wasn’t bad enough, what happened next was even worse. Schurz and ZRF came back to the Council, at 11:00 PM, after seemingly having negotiated a new deal out in the hallway and proposed a number of new terms, changed some of the old terms AND changed the lead entity on the bid from ZRF to Schurtz. Remember bids were due on November 20th at 9 AM and here was a new bid, with new terms being proposed at an hour where the Council (and likely a good chunk of the City) is normally in bed and required to the Council to “suspend the rules” (Council meetings end at 10:30 unless 2/3s of the Council votes to suspend the rules).  That bid likely generated this lede from Seven Days – “The Burlington City Council voted 8-2 early Tuesday to select Schurz Communications and ZRF Partners’ bid to buy Burlington Telecom — picking an option that was not on the table at the start of a lengthy and at times testy meeting.” And this one from VT Digger “Burlington Telecom will be sold to Schurz Communications — a last-minute arrangement decided through backdoor political maneuvering at a Burlington City Council meeting. The meeting, which ended in the wee hours of Tuesday morning, was rife with confusion and marked by outbursts.”  Now as a City, a municipal corporation, is that really the kind of publicity you want to be generating if you can avoid it?

Councilor Ali Dieng Questioning the City Attorney

At one point New North End Councilor Dieng referenced an email exchange that he had with the Burlington City Attorney. The essence of his claim was that the City Attorney had informed him that no new bids or altered bids would be allowed after November 20th. I do not know the contents of those emails, but Councilor Dieng’s statements raise a legitimate concern. Look as attorneys we are not perfect. We try to give our clients the best advice possible based on the facts and circumstances at the time that it is given. Advice can change with facts and circumstances. This recent Vermont Supreme Court case out of Winooski held that even if a “charter designates the city attorney as legal advisor to the city manager, it is settled in Vermont and other states that the actual client of the city attorney is the municipality.” The actual client of the city attorney is the city. Now imagine being the city attorney in Burlington. Your client is the City, you are hired and retained by the Mayor and your have 12 partisan Councilors continually asking questions about policy and process. Some decisions are bound to be Solomonic. And to make things even more complicated, any individual councilor can request that their inquiry be kept confidential pursuant to Council Rule 19.

Ultimately the Council didn’t even follow the voting method set forth in their own resolution of that very evening, requiring Councilors to vote for two of the competing entities in the first round of voting. The City Attorney then ruled at the meeting that Councilors couldn’t be forced to vote. Council Rule 16(3) requires – “All requests for resolutions, ordinance and miscellaneous materials, to be prepared by the city attorney must be in the City Attorney’s hands by twelve o’clock noon on the fourth business day (normally Tuesday) preceding a regular, or adjourned regular meeting.” Furthermore, “[t]he city attorney shall deliver to the office of the city clerk all resolutions or ordinances to be submitted no later than twelve o’clock noon of the second business day, (normally Thursday) preceding a regular, or adjourned regular meeting.” Which of course begs the question, how come if the resolution had to be submitted in advance, the issue of voting was not clarified earlier?

One final thought. There was an instance where Councilor Hartnett interrupted Councilor Shannon several times during debate and claimed she was “out of control and going down the wrong path” and later that she was expounding “bullshit.”  This type of engagement has no place in a civil democratic process. There are rules of procedure, but it is up to the Council President or Presiding Officer (in this case the Chief Administrative Officer Beth Anderson was presiding over the meeting because President Knodell wanted to participate in debate) to maintain order and decorum. For an interesting read, take a look at this memorandum written several years ago by the City Attorney’s Office on the way decorum can be kept at Council meetings.

Like politics – – policy and procedure is a complicated game and ethics just adds to the difficulty of keeping the balls in the air. Although this isn’t the blog where I usually expound on pop-culture, it’s clear that the current game the City is playing is a strange one and that the only winning move is….. not to play……

 

The term transparency has become a hackneyed buzzword as it applies to government.  The natural inference is that a transparent government, means an ethical government.  But that begs the question, why can’t we just trust that government, made up of people with good intentions, will just do the right thing? Ultimately government is made up of people, and people even those with the best of intentions, are human and subject to the entire panoply of misfeasance and malfeasance.

The Vermont Ethics Commission will soon be kicking off its inaugural meeting.  The Commission was created by the legislature over this past session and full details on the Commission and its purposes can be found here. Whether the Commission is successful, will ultimately depend on the time and resources it is allotted to carry out its functions.

We are fortunate to live and work in Vermont. Up until now, we have not been plagued with a host of ethical dilemmas like so much of the outside world. But times are changing.  The purpose of this blog is in part to explore that changing world and the flattening of the Earth, that in turn has created complicated ethical dilemmas, even in a small, relatively isolated state like Vermont.

Maple Syrup, Phish and Ben and Jerry’s are nice symbols, but represent the carefully curated, outward projections of our state. Here we’ll take an inward look and hopefully serve as a platform for debate and discussion of what it means to be ethical and how that term is being interpreted by the various entities charged with regulating ethics and associated conduct.

As the name for this post suggests, one of the first codified systems of ethics was the Bible. While that document may have served certain populations well for centuries, it was not designed to cover the complexities of contemporary life. In the posts ahead, we’ll look at some of the constructs that do serve that purpose, explore how they serve it and discuss ways of improving the system.