Office of Special Counsel

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…..