[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
H.R. 4272, AN ACT TO AMEND CHAPTER 15 OF TITLE 5, UNITED STATES CODE
=======================================================================
HEARING
before the
SUBCOMMITTEE ON FEDERAL WORKFORCE,
POSTAL SERVICE, AND THE DISTRICT
OF COLUMBIA
of the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
ON
H.R. 4272
TO AMEND CHAPTER 15 OF TITLE 5, UNITED STATES CODE, TO PROVIDE FOR AN
ADDITIONAL, LIMITED EXCEPTION TO THE PROVISION PROHIBITING A STATE OR
LOCAL OFFICER OR EMPLOYEE FROM BEING A CANDIDATE FOR ELECTIVE OFFICE
__________
SEPTEMBER 11, 2008
__________
Serial No. 110-142
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
http://www.oversight.house.gov
U.S. GOVERNMENT PRINTING OFFICE
48-496 PDF WASHINGTON : 2009
----------------------------------------------------------------------
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
HENRY A. WAXMAN, California, Chairman
EDOLPHUS TOWNS, New York TOM DAVIS, Virginia
PAUL E. KANJORSKI, Pennsylvania DAN BURTON, Indiana
CAROLYN B. MALONEY, New York CHRISTOPHER SHAYS, Connecticut
ELIJAH E. CUMMINGS, Maryland JOHN M. McHUGH, New York
DENNIS J. KUCINICH, Ohio JOHN L. MICA, Florida
DANNY K. DAVIS, Illinois MARK E. SOUDER, Indiana
JOHN F. TIERNEY, Massachusetts TODD RUSSELL PLATTS, Pennsylvania
WM. LACY CLAY, Missouri CHRIS CANNON, Utah
DIANE E. WATSON, California JOHN J. DUNCAN, Jr., Tennessee
STEPHEN F. LYNCH, Massachusetts MICHAEL R. TURNER, Ohio
BRIAN HIGGINS, New York DARRELL E. ISSA, California
JOHN A. YARMUTH, Kentucky KENNY MARCHANT, Texas
BRUCE L. BRALEY, Iowa LYNN A. WESTMORELAND, Georgia
ELEANOR HOLMES NORTON, District of PATRICK T. McHENRY, North Carolina
Columbia VIRGINIA FOXX, North Carolina
BETTY McCOLLUM, Minnesota BRIAN P. BILBRAY, California
JIM COOPER, Tennessee BILL SALI, Idaho
CHRIS VAN HOLLEN, Maryland JIM JORDAN, Ohio
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
JOHN P. SARBANES, Maryland
PETER WELCH, Vermont
JACKIE SPEIER, California
Phil Barnett, Staff Director
Earley Green, Chief Clerk
Lawrence Halloran, Minority Staff Director
Subcommittee on Federal Workforce, Postal Service, and the District of
Columbia
DANNY K. DAVIS, Illinois
ELEANOR HOLMES NORTON, District of KENNY MARCHANT, Texas
Columbia JOHN M. McHUGH, New York
JOHN P. SARBANES, Maryland JOHN L. MICA, Florida
ELIJAH E. CUMMINGS, Maryland DARRELL E. ISSA, California
DENNIS J. KUCINICH, Ohio, Chairman JIM JORDAN, Ohio
WM. LACY CLAY, Missouri
STEPHEN F. LYNCH, Massachusetts
Tania Shand, Staff Director
C O N T E N T S
----------
Page
Hearing held on September 11, 2008............................... 1
Text of H.R. 4272................................................ 2
Statement of:
Maskell, Jack, legislative attorney, American Law Division,
Congressional Research Service; and Sandra Bell, general
counsel, Ohio Civil Service Employees Association, AFSCME
Local 11 AFL-CIO........................................... 34
Bell, Sandra............................................. 46
Maskell, Jack............................................ 34
McPhie, Neil A.G., chairman, Merit Systems Protection Board;
and Anthony Guglielmi, Director of Congressional and Public
Affairs, U.S. Office of Special Counsel.................... 13
Guglielmi, Anthony....................................... 20
McPhie, Neil A.G......................................... 13
Stupak, Hon. Bart, a Representative in Congress from the
State of Michigan.......................................... 5
Letters, statements, etc., submitted for the record by:
Bell, Sandra, general counsel, Ohio Civil Service Employees
Association, AFSCME Local 11 AFL-CIO, prepared statement of 48
Guglielmi, Anthony, Director of Congressional and Public
Affairs, U.S. Office of Special Counsel, prepared statement
of......................................................... 22
Maskell, Jack, legislative attorney, American Law Division,
Congressional Research Service, prepared statement of...... 37
McPhie, Neil A.G., chairman, Merit Systems Protection Board,
prepared statement of...................................... 16
Stupak, Hon. Bart, a Representative in Congress from the
State of Michigan, prepared statement of................... 8
H.R. 4272, AN ACT TO AMEND CHAPTER 15 OF TITLE 5, UNITED STATES CODE,
TO PROVIDE FOR AN ADDITIONAL, LIMITED EXCEPTION TO THE PROVISION
PROHIBITING A STATE OR LOCAL OFFICER OR EMPLOYEE FROM BEING A CANDIDATE
FOR ELECTIVE OFFICE
----------
THURSDAY, SEPTEMBER 11, 2008
House of Representatives,
Subcommittee on Federal Workforce, Postal Service,
and the District of Columbia,
Committee on Oversight and Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:03 p.m., in
room 2154, Rayburn House Office Building, Hon. Danny K. Davis
(chairman of the subcommittee) presiding.
Present: Representatives Davis, Norton, Cummings, Kucinich,
and Marchant.
Also present: Representative Stupak.
Staff present: Lori Hayman, counsel; William Miles,
professional staff member; and Marcus A. Williams, clerk.
Mr. Davis. The subcommittee will come to order.
I welcome Ranking Member Marchant, members of the
subcommittee, hearing witnesses, and all those in attendance to
the Subcommittee on Federal Workforce, Postal Service, and the
District of Columbia's legislative hearing on H.R. 4272, an act
to amend the Hatch Act to provide for an additional, limited
exception to the provision prohibiting a State or local officer
or employee from being a candidate for elected office.
[The text of H.R. 4272 follows:]
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Mr. Davis. The Chair, ranking member and subcommittee
members will each have 5 minutes to make opening statements.
And all Members will have 3 days to submit statements for the
record.
Hearing no objection, so is the order.
I will begin. The subcommittee today convenes to discuss
H.R. 4272, a measure introduced by our colleague,
Representative Bart Stupak of Michigan, to provide certain
State and local officers and employees an exemption to the
Hatch Act provision prohibiting them from being a candidate for
office in a partisan election.
While today's hearing is narrowly focused on the Hatch Act
and its impact on State and local government employees, the
larger question at hand is, to what extent should citizens be
restricted from pursuing elected public office for the purpose
of promoting efficient and effective governance?
On this, the 7th anniversary of the attacks on 9/11, let us
remember those that lost their lives, as well as the rights and
freedoms that we as Americans hold so dear. Like the right to
vote, the right to be a candidate for an elected office is also
fundamental to our unique democratic republic. Yet the Hatch
Act attempts to balance this right with concerns over the
potentially negative influence of political activity in the
administration of general government operations or programs.
Consequently, for decades, most Federal executive branch
employees have been subjected to a number of restrictions and
rules that details when, where, how and who can participate in
political activity or partisan elections. Many of these same
restrictions apply to certain State and local employees,
particularly those employees of offices whose principal job
functions are supported fully or in part by Federal grants or
loans.
Although nothing in current statute prohibits State and
local employees from running for any elected office if he or
she runs as a nonpartisan candidate, we continue to witness a
slew of policy challenges, unintended consequences and
questions resulting from this specific Hatch Act provision.
This leads us to the subject of today's legislative
hearing, which is an examination of the impact that the
prohibition on pursuing elective office has on less densely
populated areas, the exact issue H.R. 4272 seeks to address. It
is my hope that today's hearing will allow us the opportunity
to further explore some of these matters.
And I would like to thank today's witnesses for joining us
in this afternoon, and I look forward to their testimony.
I would like to yield now to the ranking member, Mr.
Marchant, for any opening comments that he might have.
Mr. Marchant. Thank you, Mr. Chairman. Thank you for having
this hearing today.
The Hatch Act of 1939 is a Federal law whose main provision
is to prohibit Federal employees there engaging in partisan
political activity. It applies by extension to certain
employees of State and local governments whose positions are
primarily paid for by Federal funds. However, there are many
individuals, such as hospital employees who deal with Medicare
and Medicaid, who cannot run for public office because their
business receives Federal dollars.
The original intent and purpose of the Hatch Act was to
keep partisan politics out of government work. But just because
a person may indirectly receive Federal funds does not mean
that they have control over those funds or that their
government work can actually be influenced by partisan
politics.
This becomes even more complicated when the case of a town
or county sheriff is considered. Law enforcement is a major
recipient of Federal funds, so what does it mean for a deputy
who wishes to run for sheriff, which is a public position?
Additionally, many public positions at the local pay level
either pay very little or nothing at all, certainly not enough
for a person to quit their day job in order to serve the
position.
As a result, the Hatch Act, in its current iteration,
severely limits which residents can be elected to serve in
local public office.
H.R. 4272 applies this legislation to cities with less than
100,000 residents. I look forward to hearing from the witnesses
about their thoughts on applying this bill to cities with less
than 100,000 or perhaps there may be a better way of
accomplishing the same goal by using a population as a
deterrent.
Any possible changes to the Hatch Act should be conducted
in a very judicious matter and after careful consideration by
this subcommittee.
I appreciate the work of Mr. Stupak on this issue. I look
forward to hearing from him and the witnesses today. Thank you.
Mr. Davis. Thank you very much, Mr. Marchant.
And now we will actually move to our first witness, who
does not need to be sworn in because he is a Member of Congress
and has been sworn in when he took his oath of office.
Our witness is the Honorable Bart Stupak, who represents
Michigan's First Congressional District, which is
geographically one of the largest districts in the country.
Congressman Stupak is a member of the House Energy and Commerce
Committee and serves as chairman of the Oversight and
Investigations Subcommittee.
Prior to coming to Congress, Mr. Stupak was a police
officer for 12 years, which led him to create and chair the
Congressional Law Enforcement Caucus, a bipartisan organization
of more than 100 House Members, which provides the Nation's law
enforcement community with opportunities to participate in the
legislative process.
Representative Stupak, we thank you so much for being with
us, and we are delighted that you have come to share and
testify on your legislation this afternoon. The floor is yours.
STATEMENT OF HON. BART STUPAK, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF MICHIGAN
Mr. Stupak. Thank you, Mr. Chairman, for holding this
hearing; Mr. Marchant, for being here and conducting this
hearing.
I ask that my full statement be made part of the record,
along with the list of examples I have submitted, attached to
my testimony, of members of my district, my constituents who
have been affected adversely by the Hatch Act; and also a
correspondence from Mr. William D. Schneider, who was also
affected but he actually wrote a letter that he wished to be a
part of the congressional record. So, without objection, I
would ask that be made part of the record.
You both summarized what we are trying to accomplish here
with this. My district, as the chairman says, is one of the
largest districts in the Nation. I have some counties which
have very large land mass but very few people, like 10,000
people. The biggest employer in many of my 31 counties that I
represent is a hospital, the local hospital.
And if you are an employee of that hospital, the literal
reading of the Hatch Act--because most of our offices in
Michigan is partisan, from county commissioners, city
commissions, drain commissioners. It is always a partisan
office. Even judges, in some areas, while not technically
partisan, are nominated by the parties; therefore, they are
considered partisan. Even though you don't say Democrat or
Republican behind it, or independent, the party nominates you.
So what we have found in the last 3 years, if someone
doesn't think you should be on the county board of
commissioners, they raise the Hatch Act if you work at the
hospital, because the hospital receives Federal funding--
Medicare reimbursements, Medicaid, sometimes direct grants and
appropriations--and people are disqualified.
The sheriff--we have had at least three or four sheriff's
candidates. Maybe the sergeant was going to challenge the
incumbent sheriff. Right away they used the Hatch Act, because
they received Federal money for enforcement of the seat belt
law, enforcement of minor in possession to enforce alcohol laws
for minors. And these people were considered disqualified
underneath the Hatch Act.
We had one city go so far as to say, fine, during this
election year of 2008, we will not accept any Federal money
even though the purpose is to crack down on underage drinking,
speeding, seat belt use; we are just not going to accept it.
They had $594. I mean, that was the extent of it. It is not,
like, huge sums of money. But because the person was a
supervisor who supervised a program, they could not run for
office.
It is a constant problem, especially in small, rural areas.
It is hard to find people to fulfill a position like county
commissioner or city council because of all the headaches you
put up with. Everybody in the town knows you, and if something
goes wrong, your street isn't plowed in the wintertime, your
phone is ringing constantly. And so it is hard to find good,
qualified people who are willing to do it. And then when you
suddenly raise the Hatch Act, that somehow casts negative
aspersions, like you are violating the Federal law, people have
resigned, people have not accepted appointments. It has been
used more as a political weapon as to the true intent and
spirit of the law.
So the only suggestion I could come up with was counties
less than 100,000, that the Hatch Act not apply. I am open to
any suggestion to try to resolve this.
I think the literal interpretation of the law has been
carried to extremes, where people who are an employee of an
agency that may receive Federal funds, they are disqualified
from being in a partisan office. And according to our
constitution in Michigan, just about every office is partisan.
It really disqualifies a lot of people who have good
intentions, public service at the heart of what they are trying
to do. But it is being used as a political weapon by both
parties, and no one is immune from this one.
So I am open to suggestions. I wish we could move this
legislation. We have already had the primary season; it is
probably too late for this year. But next year, 2009, our city
elections, which are partisan--and I am going to be facing this
same issue again next year in 2009.
So anything we can do to move this process along to, you
know, protect the intent and spirit of the Hatch Act but not
disqualify qualified people because their agency may receive
some Federal money, I am open to suggestions.
And I would extend my discussion and my testimony here. I
am happy to answer any questions you may have.
[The prepared statement of Hon. Bart Stupak follows:]
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Mr. Davis. Thank you very much, Representative Stupak. I
have only got a couple of questions. And I thank you for your
testimony and for your leadership.
I would like to ask if you would like to join the panel
once we have finished with questioning and participate in the
hearing.
Mr. Stupak. I would be happy to.
Mr. Davis. Then, at that rate, I would like to ask
unanimous consent that Representative Stupak be allowed to join
us and participate.
Mr. Marchant. Yes.
Mr. Davis. Hearing no objection, we would be delighted to
have you.
The other question that I have is your bill creates a
100,000 population threshold level for exemption from the Hatch
Act that prohibits State and local employees from running for
office. Is there a particular reason for the 100,000 threshold?
Mr. Stupak. I have half the State, geographically. None of
my counties--I think the biggest county is 70,000. So I could
take it all into my whole district in consideration. So it
would be at least resolved throughout my district. That is the
only reason I put 100,000.
Like I said, I am open to suggestions, whatever ideas you
have. I don't want to necessarily put an arbitrary number, and
if your county goes over so, I mean, you have the same
problems. But I am open to suggestions. That is how I came up
with it.
Mr. Davis. One of the reasons I think I asked the question
is that there are jurisdictions that, for example, in my State
where individuals seek to run for the State legislature--people
can run for the city council, because our city council
elections are nonpartisan. But if they run for the legislature
and happen to work for the State or any place where Federal
funds are being used to fund a part of their salary, then, of
course, technically they cannot run. And some of those
districts may have a bit more than 100,000 population, and that
was my rationale for asking the question.
Mr. Stupak. I agree. And if there is some way we could
tighten up this language--before I ran for State office, State
House of Representatives, our law firm represented the city in
litigation and also some other matters in which Federal money
came in. So, to avoid that issue, I resigned from the law firm
to run for public office. Now, I had the ability to do that.
Not every candidate has the ability to do that.
Did I have any control over that Federal money? No. Did I
direct the Federal money? Did I do anything like this? Was I
the grant-writer? No. I was a lawyer who represented the city
in legal matters, and therefore I would have been disqualified
underneath the Hatch Act to even seek the nomination of my
party because of this. It would have been used as a political
tool against me.
So I am open to any suggestion you have. I don't know if it
is tightening the language or what.
But for a person who works at the hospital, because the
hospital receives Medicare and Medicaid money, to be
disqualified, as in this person who was appointed by the county
board of commissioners upon the death of a commissioner in
Schoolcraft County, which is a county of maybe 30,000, and then
the opponents had him disqualified and basically publicly smear
him for violating the law, the trust, because he worked at the
hospital as a social worker. He had no control of the budget,
no control of the money. He was paid by Schoolcraft. He had
nothing to do with Federal money coming in, other than Federal
money flowed into the program he administered for Medicaid
people, people on Medicaid.
That is what I am trying to get at. Any suggestions you
have, I am open to suggestions.
Mr. Davis. Thank you very much.
Mr. Marchant, do you have any questions for Representative
Stupak?
Mr. Marchant. No, I don't. I look forward to the panel.
Thank you.
Mr. Davis. Then thank you very much. And if you care to
join us, please do so.
We will then proceed to our next witness.
And our next witness is Neil A.G. McPhie, who is chairman
of the Merit Systems Protection Board, which is an independent
quasi-judicial agency established to protect Federal merit
systems against partisan political and other prohibited
personnel practices and to ensure adequate protection for
employees against abuses by agency management.
Prior to serving in this capacity, Chairman McPhie worked
as the executive director of the Virginia Department of
Employment Dispute Resolution.
We also have Mr. Anthony Guglielmi. He is the director of
congressional and public affairs at the U.S. Office of Special
Counsel, an independent Federal investigative and prosecutorial
agency. The OSC protects Federal employees and applicants from
prohibited personnel practices.
Before being appointed to this position, Mr. Guglielmi
served as the deputy director and chief of staff for the Armed
Forces Foundation and director of communication for the New
York State Senate and Connecticut Board of Parole.
If you gentlemen would stand and raise your right hands to
be sworn in, as it is the policy of this committee to swear in
all witnesses.
[Witnesses sworn.]
Mr. Davis. The record will show that the witnesses answered
in the affirmative.
We thank you all very much for coming and for being here.
And we will begin, Chairman McPhie, with you.
STATEMENTS OF NEIL A.G. MCPHIE, CHAIRMAN, MERIT SYSTEMS
PROTECTION BOARD; AND ANTHONY GUGLIELMI, DIRECTOR OF
CONGRESSIONAL AND PUBLIC AFFAIRS, U.S. OFFICE OF SPECIAL
COUNSEL
STATEMENT OF NEIL MCPHIE
Mr. McPhie. Thank you, Chairman Davis and Ranking Member
Marchant, for the opportunity to come before you and share
information on the role of the MSPB in enforcing the Hatch Act.
I have been asked to address three areas: first, the MSPB
views on the bill itself, H.R. 4272; to the extent of MSPB's
Hatch Act case law; and the nature of the decisions rendered in
cases involving State and local defendants.
Mr. Chairman, because the Board is a quasi-judicial agency
and we hear these Hatch Act cases, we can take no position on
the merits of the bill. Our view is whatever you pass, we must
adjudicate.
Moreover, H.R. 4272 will have minimal impact on the Board's
caseload. Hatch Act cases involving State or local government
employees represent less than 1 percent of MSPB's overall
caseload.
My testimony, therefore, will focus more on the MSPB's
procedures for adjudicating these cases and the extent of a
Hatch Act caseload with a summary of the outcomes of the cases
that we have had.
MSPB adjudicates cases on the act when the special counsel
files a complaint seeking disciplinary action for an alleged
violation of the act. That complaint is heard by an
administrative law judge, whose services are provided to the
Board under a special interagency agreement with the NLRB.
Generally, hearings are open to the public, and the
procedures applicable to MSPB appellate cases also apply to
Hatch Act cases. The Board does not have authority to consider
a complaint alleging a violation of the act by an individual
who is a Presidential appointee with Senate confirmation. The
Board's decision that a State or local agency employee violated
the Hatch Act is reviewable by an appropriate U.S. district
court.
If the ALJ or the Board, on a petition for review,
determines that an employee of a State or local agency whose
principal employment is in connection with an activity financed
in whole or in part by Federal funds has violated the act, the
outcome, as mandated by the act, is the penalty of removal or
the determination that no penalty is warranted. There is no in-
between ground.
In an action where the determination of removal is
warranted, the ALJ or the Board on review will notify the
employing agency and the employee that the employee must be
removed and not reappointed within 18 months of the date of the
decision. If the State or local agency fails to comply with
such an order or reinstates the employee within 18 months of
the removal, the ALJ or the Board may order the Federal entity
providing funding to the agency to withhold funds from the
agency. The amount to be withheld may be the equivalent of 2
years of pay for the subject employee.
Now, in terms of the Hatch Act cases, MSPB receives
approximately 8,400 appeals each year. Its Hatch Act caseload
is a small percentage of those appeals. From January 2002 to
July 31, 2008, the Office of Special Counsel brought 41 Hatch
Act cases before the Board. Of that total, 23 cases involved
State or local employees.
The most frequent types of Hatch Act violations that were
committed by State or local agency employees included running
as a candidate in a partisan election and using official
authority to influence the outcome of such an election. Final
disposition in these cases include settlement of eight cases, a
finding that no Hatch Act violation occurred in one case,
dismissal of two cases, and removal of nine employees. One
employee retired prior to completion of the case, and two cases
are currently pending.
As the data shows, the Hatch Act case is a very small part
of the Board's caseload. But regardless, the disposition of
these cases are significant to the Board's statutory mission of
ensuring a merit-based Federal civil service system. As a
result, the Board tries to adjudicate these cases promptly and
efficiently and in a manner that comports with the
congressional intent underlying the act.
I remain open to any questions the committee may have.
[The prepared statement of Mr. McPhie follows:]
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Mr. Davis. Thank you very much, Chairman McPhie.
And we will proceed now to Mr.--let me make sure that I am
pronouncing your name correctly.
Mr. Guglielmi. It is pronounced ``Smith,'' Mr. Chairman.
[Laughter.]
No. ``Guglielmi.''
Mr. Davis. Guglielmi.
STATEMENT OF ANTHONY GUGLIELMI
Mr. Guglielmi. Thank you, sir.
Chairman Davis, Ranking Member Marchant and members of the
committee, good afternoon, and thank you for the opportunity to
provide our perspectives on H.R. 4272.
At the outset, I would like to request that my written
statement also be included in the record.
My name is Anthony Guglielmi. I am the director of
congressional and public affairs for the U.S. Office of Special
Counsel, an independent investigative and prosecutorial agency.
I am accompanied today by Ms. Ana Galindo-Marrone, chief of
our Hatch Act unit.
As each of you know, the Hatch Act restricts the political
activity of certain State and local government employees. Among
other things, the act prohibits such employees from being
candidates in partisan elections. H.R. 4272 would create an
exception to this prohibition by allowing employees to run in
partisan elections for local office in counties or
municipalities with populations of less than 100,000.
The Office of Special Counsel takes no position on H.R.
4272, but offer a recommendation to address concerns underlying
this bill.
First, OSC is concerned that this bill's choice of 100,000
as the population threshold for its candidacy exception will
have a broader effect than intended. According to Census Bureau
estimates, 75 percent of Michigan counties have populations of
less than 100,000. Further, 99.6 percent of Michigan
municipalities have populations of less than 100,000, including
the cities of Dearborn, Canton and Kalamazoo. Thus, the bill
impact extends beyond rural-area employees.
There will also be disparate outcomes for employees in
cities that are close in proximity and size. For example, in
Michigan, the cities of Dearborn and Livonia are less than 20
miles apart. Both are just outside the city of Detroit.
However, in 2002, Livonia had about 2,600 more people than
Dearborn, pushing it above the 100,000 population cutoff. Thus,
a Michigan State employee could have run for public office in
Dearborn but not in Livonia.
Also, in 2003, Livonia's population dropped below 100,000.
So an employee would have been able to run for office in 1 year
but not the next.
It is also likely that this bill will increase OSC's
workload. In addition to determining whether a State or local
employee has the duties in connection with federally funded
programs, this bill would require us to research the population
of a locality where the employee wants to run. Because
populations are ever-changing, our research will have to remain
current and continuous.
OSC's greater concern with this bill is the potential
confusion it could create for Hatch Act-covered employees.
While such employees would be permitted to run in partisan
elections, they still would be subject to the act's other two
prohibitions against coercion and misuse of official authority.
OSC believes that this may cause confusion, resulting in
violations of the act. We have seen this occur with the
candidacy exemption currently in place for individuals holding
elective office. Many times, elected officials often believe
they are exempt from all of the provisions of the act, even
though they remain subject to the other two important
provisions, thus potentially leading to more egregious Hatch
Act violations.
For example, OSC filed a complaint with the Merit Systems
Protection Board against an elected county official for
multiple violations of the Hatch Act. The official, during job
interviews, made it clear that contributions to his political
party were expected. He also directed a subordinate to solicit
other employees to attend fundraisers, contribute to his party,
and volunteer for his re-election campaign.
This example is an egregious one, but unfortunately it is
not the only one. OSC has seen an increase of allegations of
both candidacy and coercion. These cases involve employees in
positions of authority who are running for office and are
reported to be using their positions to bolster their campaign
credentials and/or coerce subordinates to support their
campaign.
Partisan candidacy magnifies the risk that these activities
will intrude in the workplace. These cases are also difficult
to investigate and prove, because witnesses are reluctant to
cooperate for fear of reprisal.
OSC understands and respects Representative Stupak's
concern for employees in rural areas. However, Congress does
not need to amend the Hatch Act to address that concern. The
Hatch Act does not prohibit employees from being candidates in
nonpartisan elections. Therefore, the Congressman's concerns
could be resolved at the State and local level.
State and local governments are in the best position to
recognize whether a local community lacks eligible candidates.
If they identify such a problem, they choose to resolve it by
designating those elections as nonpartisan. In fact, in our
experience, we have found that many localities have designated
their elections nonpartisan. Thus, the concerns underlying H.R.
4272 can be addressed without compromising the integrity and
neutrality of Federal programs.
Thank you very much for your attention. I would be happy to
answer any questions.
[The prepared statement of Mr. Guglielmi follows:]
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Mr. Davis. Thank you very much.
And we will begin the questioning process.
Let me begin with you, Chairman McPhie. In your testimony,
you stated that, since January 2002, the Office of Special
Counsel has brought 41 Hatch Act cases before the MSPB, of
which 23 involved State or local employees.
How many of the 23 cases involved State or local employees
running in partisan elections? And are there any commonalities
among these cases? For example, are there any recurring
arguments for why employees continue to run for office despite
Hatch Act restrictions?
Mr. McPhie. Mr. Chairman, I could answer that in a context
of some of the defenses offered by these employees when these
cases are brought. I asked that same question myself.
Although a particular defense is going to be necessitated
by what the circumstances are, to the extent one can
generalize, these are the kinds of defenses that seem to come
about: ignorance as to the existence of the Hatch Act;
ignorance as to the political activities prohibited by the
Hatch Act--for instance, limitations on the use of government
e-mail by government employees to send partisan political
communications, there is uncertainty; lack of understanding as
to whether an employee's position is covered by the Hatch Act,
particularly with respect to certain employees of State and
local agencies who may not realize that their employment
relates to an activity which is financed in whole or in part by
loans or grants through this Federal Government.
Also, another common defense is that the penalty is too
severe, the penalty proposed by OSC is too severe.
I think I have answered the question. If I haven't, I----
Mr. Davis. Well, let me ask you, in your statement, you
also stated that Hatch Act cases involving State and local
employees represent less than 1 percent of the MSPB's overall
caseload. Has this percentage remained consistent since the
last major reform of the Hatch Act, which was in 1993?
Mr. McPhie. I cannot answer that with certainty, but I
believe that is true. I have given you 41 cases over 6 years. I
am not aware of any spike in these cases, certainly not during
my tenure on the Board.
Mr. Davis. Thank you very much.
Let me ask you, Mr. Guglielmi----
Mr. Guglielmi. Mr. Chairman, ``Anthony'' is fine.
Mr. Davis. Andy? All right.
In testimony that we are going to hear shortly, it has been
claimed that, in 1974, major changes to the Hatch Act were made
which eliminated most of the Federal restrictions on off-duty,
free-time, political activities for State and local
governments. In 1983 and 1987, surveys were conducted by House
committees which showed that these changes did not increase the
incidence of reported violations or abuses.
Based on this history, why then do you feel that allowing
State and local employees to run for partisan office would
cause current employees to ignore and violate the other Hatch
Act restrictions that would remain in place?
Mr. Guglielmi. Mr. Chairman, if it pleases the committee, I
would like to invite Ms. Galindo-Marrone, who is the chief of
the Hatch Act unit, to answer that question, as she has
experience as an attorney.
Mr. Davis. Please, by all means.
Ms. Galindo-Marrone. Good afternoon, Chairman Davis.
Although the restrictions of the Hatch Act were certainly
loosened for State and local employees starting in 1974, three
key prohibitions remained in place: the candidacy prohibition,
as well as the coercion and use of official authority
prohibition.
And based on our experience, people are at their most
partisan when they are engaged in candidacy, when they are
candidates and they are running for office. So that, although
the restrictions that were loosened in 1974 allowed individuals
to engage in political activity off-duty, with respect to the
prohibition on candidacy, it is very difficult for someone to
remove their partisan hat when they get to the workplace. When
you are running for office, you are running for office 24/7.
Mr. Davis. Let me ask you, why would it be that an
individual would be more enthused about campaigning or running
if they were running for a partisan office or under a partisan
banner than they would if they were running under a nonpartisan
banner?
Ms. Galindo-Marrone. Certainly. With respect to the Hatch
Act, the activity that it is intended to capture or interdict
is partisan activity. So, although I understand your question
in terms of the enthusiasm that might be shared in both
instances, the Hatch Act only prohibits partisan activity.
Mr. Davis. I asked that because, based upon my experiences
in a town of course that is kind of well-known for its
politics, our most vociferous elections are actually the local
city council elections, and they are nonpartisan. I mean,
people really get into who is going to be their member of the
city council, more than they do who is going to be their
Congressman or whatever. I mean, I don't know if that is the
case in some other places, but certainly in the community where
I live, I mean, that is pretty much the case.
Well, let me go to Mr. Marchant and provide him the
opportunity to ask questions.
Mr. Marchant. Well, first of all, I have been in Texas
politics for 28 years, and I don't recall this ever being the
subject of a challenge for an election. So this a new subject
for me. I was a council member, a mayor, State legislator, and
then now in Congress. And I never remember this being a
substantive issue or the subject of a challenge for a
candidacy.
So I guess my question to the panel is, would this affect
some States much more than it would other States? Would any of
the States view this to be preemptive or something that we
would be overriding their State authority?
And the last question is, is the 100,000 number a number
that moves things one way or the other? I mean, if it were a
million or if it were 10,000--is that 100,000 number a
meaningful number? Or is it--I think Mr. Stupak identified it
as just kind of a beginning place. So I would ask that question
of either of the two or of your counsel.
Mr. Guglielmi. Congressman, I will answer the latter part
of the question. Definitely, I mean, it doesn't matter the
number, the impact on the Office of Special Counsel would be
the same. We would still have to rely on, you know, census
data, and it would still apply a greater burden, you know, than
we are currently experiencing.
Mr. Marchant. OK.
Mr. Guglielmi. And then as far as the--I mean, I have no
comment on how the States would perceive the legislation, sir.
Mr. Marchant. Would one State be affected more than another
State? Do these cases get tried in every State, or are there
States that are more active in their pursuit of Hatch cases?
Ms. Galindo-Marrone. It applies across the board, and we
receive complaints from all 50 States. But it does seem to also
be cyclical in nature. And what I mean by that, sometimes it
may be Michigan, other times it may be Ohio, Pennsylvania.
Depending on the election season, the Hatch Act sometimes
reaches greater awareness with the candidates and the citizenry
than in other times. So it is very active currently in
Michigan.
Mr. Marchant. OK. And I have a followup question that----
Mr. McPhie. In terms of impact, let me put it to you this
way. The Board isn't planning to ramp up any of its resources
in anticipation of an increase in Hatch Act cases. I mean, the
history speaks for itself, so far as we are concerned. Forty-
one cases over 6 years is, by any stretch of the imagination, a
very small number. I recall almost--I have been there since
2003, and I have seen very few of these cases. There is no
steady diet of these cases at all.
In terms of impact, 100,000, 200,000, I can't begin to
answer that question. It is not something that we concern
ourselves with. We follow whatever the statute says. And if a
case is brought by special counsel, then it proceeds on the
merits in that case pursuant to the statute. If the statute
says 100,000, we take it from there. If it says 200,000, we
take it from there. It doesn't matter to us.
Mr. Marchant. As I understand it, Representative Stupak's
bill addresses basically the disqualification for election. Do
you have cases where there was no disqualification? Someone
took office and then someone pursued their removal or their
prosecution as a result of having violated the Hatch Act, but
no one brought it up, but they are serving and----
Ms. Galindo-Marrone. We get a number of cases of what we
call in the office ``past candidacies,'' where, by the time the
complaint is filed, the person has already won the office and
is serving. And in those cases, for the most part, we
typically--if we find that the person--we still have to
investigate the case and make a determination. In those cases,
we typically issue a warning letter. The penalty does not allow
for a disciplinary action that someone be removed from their
elective office. So what would still be at issue is their
employment. And in some instances, the person is no longer
employed.
But even then, with past candidacies, our focus is on
trying to educate and advise the person for the future. We
recognize how significant the penalty is, in terms of finding a
Hatch Act violation. So you will find that with a majority of
the cases, we issue warning letters. And only in those
instances, I would say 99 percent of the candidacy cases,
whether Federal or State and local, are those cases where we
actually warn the person that they were covered by the Hatch
Act and gave them an opportunity to come into compliance with
the law. And it is in those cases where we typically then seek
disciplinary action if the person chose not to come into
compliance with the law.
Mr. Marchant. And they could come into compliance either by
resigning or----
Ms. Galindo-Marrone. Or withdrawing from the race, correct.
Mr. Marchant. So it is possible and probable that there are
many office-holders in office today that there was no complaint
filed and they are, in fact, in violation of the Hatch Act?
Ms. Galindo-Marrone. It is probable.
Mr. Marchant. And would probably receive warning letters if
a complaint was filed?
Ms. Galindo-Marrone. Correct.
Mr. Marchant. Well, thank you very much.
Mr. Davis. Thank you very much, Mr. Marchant.
Mr. Stupak.
Mr. Stupak. Well, thank you, Mr. Chairman. And thank you
for your courtesy.
Let me just say that Ms. Marrone and others have--we
actually did a video conference into my district because we had
so many of these when Delta County, Schoolcraft County and
Marquette County had to try to resolve this. And unfortunately,
the Hatch Act, the way it is written, allows no leeway for
these folks who are trying to enforce the law.
For instance, I mentioned Ishpeming, the chief of police
there, he was given a warning letter that he was in violation
because they had three highway traffic safety grants, a total
of $594 for his whole department. He is the chief. He probably
didn't put in the overtime, never got paid for it. But because
his department received $594, he is disqualified underneath the
Hatch Act to run for sheriff.
Do you have any suggestions how we would do it other than
the 100,000? Should it be a percentage? If your position is
funded 50 percent or more by Federal funds or something like
that?
I mean, we had the Delta County where the person was an
employee of public transportation, where every year they
received Federal money for buses. He was disqualified because
the public buses were paid for by the Federal Government.
Do you have any suggestions how we can do it other than the
100,000? I mean, it sounds like the law doesn't leave you any
discretion. And these examples I bring out, to most of us it is
not ignorance of the county board of commissioners when they
appoint someone or when someone runs for sheriff, because their
department of 10 people might have received $594 or $59 per
member of the department, are suddenly disqualified because
that $59 was Federal money. It doesn't make sense that you
would apply the Hatch Act like that to people.
Any suggestions from our witnesses on how else to do it?
Mr. Guglielmi. Congressman, your concerns are absolutely
valid. And, I mean, today we have prepared, you know, for this
legislation. If it pleases the committee, I can confer with the
special counsel and possibly come up with some technical
recommendations to your office. You know, give us a chance to
regroup and take a look at everything and see if we can help
you out. But at this time, I don't.
Mr. Stupak. OK.
Mr. McPhie. Let me make one observation. And it kind of
makes this statute sort of unique in certain respects.
In terms of the penalties, the penalties are different for
a Federal employee who violates the act than for a State
employee who violates the act. Frankly, I want to know why; I
don't know why. If a Federal employee violates the act, they
can be removed or suspended without pay for 30 days. If a State
employee violates the act, the only penalty by statute is
removal, not suspension or anything of that type.
We have found no statement of the congressional intent on
that difference. But if we have a case that involves a State
employee and, in the end, by a preponderance of the evidence,
it is proven that employee violated the statute, then the only
penalty is removal. There is no discretion.
Mr. Stupak. If I may, Mr. Chairman, you had indicated the
enthusiasm of local offices, having half the land size of
Michigan in my district. As I campaign in this election year, I
look for the local sheriff race, I look for the local county
commission race, because the enthusiasm and the voter turnout
in these counties--and in Michigan, a county commission race is
partisan, it is by our State constitution. That will increase
the voter turnout. It is not the President. It is not the U.S.
Senate. It is not even their most beloved Congressman. It is
those local sheriff races that generate the enthusiasm at the
local level, which increases the turnout.
And to have people disqualified because your department
received $594 for three programs or averaged $200 per program
is just insane. We must fix this. And it is not just Michigan;
it is throughout this great Nation.
And thank you for your courtesy.
Mr. Davis. Well, let me come back--and according to Section
1501, chapter 15 of title 5, State or local officers or
employees refer to those individuals whose principal employment
is support in whole or in part by Federal loans or grants.
Could you explain what is meant by ``in part?'' In other
words, what percentage of Federal funds does an agency have to
receive in order for their employees to fall under the Hatch
Act?
Ms. Galindo-Marrone. There is no precise percentage. But a
couple of points, if I may.
First, just because a State or local agency receives
Federal grants or loans does not mean that all the employees
are covered by the Hatch Act. It is only those employees at
that agency that have duties in connection with the federally
funded program.
And in terms, I think part of your question, in whole or in
part, so you may have a program that receives both State or
county funds as well as Federal funds. So that would be a
situation where you have a program that is funded with Federal
grants in part. But only the individuals that have duties in
connection with that program would be covered by the act, not
all the employees in that agency.
Mr. Davis. Are either of you aware of any instances where
individuals have actually gone to a circuit court after having
been charged with violating the Hatch Act and win their case in
the circuit court that there was no violation?
Ms. Galindo-Marrone. That I am aware of, in the last 10
years, I am not aware of any case like that.
And in terms of jurisdiction, in order to get into a
Federal court, you first have to go through the Merit Systems
Protection Board.
Mr. Davis. And so the Federal court is where they would
have to--I am trying to recall a case where a person who worked
for the State of Illinois decided to run for the State
legislature, was forced to quit her job, actually was
terminated I guess, or had to withdraw from the ballot, but who
chose not to withdraw and actually ran. After the election was
over, she sued, went to court, was restored to her position and
received her back pay.
Ms. Galindo-Marrone. Several things. I believe that,
possibly--but I don't want to misspeak, so it is something
that, if you wish, we can go back to the office and brief this
issue--prior to the 1974 amendments, I believe that employees
could go directly to Federal district court, in terms of Hatch
Act cases. So that is one point, but I would want to take a
look at that.
And it is also possible that the challenge may not have
been based on the Hatch Act. Or, for example, that the employer
chose to remove the individual on Hatch Act grounds, and that
probably the individual would have been able to successfully
challenge, because it is only OSC that has exclusive authority
to investigate and bring a disciplinary action complaint. It
wouldn't be the employer that would be able to remove the
individual on Hatch Act grounds. So there have been employees
who have successfully challenged an employer action based on
those grounds.
Mr. Davis. I would appreciate it very much if you could
check into that for us, if you could.
Ms. Galindo-Marrone. Certainly.
Mr. Davis. And if you could also provide us with any Hatch
Act statistics in terms of cases heard and the adjudication of
those----
Ms. Galindo-Marrone. OK.
Mr. Davis [continuing]. I would appreciate it.
Ms. Galindo-Marrone. And just for point of clarification,
Merit Systems Protection Board cases, or?
Mr. Davis. Actually both the Merit System Protection Board
cases as well as cases that have actually gone to the Federal
district court.
Ms. Galindo-Marrone. OK, very good.
Mr. Davis. Thank you very much.
Mr. Marchant, do you have any other questions?
If not, then thank you both. Thank you all.
We will now proceed to our third panel. And the witnesses
for that panel: Mr. Jack Maskell, who is a legislative attorney
with the American Law Division of the Library of Congress's
Congressional Research Service. Mr. Maskell has been providing
legal advice, analysis and assistance to Members of Congress,
congressional committees and staff since 1973 on legislation
and legislative matters, such as governmental ethics laws,
conflict-of-interest laws, and the Federal Hatch Act.
We also have Ms. Sandra Bell, who is the Ohio Civil Service
Employees Association's general counsel. OCSEA represents
36,000 State and other public workers and is an affiliate of
the American Federation of State, County and Municipal
Employees. Prior to assuming this position, Ms. Bell served in
various elective positions within the Association, in addition
to her role as general counsel. Ms. Bell also holds the
position of director of information technology for OCSEA.
We want to thank both of you for coming and being with us.
And if you would stand and raise your right hands to be sworn
in.
[Witnesses sworn.]
Mr. Davis. The record will show that the witnesses answered
in the affirmative.
If you would summarize your testimony for us in 5 minutes.
And about this time of day, we don't worry too much about the
lights, but the green light just means you have all the time.
The yellow one indicates that you are down to 1 minute. And we
generally try to end with the red one.
So thank you very much.
And we will begin with you, Mr. Maskell.
STATEMENTS OF JACK MASKELL, LEGISLATIVE ATTORNEY, AMERICAN LAW
DIVISION, CONGRESSIONAL RESEARCH SERVICE; AND SANDRA BELL,
GENERAL COUNSEL, OHIO CIVIL SERVICE EMPLOYEES ASSOCIATION,
AFSCME LOCAL 11 AFL-CIO
STATEMENT OF JACK MASKELL
Mr. Maskell. Thank you very much. I would like to thank the
chairman and the subcommittee for the invitation to testify
this afternoon.
I have submitted a more detailed written analysis to the
subcommittee and will confine my comments here to just a few
areas of that analysis.
The main point I would like to make this afternoon is that
the Hatch Act, that many would agree has done its job in the
past, is not carved in stone and it is not necessarily
sacrosanct. It was a legislative response crafted by Congress
to facts on the ground as they existed in 1939 and 1940; that
is, specific abuses and allegations of political coercion and
the doling out of Federal funds in work through the WPA.
The Hatch Act restrictions on both Federal employees as
well as on State and local government employees have undergone
substantial amendments, modifications and revisions over the
years to accommodate the changing conditions and changing
realities of Federal and public employment.
One of the earliest changes, in 1940, was to exempt Federal
employees in certainly localities in which there live numerous
Federal workers from the restrictions on running as an
independent in a partisan election. This was done in the
interest of allowing a large enough pool of civic-minded
persons who would be interested in elected public service in
these communities. This exception exists today for Federal
employees in more than 70 localities in the Washington, DC,
area and beyond, including Fairfax County, VA, which now has
more than a million residents.
In 1942, Congress again changed the law to enact a specific
exemption to the Hatch Act for all government employees who
were employed by a school or research institution. The
exemption for school teachers and employees in State and local
governments remains as part of the current law today. It was
intended to assure that teachers have the right to freely
discuss and be involved in political subjects and matters so
that teachers might be examples for youth of participatory
citizenship.
In 1974, major changes were made to the Hatch Act as it
applied to State and local government employees, eliminating
most of the Federal restrictions on off-duty, free-time
politics. After these changes were made in the Federal laws, as
the chairman pointed out earlier, several States then changed
their positions on political activities of State employees,
allowing for more voluntary, off-duty activities.
In 1983 and in 1987, surveys of State enforcement officials
by committees of the House indicated that such changes in their
States did not increase incidence of reported violations or
abuses, but did, in fact, increase the participation in the
political process and civic affairs by governmental employees.
In 1993, Hatch Act changes for Federal employees were made
to reflect the realities and changes in the modern Federal work
force and freed up most employees to engage in free-time
political activities.
Remember, the Hatch Act restrictions as originally enacted
in 1939 were seen, in many respects, as protections of
government employees from coercion, from higher-level
politically appointed supervisors to engage in political
activities or to make contributions. With the advent of the
modern, more independent merit-based civil service and the
adoption of increased statutory and regulatory protections of
Federal employees against improper coercion and retaliation,
the need for a broad ban on all voluntary activities in
politics as a means to protect employees was seen as less
necessary. The conditions of Federal employment have changed
dramatically since the first restrictions on political
activities were passed.
As one example, the percentage of merit system civil
service employees grew from 10 percent of the Federal work
force at the time of the passage of the Pendleton Civil Service
Act in 1883 to 32 percent of the Federal work force at the time
of the passage of the Hatch Act in 1939 to the more recent
figure of more than 80 percent of all Federal workers being
under merit system. The 1993 Hatch Act amendments addressed
these new realities.
With regard to running for office, in the legislation at
hand it might be argued that in many ways the Hatch Act is more
restrictive for State and local employees than for Federal
employees regarding candidacy. Although both sets of employees
may run in nonpartisan elections where no candidates have a
major party label, the local community exemption for Federal
employees allowing them to run as independents and even
partisan elections in certain communities applies only to
Federal workers. There is no similar exemption for State and
local government employees in their local communities.
Second, Federal employees who work only part time or
intermittently are covered by the Hatch Act only when on duty
and therefore can be partisan candidates in a partisan election
off of duty time. State and local employees, however, have no
such part-time exemption and are covered as long as their part-
time government position is their, ``principal employment.'' If
Congress finds that the pool of eligible civic minded persons
to run for local office in rural and smaller communities has
been adversely affected because of the extended reach of Hatch
Act and the increased pervasiveness of Federal funding of local
activities, then Congress may certainly address the issue
legislatively as it has done in the past.
It should be noted that even if the Federal Hatch Act is
changed for State and local employees such employees will still
be subject to State laws, local ordinances, State and local
personnel regulations and executive orders regarding
permissible outside political activities and workplace conduct.
The Supreme Court has found that the Federal Hatch Act does
not preempt and supersede State and local laws and ordinances
on State and local employee conduct. The legislation, H.R.
4272, providing exemption for all employees and communities in
local governmental units with a population of under 100,000
would allow them to run for local offices and partisan
elections.
If you find that a change in law is called for but fear
that the legislation might create too broad an exemption, it
may be narrowed in several ways. I will give you just a few
suggestions. Some suggestions might include limiting the
exemption to those employees who do not actually administer,
disburse or distribute Federal funds. Another would be to
require an employee to run as an independent as opposed to
representing a political party in a partisan election similar
to the exemption for Federal employees in exempted localities.
Another position may be enacted expressly addressing
workplace politicking by expressly prohibiting in Federal law
such conduct while on the job, although I have to tell you most
States prohibit that already in their State codes.
And finally, the issue of soliciting political
contributions may be addressed to allow such employees to
solicit from the general public so their candidacies might be
viable but prohibiting noncoercive, knowing solicitation of
colleagues, which is also prohibited in a lot of State codes as
well.
Thank you very much.
[The prepared statement of Mr. Maskell follows:]
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Mr. Davis. Thank you very much, and we will proceed to Ms.
Bell.
STATEMENT OF SANDRA BELL
Ms. Bell. Good afternoon, Chairman Davis, Member Marchant.
My name is Sandra Bell. I would like to thank you for this
opportunity to address the subcommittee. A written copy of my
testimony has been submitted to the committee, and I request
that it be admitted into the record.
Speaking on behalf of AFSCME and OCSEA, we submit that the
Hatch Act is antiquated. We applaud Representative Bart Stupak
for introducing H.R. 4272. H.R. 4272 will begin to eliminate a
prohibition that has unfairly denied public employees the
rights and privileges of full citizenship for 69 years. While
we fully support the bill, we would like to see its scope
broadened.
The proposed population threshold is too low to provide
relief to the vast majority of State and local government
employees, including those in my home State of Ohio. Although
Ohio is governed by its own little Hatch Act, the injustices
suffered in Ohio are comparable to those across the country.
The Hatch Act, as interpreted by the individual agencies in
Ohio, has a chilling effect upon the ability of the ordinary
citizen to engage in the political process. For example,
Charlie Bakle, a highway maintenance worker for the Ohio
Department of Transportation received a 10-day suspension for
talking politics at work. Debbie King, an enthusiastic worker
for the Department of Job and Family Services, received a 30-
day unpaid suspension because she volunteered to gather
signatures for a candidate on her own time. Had Charlie or
Debbie been employees in agencies which did not receive $1 of
Federal funds, they would have been allowed to engage in the
political process and maintain their job security.
AFSCME and OCSEA are actively working to repeal Hatch Act
prohibitions in order to give the Charlies and Debbies of the
country a chance to fully participate in the democratic process
regardless of where they work. The prohibition on parties and
political activity has outlived its usefulness and should be
repealed in its entirety.
Unlike in 1939, most States' laws now require disclosure of
campaign contributions and expenditures. Safeguards are in
place to protect the public from corruption and will remain in
place if the prohibitions are lifted. However, if a repeal is
not achievable currently, incremental reform should be
considered and we urge be included in H.R. 4272, and we do have
some suggestions.
First, we suggest that the Hatch Act could be amended to
limit the act's scope to those employees with discretionary
authority over use of Federal funds or associated policymaking.
The prohibition currently applies, with some narrow exceptions,
to, and I quote, any individual employed by a State or local
agency whose principal employment is in connection with an
activity which is financed in whole or in part by loans or
grants made by the United States or a Federal agency and who
exercises some function in connection to that activity. We
think this definition is too broad and too far reaching.
Second, a threshold could be set for the amount of Federal
funding that would trigger the Hatch Act. As it stands, the
Hatch Act applies to all State or local government employees
employed by an activity which is financed in whole or in part
by Federal loans or grants. A reasonable amendment could
trigger the prohibition only where 25 percent or more of an
employee agency's budget was composed of Federal funds.
Third, the Hatch Act currently applies to employees on an
unpaid leave of absence. In order to run for partisan political
office, most States or local government employees must resign.
Forced resignation is harsh and unreasonable. While on unpaid
leave, an employee would not have access to nor receive Federal
funds. Little harm seems to exist if such an employee is
permitted to run for office. For too long State and local
employees have been treated like second class citizens by
virtue of Hatch Act prohibitions. Reform is long overdue.
AFSCME and OCSEA believe that the prohibition against partisan
candidacy should be repealed in its entirety. We strongly
support H.R. 4272, but ask that its population threshold be
increased at a minimum to maximize impact and to provide some
additional reforms.
I thank the subcommittee again for the opportunity to
discuss the Hatch Act and will be happy to answer any
questions.
[The prepared statement of Ms. Bell follows:]
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Mr. Davis. Thank you very much, and I believe your
testimony triggered my memory, and I believe it was an AFSCME
union employee that----
Ms. Bell. I wouldn't doubt that.
Mr. Davis [continuing]. That brought the suit that I
recall. But thank you very much for your testimony.
Mr. Maskell, let me ask you, H.R. 4272 would allow State
and local employees in communities having a population under
100,000 to run for local partisan office. What would be the
effect of allowing State and local employees to run for local
office in a partisan election today since the original intent
of the Hatch Act, as I understand it, was to prevent corruption
in local and State governments on misuse of Federal funds,
which would be considered pretty much outdated today, I would
think?
Mr. Maskell. I agree with the testimony of Ms. Bell and I
think I suggested somewhat similar language. If they are
controlling Federal funds and disbursing Federal funds, the
issue of corruption could arise and partisan political abuses
could arise. But if they are merely an employee whose
employment is connected with the federally funded activity,
there is almost, there is such little chance for corruption
that may be one way to parse the legislation, absolutely, and
to allow most State and local employees to be freed up to
engage in that kind of outside activity outside of the job.
Mr. Davis. Would it appear or would it be fair to suggest
that the Hatch Act, as we know it, does in fact prevent
individuals from exercising part of their constitutional right
as an American?
Mr. Maskell. I don't think there is any question that in
many instances Federal employees or State and local employees
would want to exercise certain first amendment rights that they
are not able to now. Now the courts have said that even though
it does involve first amendment rights for Federal employees
because of the employer-employee relationship they can restrict
these first amendment rights more than they can of people in
the general population. And because of State and local
governments, because of the spending power of Congress, they
could put limitations on it, but absolutely there is no
question that it impacts the first amendment rights of these
employees who are covered.
Mr. Davis. Ms. Bell, how do you respond to the testimony
that allowing these individuals to run for office would create
a number of problems and difficulty relative to managing
operations that they may be a part of?
Ms. Bell. I disagree. Most of the employees represented by
AFSCME are not in the position of managing or distributing
Federal funds in their normal day-to-day operations. These are
the line workers. These are the transportation workers that you
see on the roads. These are the people that never meet the
public. These are the ones in the back rooms who are entering
data, who are clerking. These are the corrections officers who
are managing the prisons and don't have any contact with the
general public.
In 1939, a civil service job might have been the highest
job available at that time. Training could be implemented in
order to assure that when you take a civil service job, you are
made aware of the possible prohibitions of the Hatch Act. You
don't take a job thinking that one of these days, 10 years from
now, I want to run for Governor or the State legislature. You
take that type of job because you are interested in either
nowadays having a job or being a public servant. So I don't
think it is going to cause that big of a problem.
Mr. Davis. Mr. Maskell, you were about to comment.
Mr. Maskell. I'm not sure what the effect would be. My
guess is based on other reform and loosening up of the Hatch
Act that there will not be significant abuses and coercion
involved. Almost every State has their own standards of
conduct, conflict of interest, ethics, and kind of Hatch Act
provisions that strictly regulate what you can do and can't do
on the job and very much use similar language of the Federal
Hatch Act for Federal employees, as well are not allowed to use
their official authority or influence to affect an election.
Those still all are in effect. So I'm not sure what it would
be. And that is something that you all have to balance that,
you know, you would like to free them up and see if you can
minimize the potential or the risk for that happening.
Mr. Davis. Thank you both very much.
Ms. Norton.
Ms. Norton. Mr. Chairman, I regret that another hearing
kept me from being here because I think this is a very
important issue, and I certainly agree that first amendment
rights are significantly curtailed. Generally one would want to
inquire constitutionally in return for what? When one weighs
equities on each side, is the equity toward so-called
corruption so great as to warrant denial of the right to run
for public office? I would like to think a lot more about this.
You know, when it comes to line workers running for things
like the school board, it's pretty hard to think of why, if
anything, would want to have to encourage people to do so.
Where there is a State Hatch Act, where I presume these workers
would still be covered, one begins to wonder what is the
particular function of the Federal Hatch Act in those cases.
Mr. Maskell, perhaps you could tell us, is there some
redundancy there? If there is a State Hatch act already and if
these employees would be covered under that State Hatch Act,
what special or unique function does the Federal Hatch Act play
such that piling it on top either gets us anything that the
State Hatch Act won't get us or that otherwise makes us
understand that it's necessary to have two laws affecting these
citizens?
Mr. Maskell. Well, you are absolutely right. There are
redundancies and a number of the States have somewhat similar
provisions that the Federal law has. But again there are a lot
of States that have reformed their so-called little Hatch Acts
and have freed up their own employees quite a bit, so that
Michigan, for instance, does not prohibit their State employees
running for election in a partisan election. So the Hatch Act
isn't redundant because the Federal law does restrict them if
their job is in connection with the federally funded activity.
So in some cases there are redundancies and in other cases
there aren't. It was passed originally as a protection
concerning the disbursement and utilization of Federal funds,
and I think we can all agree it has kind of moved away from
that. I don't know if it's an unintended consequence, but it
may be unanticipated, something that was not anticipated, at
least to the extent it is now. Because of the pervasiveness of
Federal funding of local activities it has reached a lot of
activities at the State and local level that it never reached
and wouldn't reach in 1940.
Ms. Norton. Would an earmark reach that employee?
Mr. Maskell. Sure. It could. If it's a State or local
agency, a governmental agency, sure.
Ms. Norton. Yes, a State or local agency. Lobbying wouldn't
be affected by this, would it?
Mr. Maskell. No. Lobbying isn't involved. This is partisan
political activity, meaning relating to a political party. Most
lobbying activities are done in nonpartisan--they are not
associated with one political party or another or the success
or failure of a candidate, and therefore they are generally not
covered under the Hatch Act.
Ms. Norton. Oh, my goodness, I think that is where you get
into some difficulties. One party may be very much for raising
taxes and another party may not be. The Federal Government's
notion that it's either all or nothing comes because it
sometimes doesn't put the time into thinking through how to
grant as much as possible while affording the appropriate
protections.
I would be--and this really comes out of a lot of the work
we do in the Congress and I don't know if it would be
applicable--I'm always fearful of appearances, because much of
what we frankly associate with unethical or corrupt activity
often doesn't have to do with action that someone takes but
with creating the impression of authority that you really don't
have. There might be a great temptation to do so if your agency
is funded. In my judgment, it might take some reworking of the
regulations. I would err on the side of granting constitutional
rights always, but I have to--and by the way, I am particularly
mindful of people who work in communities such as Mr. Stupak's
legislation pertains to. That is all there is, is government
employment. It does seem to me that kind of blanket denial, I
don't know who can run for office? Rich people from out of
town? I'm not sure. It does seem to me that something has to be
done. If we were to spread this it would put a real burden on
the State Hatch Act, but one I'm prepared to believe the States
are prepared to accept. And to the extent that this is an
exception, then it does seem to me we would have to spell out
what it means because of the appearance, for example, that
someone, I mean the school board. Well, you know, that is a
common and very ordinary kind of very important activity, but I
must say, the schools get funds. So you know one begins to
think like a lawyer and then this stuff gets all messed up
again. Because surely the school board has something to do with
that.
Many jurisdictions now have nonpartisan elections. I'm not
sure what that means in terms of this legislation or what we're
after, but they don't run under any particular party. I don't
know if that has been discussed before I came here. Are those
people already exempt?
Mr. Maskell. If they're running in a nonpartisan election
and no candidate----
Ms. Norton. You can run for mayor in a nonpartisan
election.
Mr. Maskell. Right, then they're allowed to run. But what
you're saying is absolutely correct because what we're seeing,
at least in the communities that I know of in Northern
Virginia, the candidates get endorsed by political parties, the
political parties send out their literature saying Joe Smith,
he is the Democratic candidate or he is the Republican
candidate and all and even though it's, quote, nonpartisan, you
know who the parties are supporting in any event and so you are
right, it loses----
Ms. Norton. What is the point in the nonpartisan elections?
You are absolutely right. Nobody really runs nonpartisan, so do
you know what the original reform was designed to do? Because
if it was to break people away from parties it has been a
complete failure.
Ms. Bell. I believe the original intent was to allow
interested people to run on their own individual platforms, to
run on the I'm a parent, that I'm a member of this community
and that I am involved in, especially, like school boards and
smaller commissions. But as the political machine has grown,
those type of positions have become training grounds for higher
positions, and therefore the parties and even the independents
and the third parties have learned that we have to pay
attention as they come up through the ranks in order to prepare
for future Republicans and future Democrats within our entire
system.
Ms. Norton. Mr. Maskell, how high up does a nonpartisan
election in Virginia go?
Mr. Maskell. Well, the Fairfax County School Board is
nonpartisan, but the county supervisor, the county office is
partisan. Arlington has their own parties. They have that
Arlington Better Government Party. They have nonmajor parties
that they have labels for their council, so it really depends
on the jurisdiction and locality. But of course you can run as
an independent in most of these communities even if it's a
partisan election if you are a Federal employee, but not if you
are a State or local government employee. You are not allowed
to.
Ms. Bell. And we have some township trustees that are
nonpartisan.
Ms. Norton. I think, Mr. Chairman, every so often the Hatch
Act gets a going over. I think in light of this proposal I
suggest that the time may be at hand again. I also suggest, Mr.
Chairman, that if you want to see something really ridiculous
all District government comes under the Federal Hatch Act.
Shortly after coming into Congress I got it freed at last,
except it didn't last into the Senate. And I have to tell you,
the kind of confusion, I would look to see something that makes
it easy for the average person to understand. The kind of
confusion that you have, even when you speak of nonpartisan
elections, we have ANC commissioners. Actually that is
something that comes from an election that came from the
original Home Rule Act. It was the idea of some member who sat,
who brought in from his own jurisdiction was nonpartisan. Well,
the office of the counsel, or whatever it's called, has on some
occasions given the opinion that these people were, that you
could hold a Federal or local job and run for this nonpartisan
position. Then on the other hand--and understand, they are
applying only Federal law because D.C. doesn't have its own
law. And then on the other hand, others have questioned it. So
what you have now is probably at least half a dozen members of
the D.C. City Council who had been ANC commissioners and ran as
ANC commissioners. I can name one off the top of my head,
Adrian Fenty, who then ran for the council.
So the confusion leads people to hold up their hands and
say, fine, sue me. So, I am asking, Mr. Chairman, I understand
it may have been noted that D.C. be taken all together out of
the Federal Hatch Act, at least you have a State Hatch Act in
the States. Whether or not this dual constriction is necessary
I think is something that ought to be investigated.
Mr. Davis. Thank you.
Mr. Stupak.
Mr. Stupak. Thank you, Mr. Chairman. One question if I may
Mr. Maskell. I'm looking at the CRS report, page 5, where they
talk about provisions of State and local law. So that the
suggestions that Ms. Bell made, let's say, like limited to
discretion of Federal money or policy or the 25 percent
threshold of funds from Federal Government, that won't work
because the Federal law would still supersede the State law
because the suggestions that Ms. Bell made would be less
restrictive than Federal law, right?
Mr. Maskell. Well, you would change the Federal--I think
we're talking about changing the Federal laws as it applied to
State----
Mr. Stupak. Right, but Ohio could not enact what Ms. Bell
suggested. They would still be in violation of the Federal
Hatch Act.
Mr. Maskell. Exactly.
Mr. Stupak. Thank you, Mr. Chairman.
Mr. Davis. Thank you very much, and let me just ask, I'm
trying to discern the difference between running as a partisan
and running as a nonpartisan. Have either of you noted any
discernible differences?
Ms. Bell. Not in the enthusiasm level.
Mr. Davis. I think of some school board elections that I
have, you can't get any more striking than some of those have
been, and they were all nonpartisan. And I think that it may
very well be time to rework the Hatch Act in terms of its
intent. I am finding it difficult to know what it really is
designed to do.
Well, let me thank both of you for your testimony and for
being here with us. I want to thank you, Mr. Stupak, for being
with us this afternoon. If there are no further questions, then
this hearing is adjourned.
[Whereupon, at 3:30 p.m., the committee was adjourned.]