[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]




 
                     HATCH ACT: OPTIONS FOR REFORM

=======================================================================

                                HEARING

                               before the

                   SUBCOMMITTEE ON FEDERAL WORKFORCE,
                  U.S. POSTAL SERVICE AND LABOR POLICY

                                 of the

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 16, 2012

                               __________

                           Serial No. 112-155

                               __________

Printed for the use of the Committee on Oversight and Government Reform


         Available via the World Wide Web: http://www.fdsys.gov
                      http://www.house.gov/reform


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              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                 DARRELL E. ISSA, California, Chairman
DAN BURTON, Indiana                  ELIJAH E. CUMMINGS, Maryland, 
JOHN L. MICA, Florida                    Ranking Minority Member
TODD RUSSELL PLATTS, Pennsylvania    EDOLPHUS TOWNS, New York
MICHAEL R. TURNER, Ohio              CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina   ELEANOR HOLMES NORTON, District of 
JIM JORDAN, Ohio                         Columbia
JASON CHAFFETZ, Utah                 DENNIS J. KUCINICH, Ohio
CONNIE MACK, Florida                 JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan                WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma             STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan               JIM COOPER, Tennessee
ANN MARIE BUERKLE, New York          GERALD E. CONNOLLY, Virginia
PAUL A. GOSAR, Arizona               MIKE QUIGLEY, Illinois
RAUL R. LABRADOR, Idaho              DANNY K. DAVIS, Illinois
PATRICK MEEHAN, Pennsylvania         BRUCE L. BRALEY, Iowa
SCOTT DesJARLAIS, Tennessee          PETER WELCH, Vermont
JOE WALSH, Illinois                  JOHN A. YARMUTH, Kentucky
TREY GOWDY, South Carolina           CHRISTOPHER S. MURPHY, Connecticut
DENNIS A. ROSS, Florida              JACKIE SPEIER, California
FRANK C. GUINTA, New Hampshire
BLAKE FARENTHOLD, Texas
MIKE KELLY, Pennsylvania

                   Lawrence J. Brady, Staff Director
                John D. Cuaderes, Deputy Staff Director
                     Robert Borden, General Counsel
                       Linda A. Good, Chief Clerk
                 David Rapallo, Minority Staff Director

Subcommittee on Federal Workforce, U.S. Postal Service and Labor Policy

                   DENNIS A. ROSS, Florida, Chairman
JUSTIN AMASH, Michigan, Vice         STEPHEN F. LYNCH, Massachusetts, 
    Chairman                             Ranking Minority Member
JIM JORDAN, Ohio                     ELEANOR HOLMES NORTON, District of 
JASON CHAFFETZ, Utah                     Columbia
CONNIE MACK, Florida                 GERALD E. CONNOLLY, Virginia
TIM WALBERG, Michigan                DANNY K. DAVIS, Illinois
TREY GOWDY, South Carolina


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on May 16, 2012.....................................     1

                               WITNESSES

The Honorable Carolyn N. Lerner, Special Counsel, U.S. Office of 
  Special Counsel
    Oral Statement...............................................     6
    Written Statement............................................     9
The Honorable Irvin B. Nathan, Attorney General, District of 
  Columbia
    Oral Statement...............................................    16
    Written Statement............................................    18
The Honorable Jon J. Greiner, Former Utah State Senator
    Oral Statement...............................................    25
    Written Statement............................................    27
Mr. Scott A. Coffina, Partner, Drinker Biddle & Reath LLP
    Oral Statement...............................................    30
    Written Statement............................................    33
Mr. Jon Adler, National President, Federal Law Enforcement 
  Officers Association
    Oral Statement...............................................    41
    Written Statement............................................    42

                                APPENDIX

The Honorable Dennis Ross, a Member of Congress from the State of 
  Florida, written statement.....................................    57
Testimony for the record submitted by The Federal Managers 
  Association....................................................    58
The National Law Journal: Amending the Hatch Act by Scott A. 
  Coffina........................................................    60
Letter from The National Sheriffs' Office........................    63


                     HATCH ACT: OPTIONS FOR REFORM

                              ----------                              


                        Wednesday, May 16, 2012,

                  House of Representatives,
      Committee on Oversight and Government Reform,
Subcommittee on Federal Workforce, U.S. Postal Service and 
                                              Labor Policy,
                                                   Washington, D.C.
    The subcommittee met, pursuant to notice, at 9:30 a.m. in 
room 2247, Rayburn House Office Building, the Honorable Dennis 
Ross [chairman of the subcommittee], presiding.
    Present: Representatives Ross, Chaffetz, Cummings, Norton, 
Lynch, Connolly, Gowdy and Davis.
    Staff Present: Ali Ahmad, Majority Communications Advisor; 
Adam P. Fromm, Majority Director of Member Services and 
Committee Operations; Jennifer Hemingway; Majority Senior 
Professional Staff Member; Ashok M. Pinto; Majority Deputy 
Chief Counsel, Investigations; James Robertson, Majority 
Professional Staff Member; Cheyenne Steel, Majority Press 
Assistant; Peter Warren, Majority Legislative Policy Director; 
John A. Zadrozny, Majority Counsel; Krista Boyd, Minority 
Deputy Director of Legislation/Counsel; Ashley Etienne, 
Minority Director of Communications; Susanne Sachsman Grooms, 
Minority Chief Counsel; Devon Hill, Minority Staff Assistant; 
William Miles, Minority Professional Staff Member; Dave 
Rapallo, Minority Staff Director; and Safiya Simmons, Minority 
Press Secretary.
    Mr. Ross. Good morning.
    I will now call the Subcommittee on Federal Workforce, U.S. 
Postal Service and Labor Policy to order.
    Today's hearing is on the ``Hatch Act: Options for 
Reform.''
    As we do in all our Oversight subcommittee and full 
committee hearings, I will state the Oversight Committee 
Mission Statement.
    We exist to secure two fundamental principles. First, 
Americans have the right to know that the money Washington 
takes from them is well spent. Second, Americans deserve an 
efficient and effective government that works for them.
    Our duty on the Oversight and Government Reform Committee 
is to protect these rights. Our solemn responsibility is to 
hold government accountable to taxpayers because taxpayers have 
a right to know what they are getting from the government.
    We will work tirelessly in partnership with citizen 
watchdogs to deliver the facts to the American people and bring 
genuine reform to the Federal bureaucracy. This is the mission 
of the Oversight and Government Reform Committee.
    I will now recognize myself for an opening statement.
    During my brief tenure as a member of Congress, I have seen 
how well intentioned legislation can have unintended 
consequences when applied to the real world. This is certainly 
true with respect to the Hatch Act. Originally enacted in 1939, 
the Hatch Act was needed to prevent an all too prevalent 
practice of Federal employees engaging in partisan, political 
activity using Federal resources.
    The Hatch Act was last amended in 1993, a year in which 
employees were becoming accustomed to email for workplace 
communication and using other forms of electronic communication 
to share information with their colleagues. Technology's 
advance is only speeding up and the Hatch Act is in need of 
update.
    Today's hearing builds on the committee's June 2011 hearing 
at which a bipartisan panel expressed support for making major 
changes in the Hatch Act statute. Furthermore, several bills 
have been introduced to repeal the Hatch Act's overreaching and 
arbitrary restrictions on State and local government workers 
who seek to run for office.
    In short, there is a growing consensus that we should enact 
comprehensive Hatch Act reform. The Federal Government should 
not be in the business of making personnel policy for State and 
local government employees and the Office of Special Counsel 
should not be dedicating as much of its resources as it now 
does in pursuing complaints concerning State and local 
elections.
    Rather, the Office of Special Counsel should be focused on 
cracking down on Federal workers who abuse the public trust and 
on protecting those Federal workers who are unfairly targeted 
by their managers for blowing the whistle on waste, fraud and 
abuse. Instead, we should craft legislation that preserves the 
intent of the Hatch Act and reflects the realities of today's 
workplace. Comprehensive reform should, for example, adopt a 
definition of Federal workplace that accounts for how Federal 
employees communicate today, which is oftentimes out of the 
office, on the go, with personal electronic devices.
    I think we can all agree that our Nation's public servants 
should be prohibited from engaging in partisan, political 
activity. The Hatch Act has been largely successful at curbing 
overtly partisan politicking within the civil service. However, 
a fresh look is needed to address certain unforeseen challenges 
and unintended consequences. We will hear about some of those 
consequences today. I hope we are able to enact changes that 
prevent them from occurring in the future.
    I would like to thank Mr. Cummings for his work on this 
important issue and I look forward to working with him, 
Chairman Issa and the Ranking Subcommittee member, Mr. Lynch, 
on moving Hatch reform legislation through the House of 
Representatives this Congress.
    I thank the witnesses for appearing today and I look 
forward to your testimony.
    I will now recognize the Ranking Member of the full 
committee, the gentleman from Maryland, Mr. Cummings, for an 
opening statement.
    Mr. Cummings. Thank you, Mr. Chairman, for holding this 
hearing today.
    In March, I introduced H.R. 4152, the Hatch Act 
Modernization Act of 2012 which is co-sponsored by every 
Democratic member of the Subcommittee. This bill provides 
immediate, common sense and non-controversial fixes to the 
Hatch Act. Specifically, it implements recommendations for 
immediate reform proposed by Special Counsel Carolyn Lerner.
    First, the bill eliminates the restriction that prevents 
state and local government employees from running for political 
office. Currently, if a State or local government employee 
works on a program that receives any amount of Federal funding, 
the Hatch Act prohibits that employee from running for office.
    This restriction has led to a number of simply unjust 
results for public servants. For example, today we will hear 
from John Greiner, former Police Chief of the City of Ogden, 
Utah, who was removed from his position because he ran for 
State Senate. In another example, a Philadelphia transit cop 
was barred from running for his local school board because he 
works with an explosives detection dog paid for by a grant from 
The Department of Homeland Security. These results make no 
sense. Even worse, the Office of Special Counsel reports that 
45 percent of its caseload now involves enforcing this 
restriction, diverting valuable resources from more critical 
issues.
    The Hatch Act Modernization Act also implements a second 
recommendation made by the Special Counsel. It expands the 
range of penalties for Hatch Act violations. Right now, an 
employee who commits a Hatch Act violation, no matter how 
minor, must be fired unless the Merit Systems Protection Board 
unanimously votes to impose a lesser penalty. This bill makes 
it easier for the punishment to more appropriately fit the 
violation.
    Finally, the bill includes a third provision to treat 
employees working for the District of Columbia as State and 
local government employees rather than as Federal employees. 
This provision is based on legislation championed by 
Congresswoman Eleanor Holmes-Norton that passed the House by a 
voice vote in the 111th Congress.
    We will hear today from the Attorney General of the 
District of Columbia that without this change, he will not be 
able to run for another term in 2014. That just does not make 
sense.
    Mr. Chairman, this bill is simple, straightforward and non-
controversial. Last June at our first hearing on the Hatch Act, 
Chairman Issa, to his credit, said the committee would consider 
Hatch Act legislation before the election. He said, ``The 
Oversight Committee is intending to author such legislation as 
may be necessary and will affect the next President. 
Necessarily, we will, in fact, work on a bipartisan basis to 
find any and all changes necessary to take effect upon the 
inauguration of the next President. Although this is 18 months, 
and it seems like a long time, in political time, it is a very 
short period.''
    The Chairman was right. That was nearly a year ago and time 
is running out. Although I support additional efforts to 
improve the Hatch Act, H.R. 4152 includes commonsense fixes 
that the Special Counsel needs now before the election. These 
provisions have widespread support and we can pass them 
immediately.
    Mr. Chairman, I am hoping that we can work together to 
schedule a markup for May 31 when we return from the Memorial 
Day recess. There are many public servants, police officers, 
social workers, paramedics, who want to serve their country by 
holding public office. We should not make them wait any longer.
    With that, I yield back.
    Mr. Ross. Thank you, Mr. Cummings.
    I now recognize the gentleman from Massachusetts, the 
Ranking Member of the Subcommittee, Mr. Lynch, for an opening.
    Mr. Lynch. Thank you, Mr. Chairman.
    I would also like to welcome our witnesses this morning and 
thank each of them for being here to help the Subcommittee with 
its work.
    As the Ranking Member has pointed out, it has been nearly 
two decades since the Hatch Act was last amended. Throughout 
this time, we have witnessed significant legislative, workplace 
and technological developments that collectively have 
demonstrated a need for us to modernize this essential and 
landmark law.
    Accordingly, I welcome this opportunity to examine how we 
can best bring the Hatch Act up to date to reflect our 
contemporary Federal workplace in a responsible and bipartisan 
manner that also safeguards the integrity and purpose behind 
the Act.
    The original Hatch Act of 1939, and its subsequent 
amendments in 1993, together were intended to curtail on-the-
job politics in the Federal workplace. The law itself attempts 
to walk a fine line between affording maximum respect to the 
constitutionally-protected freedoms of speech and expression 
and the compelling need to eliminate political coercion and 
partisan influence throughout the Federal civilian workforce.
    In other words, the Hatch Act helps to ensure that those 
government employees tasked with carrying out policies and 
programming do exactly that while putting aside their 
individual political views.
    As many of you have heard me state on several occasions, I 
truly believe that the Federal Government has one of the most 
dedicated and talented employee workforces anywhere in the 
world. The majority of our workers enter public service with an 
innate interest in doing right by their fellow citizens and 
making a positive difference on behalf of their country.
    Nevertheless, there will always be a few bad actors who 
unfortunately use their official position to influence or 
advance a particular political agenda, party or partisan 
candidate. In those few cases, we, fortunately, have the 
provisions of the Hatch Act to rely upon as well as the Office 
of Special Counsel and the Merit Systems Protection Board, to 
carry out the duties of enforcement and punishment 
respectively.
    As we prepare ourselves for another major presidential 
election and campaign cycle, which in many ways is already well 
underway, I appreciate Special Counsel Carolyn Lerner's renewed 
focus on ways to enhance and modernize the Hatch Act. With the 
advent of smart phones, blogging and other social mediums and 
technologies, the Federal workplace is clearly no longer our 
parents' workplace.
    To that end, it is commonsense that we would now be 
reexamining the possibility of modernizing provisions of the 
Hatch Act. In addition to updating the Hatch Act, the Office of 
Special Counsel has also put forth some reasonable suggestions 
for modifying the Hatch Act's reach into political activities 
of government employees on a State and local level.
    I have heard of dozens of instances cited by Ranking Member 
Cummings and others involving state, county or municipal 
workers who are either prevented from pursuing elected office 
or in some cases, even fired because he or she ran for public 
office while employed in a capacity was in some way or another 
connected to Federal dollars.
    Mr. Chairman, these reports are concerning and reflective 
of the need to promptly reexamine the Hatch Act in order to 
reduce the possibility of such unintended consequences. That 
said, I urge our Subcommittee to move swiftly to consider H.R. 
4152, the Hatch Act Modernization Act of 2012, introduced by my 
colleague and friend, Mr. Cummings of Maryland. It is sponsored 
by every single Subcommittee member on this side of the aisle.
    The bill will address a lot of the concerns being discussed 
here this morning. If there are additional Hatch Act related 
changes that the majority would like to see tackled, then at a 
minimum, H.R. 4152 should serve as the vehicle for 
accomplishing those changes.
    Again, I thank each of our witnesses for being here with us 
today and I yield back the balance of our time.
    Mr. Ross. Thank you, Mr. Lynch.
    I will now introduce our distinguished panel. We have with 
us the Honorable Carolyn N. Lerner, who is the Special Counsel, 
U.S. Office of Special Counsel; Ms. Anna Galindo-Marrone, 
Chief, Hatch Act Unit, U.S. Office of Special Counsel, here not 
to testify but for technical reference only I understand; and 
the Honorable Irvin Nathan, Attorney General, District of 
Columbia.
    I would like to defer to my colleague from Utah, Mr. 
Chaffetz, to introduce our next guest.
    Mr. Chaffetz. Thank you, Mr. Chairman.
    I wanted to take just a moment and thank one of our own 
from Utah, Mr. Greiner, for being here.
    He began his law enforcement career in Ogden in 1973 and 
later rose through the ranks and became the Ogden City Police 
Chief. In fact, in 2005, Mr. Chairman, he was named the Utah 
Chief of the Year, quite a distinction for somebody who served 
law enforcement so nobly for so long.
    He was elected to serve a four year term in the Utah State 
Senate in 2006 but Mr. Greiner was fired by Ogden City on 
December 28, 2011 after a Federal panel ruled he violated the 
Hatch Act. Mr. Greiner's violation came when he signed a 
quarterly report for a Federal grant to upgrade the police 
dispatch system, money that went to the country not to the 
actual department. The city officials said the termination was 
necessary in order for Ogden to continue receiving future 
Federal funds and loans from the Federal Systems Merit 
Protection Board. Mr. Greiner was not only fired but was also 
banned by the Federal Government from serving as a law 
enforcement officer in Utah for 18 months starting in January 
2012.
    This is outrageous and something that needs to be 
rectified. I appreciate the bipartisan support, in particular 
the members on the dais today. We appreciate the service of Mr. 
Greiner and appreciate your being here and sorry sir that you 
have had to go through this. Hopefully you can help us as we 
try to figure out the solution because I certainly don't think 
you were a part of the problem.
    Thank you, Mr. Chairman, and I yield back.
    Mr. Ross. Thank you, Mr. Chaffetz.
    Our next witness is Mr. Scott A. Coffina, a Partner at 
Drinker Biddle & Reath. Our last witness is Mr. Jon Adler, 
National President, Federal Law Enforcement Officers 
Association.
    Pursuant to Committee rules, all witnesses will be sworn 
before they testify. Please rise and raise your right hand.
    Do you solemnly swear or affirm that the testimony you are 
about to give will be the truth, the whole truth, and nothing 
but the truth?
    [Witnesses respond in the affirmative.]
    Mr. Ross. May the record reflect that all witnesses 
answered in the affirmative. You may be seated.
    In order to allow time for discussion, I would like you to 
limit your testimony to five minutes. Your entire written 
statement will be made a part of the record.
    Now I will recognize Ms. Lerner for an opening statement.

                       WITNESS STATEMENTS

                 STATEMENT OF CAROLYN N. LERNER

    Ms. Lerner. Thank you, Chairman Ross, Ranking Member Lynch, 
and members of the Subcommittee
    Thank you for the opportunity to testify today about the 
U.S. Office of Special Counsel's administration of the Hatch 
Act. With me today is Ana Galindo-Marrone, the Chief of OSC's 
Hatch Act Unit.
    After being sworn in as Special Counsel last June, I 
reviewed OSC's Hatch Act program and quickly discovered the 
overreach of this otherwise very important law. At its best, 
the Hatch Act keeps partisan politics out of the workplace and 
prevents those in political power from abusing their authority. 
At its worse, the Act interferes with the rights of well 
qualified citizens to serve their local communities by running 
for State and local office.
    This concern, along with others, prompted me to send 
Congress a legislative proposal to amend the Hatch Act. I 
applaud the bipartisan group of lawmakers in both the House and 
the Senate who introduced this legislation in March.
    The primary reform in these bills is removing the Hatch 
Act's prohibition on State and local employees running for 
partisan elected office. Removing this restriction will promote 
good government and demonstrate respect for the independence of 
States and localities. It will also let OSC use other limited 
resources toward more effective enforcement of the Act.
    Currently, State and local employees are ineligible to run 
for office if their jobs are in any way tied to a source of 
Federal funds. Both case law and substantial increase in 
Federal grant programs have greatly expanded the law's 
coverage. Hundreds of thousands of public servants, including 
first responders, health care workers and police officers, are 
now covered by this prohibition. This expansive application of 
the law leads to absurd results. Here are some examples.
    As Representative Cummings noted earlier, OSC recently had 
to tell Matthew Arlen, a police officer in a canine unit, that 
he couldn't run for the school board because his partner, a 
black Labrador, is funded through Federal grants. Mr. Arlen 
rightly questioned how much influence can my dog have over what 
I could do on the school board.
    We told a paramedic he couldn't run for county coroner 
because some of the patients that he transports received 
Medicaid and we routinely advise deputy sheriffs that they 
can't run for sheriff. Thus, the most qualified candidates are 
often disqualified from running for office. This is especially 
a problem in smaller communities where the pool of potential 
candidates is very limited.
    Not only is the reach of the Hatch Act too broad, its 
enforcement often is inconsistent with unfair results for 
several reasons. First, OSC can only investigate those cases 
where we receive the complaint, so using the Hatch Act as a 
weapon, candidates frequently file complaints against their 
opponents. An allegation that an individual is in violation of 
Federal law, even in the absence of any wrongdoing, can cast a 
cloud over a candidacy. Our enforcement efforts actually 
increase the level of partisanship in politically charged 
contests.
    Second, OSC has no jurisdiction in non-partisan elections. 
This exemption creates confusion and inconsistent results 
between neighboring localities. For example, a school board 
election may be partisan in one county but non-partisan the 
next county over.
    One final example, the law does not apply to elected 
officials and once someone has already been elected to office, 
they are free to run again in any partisan election. This 
again, leads to absurd results--like a deputy sheriff who 
cannot run against a sitting sheriff but that sheriff could run 
again not only for that office, but any other elected office 
for which he may choose.
    These arbitrary results reinforce the need to let States 
and localities decide how best to restrict the political 
activity of their employees. In fact, each State already has 
their own ethics rules or mini-Hatch Acts covering this issue.
    Despite my concerns about the unfair application of the 
Act, nearly half of OSC's Hatch Act caseload is made up of 
State and local cases. Over the past two years, we have 
conducted more than 500 investigations and issued thousands of 
advisory opinions. In these cases, we must conduct very fact 
specific, time consuming investigations to determine coverage 
and the State or local agency has to spend their resources 
answering our document requests and interview requests.
    It is important to note that if the candidacy provision is 
removed, a State or local employee still could not engage in 
coercive conduct or misuse their authority for political gain. 
Without the candidacy provision OSC could target its resources 
on these types of cases in which actual misconduct is at issue. 
We could also do more outreach and education to help employees 
understand their obligations under the Act and prevent problems 
from happening in the first place.
    A second important reform is modifying the penalty for 
Federal employees. As the law now stands, termination is the 
only penalty unless the MSPB Merit Systems Protection Board 
unanimously votes to mitigate the penalty. Even in these cases, 
the MSPB cannot impose a penalty of less than 30 days 
suspension.
    This structure is overly restrictive and can lead to unjust 
results. It can even deter agencies from referring potential 
violations to my agency because they don't want to lose an 
otherwise good employee. The pending legislation allows for the 
same range of penalties which now apply to other disciplinary 
actions and passing this reform will aid OSC's enforcement 
efforts.
    Finally, we have noted several other potential areas for 
legislative reform of the Hatch Act. These are described at 
greater length in my written testimony and given my time 
constraints, I am going to rely on that submission. I also know 
that other panel members will be addressing several of them.
    Very briefly they include the following five issues: one, 
codify a definition of political activity; two, clarify the 
definition of the term ``Federal workplace''; three, clarify 
the scope of the exemption for high level administration or 
White House employees; four, modify the Hatch Act's application 
to District of Columbia employees; and five, consider a statute 
of limitations.
    I just want to note that these other areas are no where 
near as critical, in my mind, as the need to modify the State 
and local candidacy provision. I really want to stress that 
that is our most crucial need. While the other items are 
important, I really hope that we can emphasize change in that 
area.
    [Prepared statement of Ms. Lerner follows:]

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    Mr. Ross. Thank you, Ms. Lerner. I appreciate that.
    Just as a reminder, your written testimony is a part of the 
record, so it is all inclusive.
    With that, I would like to recognize Mr. Nathan for five 
minutes for an opening.

                  STATEMENT OF IRVIN B. NATHAN

    Mr. Nathan. Good morning, Mr. Chairman and Subcommittee 
members. I am Irv Nathan, the Attorney General for the District 
of Columbia.
    I am very pleased I was invited here today to testify about 
proposals to reform the Hatch Act and to speak in favor of 
reforms that would treat the citizens of the District of 
Columbia like the citizens of all States and localities across 
the country, allowing them to choose their elected officials, 
whether in partisan or non-partisan elections, without 
inappropriate Federal restrictions.
    First, as a former General Counsel of the House, let me say 
how pleased I am to be back here at an institution for which I 
have such respect and admiration. Let me also comment as a 
person who has seen a lot of hearings that this is one of the 
rare hearings where everything that has been said on both sides 
of the aisle, we agree with and I believe that you agree with 
each other. I certainly hope that we can get these reforms 
passed. It is very important for the District of Columbia 
residents and for citizens around the country.
    The short of it is that under the Hatch Act, the current 
way the District of Columbia employees are treated just like a 
Federal agency which is completely inappropriate. It has had 
very damaging effects. We have a number of elected officials, 
one of whom is on the dais, and I am pleased to see Ms. Norton 
here today, and we have elected ANC members, elected school 
board members and as I testified in my statement now the 
Attorney General position will become an elective position 
starting in 2014.
    As it stands, since we are treated as a Federal agency, it 
means that people in those positions are not allowed to run for 
elective office in a partisan election. As an example, our ANC 
members are unpaid. These are private individuals they are 
unpaid, they are volunteers, they serve their neighborhoods, 
they serve the District, but because they are considered 
officeholders under the Hatch Act, they are precluded from 
running for partisan office. They cannot run for the City 
Council; they cannot run for mayor; they cannot run for our 
Congressperson's spot.
    Similarly, our school board is in the same posture. They 
are elected on a non-partisan basis but they cannot run in 
partisan elections. As it applies to the Attorney General 
position, I was appointed by the Mayor, this was an appointive 
position beginning in 2011 when I was first appointed, and has 
now become an elective position in a partisan election.
    It means if I wanted to run for this office, or more 
appropriately if some of my senior deputies who have been there 
for years, want to run for this position, they are not 
permitted to under the Hatch Act. Even more preposterously, if 
someone runs and is elected to the Attorney General position 
this term, if that person wanted to run for reelection, they 
would have to resign before they could run for reelection, a 
loss to the public and something that makes no sense.
    The solution, we suggest, is to pass the reforms that 
Congressman Cummings and his colleagues have proposed and also 
to make clear that District of Columbia employees should not 
all be lumped together. We also have judges and folks who work 
in the City Council, which is an elected position as well, and 
they should not be covered by the Hatch Act. It should be for 
Executive Branch employees.
    We certainly support the basic notion of the Hatch Act. We 
are not looking for anybody to pressure or engage in partisan 
activities in carrying out their positions, but by not 
permitting them to run for election, you are depriving our 
electorate of their choices of people who are well qualified 
and you are depriving people who are in good position to help 
the city from running for election.
    We urge you to modify the Hatch Act to pass the reforms 
that have been proposed and to make the tweak as it applies to 
the District of Columbia, that we be treated like local 
government officials and that it only apply to Executive Branch 
officials within the District Government.
    Thank you very much.
    [Prepared statement of Mr. Nathan follows:]

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    Mr. Ross. Thank you, Mr. Nathan.
    I will now recognize Mr. Greiner for five minutes for an 
opening.

                  STATEMENT OF JON J. GREINER

    Mr. Greiner. Good morning, Chairman Ross and members of the 
Committee on Oversight and Government Reform.
    My name is Jon Greiner, former Police Chief of Ogden City, 
Utah, former Utah State Senator and Hatch Act violator. I 
appreciate the opportunity to appear before today to discuss my 
experience with the Office of Special Counsel and their 
enforcement of the Hatch Act.
    Early in March 2006, I was recruited to run for the Utah 
State Senate by a number of legislators and representatives of 
the Utah Attorney General's Office. I scheduled time with the 
Ogden Mayor and City Attorney to talk about the City's position 
on the matter in the final days of the candidate filing period 
as their employee to get their approval as this service is 
determined by them to be in the best interest of the residents 
of Ogden City.
    On about October 3, 2006, I was contacted by phone by an 
attorney of the Office of Special Counsel about an anonymous 
complaint allegedly filed against me regarding a potential 
Hatch Act violation. She asked that I summarize the current 
police department grants in a letter back to her. I sent her an 
email with that summary.
    Over the next couple of weeks, we corresponded back and 
forth to give her everything she needed to conduct her 
investigation. She sends me a letter towards the end of October 
saying she believes I am in violation of the Hatch Act. We hire 
attorneys and get started trying to figure out what the 
encompassing part of all this means.
    The best case law we could find at the time was a recent 
decision about a year old involving an assistant police chief 
named Richard Perkins out of Henderson, Nevada. We contact him, 
we contact others, and go through the limited amount of 
paperwork we could find in 2006 trying to comply with the 
request from the Office of Special Counsel.
    By November 3, there was a response from the Special 
Counsel's Office outlining their desire to have me get out of 
the race or give up my job as a police chief. We responded 
trying to understand and trying work out things to no avail. 
They tell us in the correspondence towards the end of October 
of that year that they may seek a complaint against me and the 
city of Ogden.
    I had suspended my campaign and tried to work through all 
of this to no avail. There was absolutely no negotiation with 
the Office of Special Counsel. There was nothing they wished to 
discuss with our attorneys, so we went through the election and 
I was elected. Two years later, we were put on notice that they 
were going to come after the city of Ogden for allowing me to 
run for elective office.
    There's a hearing before an administrative law judge in 
early 2009. Again, the attorneys in the State of Utah don't 
understand the Act. It became an issue of do we get discovery, 
do we get to have witnesses, do we get to have anything that at 
a hearing before a judge or others and we got nothing.
    We appeal the conviction of the ALJ to the Merits Systems 
Protection Board and in a decision in November 2011, they ruled 
that the ALJ was correct in her interpretation of the Hatch Act 
law and directed my termination from the city happen by the end 
of 2011 or that the city forfeit two years of my salary as a 
penalty and future grant money.
    To that point, there were hundreds of pages of legal 
documents on both sides of this issue outlining the selective 
enforcement and the misunderstanding by the State attorneys; 
there were several hundred thousands of dollars in attorneys' 
fees spent to try and understand the public good of this civil 
law that impacts State and local government without any 
consideration of the mitigating circumstances, including the 
penalties as outlined by Representative Chaffetz to myself. I 
cannot have an executive position in the State of Utah in law 
enforcement as a prohibition for 18 months. That exceeds 
penalties Federal courts give convicted felons who have 
committed crimes for which jail is a possible remedy.
    I offer up Barry Bonds, 30 days house arrest and a $4,000 
fine for lying to a Federal grand jury. That penalty is minimal 
in comparison to what the Hatch Act has imposed on me for 
nothing more than being a point of contact in a grant for which 
the city of Ogden's police department did not receive one 
penny.
    Thank you for your time and I am prepared to answer any 
questions you may have.
    [Prepared statement of Mr. Greiner follows:]

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    Mr. Ross. Thank you, Mr. Greiner.
    Mr. Coffina, you are recognized for five minutes for an 
opening.

                 STATEMENT OF SCOTT A. COFFINA

    Mr. Coffina. Chairman Ross, Ranking Member Lynch and 
distinguished members of the Subcommittee, my name is Scott 
Coffina and I appreciate the opportunity to share my thoughts 
on reform of the Hatch Act.
    As a former Associate Counsel for President George W. Bush 
whose responsibilities included advising and training the White 
House staff on the parameters of the Hatch Act, and as a former 
staffer in President Reagan's Office of Political Affairs who 
had to work under its restrictions, I applaud this committee's 
efforts to enact sensible changes to this law.
    The Hatch Act serves a very important purpose for our 
Federal Government, freeing the government workplace from 
partisan political influence and coercion. The Hatch Act does 
protect Federal workers from political pressure when performing 
their jobs and benefits the public by delivering performance 
that is free from partisan political influence.
    Still, the benefits of the Hatch Act come with a price. Its 
restrictions on political activity implicate the First 
Amendment rights of millions of Federal employees as well as 
those of State and local government officials whose jobs are 
funded at least in part with Federal dollars. Because political 
activity is at the heart of First Amendment protection, 
restrictions on political activities must be carefully 
considered to be sure they serve the purpose of keeping the 
government workplace free of partisan political influence and 
corruption.
    It was in this spirit that the last significant overhaul of 
the Hatch Act was enacted in 1993. The 1993 amendments 
dramatically loosened the restrictions of the Hatch Act that 
essential locks government employees out of the political 
process entirely. With a laudable focus on protecting the 
integrity of the government workplace, the changes enacted in 
1993 struck the appropriate balance by allowing most Federal 
employees to engage in political activity while off duty while 
maintaining strict restrictions on political activity in the 
government workplace.
    The Office of Special Counsel has done a commendable job of 
trying to maintain that balance between the First Amendment and 
its mandate to enforce the Hatch Act and provide guidance to 
government employees on what the law does and does not permit. 
Its program of providing advisory opinions gives practical, 
timely guidance to prudent government employees or counsel who 
ask questions before engaging in conduct about which the law is 
unclear.
    Still, in recent years, we have seen ambiguities in the 
Hatch Act lead to confusion in government ranks and uneven 
enforcement by the Office of Special Counsel. In addition, a 
lot has changed over 20 years and the time is right to consider 
amending the law to address its ambiguities, to keep pace with 
technology and to address the areas where the law does not work 
well or doesn't meaningful serve its purposes.
    The touchstone of reform ought to be striking the right 
balance between First Amendment rights and reinforcing those 
provisions of the Hatch Act that most serve its goals, namely 
that Federal employees may not use their official authority or 
influence to interfere with the outcome of an election, may not 
solicit or accept political contributions, may not pressure 
subordinates or colleagues to engage in political activity, may 
not solicit or encourage political activity by anyone within 
the business before their agency and may not use official 
resources towards political ends.
    With these principles in mind, I believe that necessary and 
sensible Hatch Act reform would include the following changes. 
One is lift the prohibition on State and local employees 
running for political office. All three of the bills proposed 
so far include this commonsense reform. This arbitrary 
restriction only on State and local officials whose jobs are 
supported by Federal funds taxes the resources of the Special 
Counsel without appreciably advancing the goals of the Hatch 
Act.
    Two, introduce graduated sanctions to address minor 
infractions as proposed by Representative Cummings. Most 
government employees try to play by the rules. If they 
mistakenly wear a campaign button in the office, a warning 
should be sufficient to vindicate the law.
    Three, treat outside political communications during the 
work day from personal smartphones and BlackBerrys in the same 
manner as personal phone calls and emails. Technology has made 
it possible to quickly send political messages to outsiders 
without using government resources or significantly disrupting 
the sender's work day. It has also made the requirement that 
when employees leave the Federal building to do so impractical 
and unenforceable.
    Political communication should be permitted in the same 
manner that personal calls are permitted as long as they are 
not excessive, are not directed to other employees or otherwise 
violate the Hatch Act.
    Four, Federal employees who wish to post permissible 
political messages on blogs or social media pages should not 
have their government title appear on those pages even if only 
in their profile. In my view, there is too much risk that the 
title will land undue weight to the otherwise personal 
political views of the employee. Similarly, government 
employees whose title appears on their social media pages 
should be responsible to remove any political fundraising 
solicitations placed on their page by others within a 
reasonable time.
    Five, the definition of who is included in the relaxed 
restrictions for certain White House employees and senior 
government officials should be clarified. First, there should 
be a presumption that all appointed White House employees fall 
within the relaxed restrictions. Second, all White House 
employees, except perhaps those in the national security area, 
should be permitted to assist the President and Vice President 
in their political activities.
    Under the standards employed by the Office of Special 
Counsel in its January 2011 report on the Bush Administration, 
only high level White House employees can assist the President 
with the preparation and execution of a political trip which 
simply is not practical.
    Sixth, and finally, recent controversy involving both 
parties demonstrates the importance of properly allocating the 
cost of political and official events to ensure that the public 
is not underwriting political activity. The classification of 
events whether official or political should be done primarily 
according to objective criteria about the origin and execution 
of the event rather than focusing on the subjective motivation 
behind them. Some questions aimed at evaluating these events 
objectively are set forth in my written testimony.
    Once again, I appreciate the Committee's bipartisan efforts 
for meaningful Hatch Act reform and the opportunity to share my 
thoughts with you today. I would be happy to address any 
questions you might have.
    [Prepared statement of Mr. Coffina follows:]

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    Mr. Ross. Thank you, Mr. Coffina.
    Mr. Adler, you are recognized for five minutes for an 
opening.

                     STATEMENT OF JON ADLER

    Mr. Adler. Thank you, Chairman Ross, Ranking Member Lynch, 
distinguished members. This is a rare instance for me where I 
actually agree with everyone on my panel. Therefore, I don't 
think I don't want to waste everyone's time by sort of 
restating what has already been said. I am proud everyone is 
working so well together to address this important issue.
    I mean the main theme here is we don't want the Hatch Act 
to become a hatchet act. I think, based on the recommendations 
expressed, we are definitely going in the right direction. I 
think the Hatch Act Modernization Act put forth by Ranking 
Member Cummings is on point. It is a proactive effort to 
address the serious issues from my perspective and my 
membership, representing 26,000 members of the Federal law 
enforcement community, the concerns in terms of the penalties, 
as Mr. Coffina stated, having those lesser penalties to address 
an issue of a button, a screensaver or something where 
technically it might be a violation of the current statute but 
it doesn't rise to the level of termination. Certainly it 
should ease the resource pressures on Ms. Lerner and her very 
well organized staff.
    Having said that, I think it is more important to yield my 
time so that we can get to questions and other comments that 
are relevant to moving this forward to a collective 
understanding and proper conclusion.
    I am here to answer any questions. Thank you.
    [Prepared statement of Mr. Adler follows:]

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    Mr. Ross. Thank you, Mr. Adler.
    I also want to echo your sentiments about the cooperation, 
especially with my colleagues and Ranking Member Cummings for 
his bill in this regard.
    Ms. Lerner, with regard to investigations under the Hatch 
Act and violations, how much money does OSC spend annually 
investigating State and local Hatch Act claims?
    Ms. Lerner. It is tough to put a number on it. I can tell 
you our agency's entire budget is around $18.5 million. We have 
about 110 employees altogether and have 8 employees in our 
Hatch Act Unit. Our whole agency gets about 4,600 individual 
cases per year through all of our program areas, and the 
numbers are going up pretty significantly. We have had a 10 
percent increase.
    Mr. Ross. Would you say exponentially?
    Ms. Lerner. Yes. We are seeing exponential growth in every 
single one of our program areas.
    Mr. Ross. In terms of complaints?
    Ms. Lerner. In terms of complaints in the Hatch Act Unit, 
in every one of our units. We also do disclosures, we do USRO, 
we do prohibitive personnel practices like retaliation, so we 
are really stretched.
    Mr. Ross. Could you pinpoint dollarwise? Is it hard?
    Ms. Lerner. I really hesitate to put a dollar number on it. 
I can give you specific numbers about the number of cases that 
we have in our Hatch Act Unit.
    Mr. Ross. Would you say the State and local Hatch Act 
workload is greater than, equal to or less than for Federal 
Hatch Act violation investigations?
    Ms. Lerner. It is about 45 percent of our entire Hatch Act 
load. Our Hatch Act load right now is over 1,000 cases, 
Federal, State and local, every year and about 3,000 advisory 
opinions every year.
    Mr. Ross. Would you say the State and local investigations 
under the Hatch Act is interfering with the Federal?
    Ms. Lerner. Absolutely.
    Mr. Ross. No question about it?
    Ms. Lerner. Absolutely. We have serious cases, the coercion 
cases, the misconduct cases. As I mentioned, where I would 
really like to be able to put some resources is in the 
education and outreach so we can prevent these things from 
happening in the first place. So many people, you heard the 
testimony today, people don't understand the Hatch Act. If we 
are going to hold employees responsible for being in 
compliance, we have an obligation to them to do some outreach 
and education.
    Mr. Ross. Another aspect of the Hatch Act that is 
disconcerting to me, especially this being an election year, 
have you found the candidates for political office use the 
Hatch Act against each other during these elections?
    Ms. Lerner. Absolutely.
    Mr. Ross. Is it pretty prevalent?
    Ms. Lerner. I would say it is. We are seeing this happen at 
both the individual level with individual candidates. We often 
get complaints from an opponent in a political race, not just 
Republicans versus Democrats. Sometimes it is in the primary 
and a Democrat will file a complaint against a fellow Democrat 
or a political organization.
    Mr. Ross. The mere allegation alone is damaging enough 
regardless of the substance?
    Ms. Lerner. Absolutely.
    Mr. Ross. I understand there is an OSC investigation 
involving Secretary Sebelius with regard to a gubernatorial 
campaign. Do know the status of that investigation?
    Ms. Lerner. We talked with your staff about the status of 
that investigation which has been reported publicly. We 
received Chairman Issa's letter which alleged a potential 
violation of the Hatch Act. As I mentioned, we discussed this 
with the committee prior to the hearing but in accordance with 
our policies, I cannot really add anything further at this 
time.
    Mr. Ross. Can you comment as to when you think that report 
might be issued?
    Ms. Lerner. It is being actively investigated and I 
hesitate to give you a date that may or may not be right. As I 
mentioned, we have eight lawyers to cover all of our Hatch Act 
cases, but we are making this one obviously a priority. We will 
get through it very quickly as we can.
    Mr. Ross. Thank you.
    Mr. Greiner, with regard to the allegations against you and 
the violations found, specifically what was the amount of the 
grants involved?
    Mr. Greiner. I can go back to each of the grants. There 
were four grants, they were all multi-jurisdictional type 
grants. We try to do that to get the grants. The grant that was 
the focal point of the decision by the ALJ was a $400,000 grant 
for a dispatch center that had nothing to do with the police 
department.
    Certainly we get the benefit of the dispatch center being 
there but it was a cooperative effort that was put together to 
try and get some grant money for State communications sites to 
improve the connection between police and fire departments in 
two counties. We had already built a new building with that.
    Mr. Ross. Upon receipt of the grant money, did you have any 
control over where it went?
    Mr. Greiner. No, and not one penny came to the police 
department I managed.
    Mr. Ross. You had absolutely no authority over the delivery 
or distribution of the grant money?
    Mr. Greiner. Not one penny.
    Mr. Ross. You talked about several hundred thousand dollars 
with regard to lawyer fees. How much did it personally cost you 
to defend yourself in this confrontation?
    Mr. Greiner. I was out of pocket over $30,000 personally 
before the Office of Special Counsel filed a complaint against 
the city and then the city picked up the remainder of the tab.
    Mr. Ross. Thank you. My time has expired and I will now 
recognize the Ranking Member of the full Committee, Mr. 
Cummings from Maryland.
    Mr. Cummings. Thank you very much, Mr. Chairman.
    Ms. Lerner, on March 7, I introduced the Modernization Act. 
The legislation implements two recommendations the Special 
Counsel made for immediate reform. First, the legislation 
eliminates the Hatch Act prohibition on State and local 
government employees running for office. I understand that is 
very important to you. This would take the Federal Government 
out of the business of telling State and local government 
employees such as Mr. Greiner whether they can serve their 
country by running for elected office.
    Ms. Lerner, can you explain why eliminating this provision 
is so important to you and your office?
    Ms. Lerner. Sure. I would like to start though by thanking 
you, Mr. Cummings, for introducing the Hatch Act legislation. I 
appreciate that very much. Your efforts are truly appreciated.
    The reason this is so important as I mentioned in my 
opening statement, there are a number of reasons the State and 
local provision is so important to my office. First, just from 
the standpoint of fairness, I don't think I have talked to 
anybody, either here in Congress or in government, who thinks 
that it is fair that people cannot serve their local 
communities just because they are employed by State or local 
government that receives some money. It can be a very small 
amount or they can just be touched by Federal funds, so there 
doesn't have to be a strong connection, and then they can't 
serve, they can't run for office.
    It is first the issue of fairness. Is this really something 
we want to do? Is it the proper role for us to be telling State 
and local governments how their employees should be behave? As 
I also mentioned, most States have their own rules for how 
their employees should behave. Most states have their own rules 
that would cover this issue. They have either mini-Hatch Acts 
or ethics rules. I think it is appropriate for those States and 
localities to enforce prohibitions on their own employees.
    Mr. Cummings. I am sure you have taken a look at those 
State provisions. There was an intent when this Hatch Act was 
developed to address certain issues. I guess what I am trying 
to figure out have circumstances changed over time and they 
become outdated? If the States are doing this, what is the 
difference between what a State is doing and what the feds are 
doing now? Do you follow me?
    Ms. Lerner. I am. I think what has happened since this Act 
was first enacted and since it has been amended is that there 
has been an influx of Federal funds into the States, 
particularly after 9/11 in the law enforcement area. Now 
virtually every law enforcement agency at the State and local 
level receives some Federal funds. The breadth of this Act is 
much, much larger than it was ever intended.
    There are sort of three parts to this. One is the running 
for partisan political office and that is the only thing the 
legislation would strongly affect. The coercion issue and the 
improper use of office would still be there, so we would have 
enforcement ability in those two areas. As far as I can see, 
there is no real purpose in saying someone cannot run for 
office just because they happen to work for a State or local 
government that receives some Federal funds or that their job 
is touched by some Federal funds.
    Mr. Cummings. What was the original intent? Do you 
understand what I'm saying was it to try and block people from 
running for office? Was it that people in office were saying we 
don't want people running against us? Are you following what I 
am saying?
    Ms. Lerner. I think the original intent was to try and keep 
politics out of the civil service. Frankly, it is having the 
opposite effect now. It is becoming much more politicized 
because of this provision. I think it was never intended to do 
that and these consequences were unforeseen at the time.
    Mr. Cummings. So you are seeing situations where you have a 
law, you have to enforce it, but you yourself look at it and 
say, wait a minute, there is something awfully wrong here?
    Ms. Lerner. Yes. Within a couple months of my taking office 
in June, I was having conversations I think with both you and 
Chairman Issa about this law. We sent over some proposed 
legislation in October to try and resolve it. We are going to 
enforce the law. The way the law reads right now, it is not 
something I am particularly comfortable doing but we are going 
to enforce it because that is our job, but I sure hope you all 
can change it.
    Mr. Cummings. Thank you.
    Thank you, Mr. Chairman, for your courtesy. I really 
appreciate it.
    Mr. Ross. Thank you.
    I now recognize the gentleman from Massachusetts, the 
Ranking Member of the Subcommittee, Mr. Lynch, for five 
minutes.
    Mr. Lynch. Thank you, Mr. Chairman.
    I want to thank all the witnesses. It is unusual that we 
get a whole panel that basically agrees and as well, that 
agreement is reflected up here on the dais. Since we all agree 
this is a good idea, we will probably have to kick it upstairs 
to party leadership and they will come up with some reasons why 
we really don't agree because this can't happen.
    Mr. Adler, first of all, I want to acknowledge that this is 
actually National Police and Peace Officer Week. From the dais 
on both sides, we want to acknowledge the fact that you and 
your members do some terrific work in protecting us and the 
government, the Capital and also the Federal Government and the 
Nation. We appreciate the risk that you confront every single 
day. These have been some tough months for law enforcement all 
across the country. Our prayers and thoughts go out to you and 
your members. We really appreciate the work you do every day.
    You were very economic in your remarks initially, so I have 
to punish you for that. In terms of education on the Hatch Act, 
as Counsel Lerner has pointed out, after 9/11 a lot of Federal 
money got pushed out to both police and fire, fire grants, cops 
grants, so now this connection, however tenuous it might be, is 
there and precludes people from running for office and other 
limitations are put on you as well.
    How do your folks get educated on the Hatch Act? Are they 
advised in advance or is it when they trip up and all of a 
sudden it comes down on them?
    Mr. Adler. Maybe it is a whisper in advance. I think we 
could learn from the other areas of training that we get by way 
of ethics, sexual harassment, computer security where we get 
these online training sessions where we can actually see 
something. I think typically what happens is whether it comes 
down from the Attorney General or there is some memo that will 
come down prior to an election, right about now, that gets 
circulated. It could be a three, four or five page letter, fun 
size probably eight, which is a challenge for me, and although 
it may be well written and thorough, it doesn't exactly rise to 
the same level or the same effect that other types of training 
the government delivers again by way of ethics training and 
other areas of importance.
    As Ms. Lerner said, there is an absolutely better outreach 
and education. I think certainly we could use examples and Mr. 
Coffina hit upon it, a screen saver issue, a Facebook posting. 
We now have people authorized to work out of their home, so if 
during your lunch period at home, which I guess they decide, 
they go on their computer and make a Facebook entry, do they 
really understand what they are doing?
    I think, in general, everyone has sort of a broad sense as 
to what the Hatch Act is, but when you break it down, as Ms. 
Lerner made clear, we are putting her on the spot when someone 
technically violates the Hatch Act unwittingly, that they are 
subject to termination, which is unfair and unreasonable.
    Mr. Lynch. By having a graduated penalty process where some 
of the very minor you know, wearing a pin as Mr. Coffina 
indicated, it is the death penalty, basically severance from 
employment is what has to happen. That graduated penalty 
process may be a warning, take off the button, that type of 
thing would certainly lighten the load for Ms. Lerner and her 
staff.
    This all seems to be commonsense. You would think we should 
be able to come up with these modest and I think very sound 
recommendations.
    I am going to suspend as well. Thank you. I yield back.
    Mr. Ross. Thank you, Mr. Lynch.
    I now recognize the gentlelady from the District of 
Columbia, Ms. Norton, for five minutes.
    Ms. Norton. Thank you very much, Mr. Chairman.
    I appreciate you invited a witness from the District of 
Columbia and a particularly well qualified witness so we can 
get to this longstanding issue.
    This House actually, I think in my first term in Congress, 
actually changed the Hatch Act not to apply to the District. 
The bill did not pass the Senate and here we are again more 
than 20 years later.
    Mr. Nathan, at page six, you say, ``I stated earlier, the 
legislation should be amended so that similar to Congress, the 
Hatch Act does not apply to the District's legislative or 
judicial branches.'' Do you have any issue with the legislation 
with respect to the District of Columbia as it is now framed in 
the bill?
    Mr. Nathan. We support the bill which would move the 
District of Columbia away from being treated as a Federal 
agency and being treated more like a State and local 
jurisdiction and obviously allowing people to run in partisan 
elections.
    I think it could be a tweak to make it clear that when it 
talks of the D.C. Government, it is talking about the Executive 
Branch of the D.C. Government. We would be prepared to supply 
some language to that effect because the Federal Hatch Act does 
not apply to the judiciary or to legislative personnel, not 
only members of Congress but staff as well. I think it ought to 
be parallel.
    Ms. Norton. I would appreciate receiving your suggestions 
on that modification.
    Mr. Nathan. I would be delighted.
    Ms. Norton. Mr. Coffina, I must tell you, you waded into an 
area that I don't envy you for doing. That has to do with the 
President and his employees as they make trips during campaign 
season. I must tell you it reminded me of what we go through 
here when we are putting out a newsletter and we have to see 
what words can or cannot be used. It is a painful exercise.
    You speak about the President's trip on student loans, I 
think. On student loans we get into a subject that comes up 
during every election. It is perhaps the most partisan of 
issues. You suggest there is a way to somehow thread this 
needle. I think it is important that you point out examples 
that are indeed troublesome.
    In the case of student loans, this was a matter that was 
not in the Republican budget at all and the President kind of 
barnstormed where you might expect him to, student campuses, 
and discussed this issue. It was the first time the issue had 
been discussed in the Congress. It was profoundly an official 
issue. You say, I think with great fairness, that this matter 
involves the subjective, second guessing, but you do suggest 
there are ways to solve it.
    I have my doubts, Mr. Coffina, because you indicate there 
is an authoritative legal opinion from 1982 and I can tell you, 
I don't think anybody can find any campaign since 1982 where 
this was not a major issue for the other side, so I have my 
doubts about what to do about it. Your notion about the theme 
of the remarks, free existing or not, again, I am struck with 
how this might be quite unenforceable.
    I hate to see something that may be a violation not be 
tagged but I must say there has to be a way other than going 
through a list the way we do when we go to franking to see if 
that word or this word should have been used or that detour or 
why they do this or was it because of this or that reason. It 
strikes me that we are into a thorn here.
    I would like to note if you really think that these 
suggested notions of how to evaluate whether the trip is 
political or not. Do you suggest they haven't been used? Has 
anybody ever sought to enforce these? Has there been an 
enforcement action that anybody paid attention to?
    Mr. Coffina. Congresswoman, I personally sympathize with 
the complexity that you have described, having dealt with this 
myself when I worked in the White House trying to sort out, as 
I had events and expenses I needed to approve, is this 
political, is this official and what are standards to apply. It 
is very difficult.
    Unfortunately, the current standards in place for it don't 
go anything beyond saying it is a subjective evaluation and 
must necessarily turn on the facts. What I tried to do in my 
written testimony, I tried to introduce and reflect the 
objective criteria I tried to apply when I was making these 
determinations myself, understanding that subjective motivation 
and where did this event come from is a part of it.
    There are certain yes or no questions that you can ask to 
try to say which is the better way to classify this, what is 
the better way to make sure the expenses for this trip are 
properly borne by the public or properly borne by a political 
party. I was looking for objective criteria that might help 
guide that.
    Ms. Norton. Mr. Coffina, you say tried to use these 
criteria when you were in the White House. Were you able to use 
them? Did others in the White House use them? Were they useful 
then?
    Mr. Coffina. Yes, I found them to be useful. I found in 
evaluating, for example this was an issue in the Office of 
Special Counsel's report from 2011, if a surrogate event took 
place in a district of an incumbent, the question was is this 
politically motivated to help the incumbent? This is an 
objective question. Where did the event come from? Where did 
the request come from? Did the member's official office invite 
the President or a surrogate to participate in that local 
official event or did it come and originate within a campaign 
staff?
    Mr. Ross. Unfortunately, the gentlelady's time has expired 
but we will be able to supplement the record with questions to 
the panel as well.
    With that, I will recognize the gentleman from Virginia, 
Mr. Connolly, for five minutes.
    Mr. Connolly. Thank you, Mr. Chairman.
    Thank you to the panel for some thought provoking 
testimony.
    Ms. Lerner, you heard Mr. Coffina enumerate a number of 
what he characterized as practical, common sense changes to the 
Hatch Act that would make it more workable. What is your 
reaction to his enumerated list?
    Ms. Lerner. In the category of political travel, I want to 
just note that we did issue a very extensive, thorough advisory 
this past fall on October 6, 2011. We put a lot of thought into 
how best to give guidance to the government and to employees 
about political travel. I think that really has, in many ways, 
moved the ball forward and provided the type of clarity that 
has been needed. Ms. Galindo-Marrone can address that issue a 
bit more as well.
    Mr. Connolly. But did you have any major exceptions to Mr. 
Coffina's list? You have already testified you want to see 
changes to the Hatch Act?
    Ms. Lerner. I do. I have to tell you quite honestly, we are 
not seeing a lot of cases about these other peripheral issues--
political travel, social media, and frankly the Facebook stuff 
hasn't been an issue. Email is a little bit more of an issue. 
On the social media issue, certainly the Internet and social 
media have dramatically changed the way we gather and share 
information and the way Federal employees use it has 
implications, but as an enforcement issue, it really hasn't 
been much of an issue. We have had maybe two or three of these 
cases.
    Mr. Connolly. In response to Mr. Cummings' question to you, 
he asked why does the Hatch Act cover State and local 
government, what was the thinking? Your response was, ``I think 
the thinking was to try to protect civil service from partisan 
overt political activity.'' God knows we have seen in American 
history, State and local governments used as instruments of a 
political machine, organization or even candidates. That goal 
might be a worthwhile one but the question is do we need a 
Federal umbrella to be dictating to State and local governments 
how they want to conduct their own business?
    Did I understand your answer? You said that was the purpose 
and then you said, but it seems to have the opposite desired 
effect. What did you mean? What is the opposite? Are State and 
local governments being taken over by political machines?
    Ms. Lerner. Let me clarify that the only aspect of the 
State and local candidates' provision that we are advocating to 
reform is the ability for folks to run for election, partisan 
political election. They can already run for non-partisan 
positions.
    Coercion matters would still be within our jurisdiction. 
Improper use of political office would still be covered. The 
stuff that I think was originally intended to be covered on the 
State and local level would not be affected at all.
    The reason that the running for partisan political office 
is creating a lot more angst is because it is being used 
primarily as a weapon. We can only take on those cases when a 
complaint is filed with our office. We don't go looking for 
them. The folks who file these complaints, for the most part, 
are political opponents. It is coming within party, so in a 
primary a Democrat could file a complaint against a fellow 
Democrat who they are running against.
    Mr. Connolly. Just an observation, running for partisan 
political activity as opposed to running for non-partisan 
political activity, in Virginia many cities and many towns run 
ostensibly on a non-partisan basis, getting around the Hatch 
Act.
    Ms. Lerner. Yes.
    Mr. Connolly. It is an enormous fiction that everybody 
understands. For example, Mr. Cantor, the Majority Leader in 
this House, one of his key aides is an elected official in 
Fairfax City in my district, does a good job, but there is no 
fiction about what party affiliation he has and what he does on 
his day job. While it is a useful tool, I guess, to get around 
the Hatch Act, I am not sure it actually achieves the desired 
outcome.
    Ms. Lerner. The Mayor of Chicago is a non-partisan 
election.
    Mr. Connolly. Yes, he is. He is very non-partisan. I know 
him personally.
    Ms. Lerner. Whoever happens to be in that position at the 
time. You raise an important point and it creates this feeling 
of unfairness. We have gotten lots of complaints from folks 
saying, you didn't tell the person in the county over that they 
couldn't run and they work for the government. We get a lot of 
those complaints. We have to say we are really sorry but in 
that county, school board is non-partisan. It creates this 
feeling about arbitrariness and unfairness. It shouldn't matter 
what county you live in.
    Mr. Connolly. Thank you, Mr. Chairman.
    Mr. Ross. Thank you.
    Before I recognize our next member, I recognize Mr. Lynch 
for submission of a report.
    Mr. Lynch. Thank you, Mr. Chairman.
    I would ask unanimous consent that the Committee may accept 
this testimony, ``The Hatch Act, Options for Reform,'' a 
statement submitted for the record by the Federal Managers 
Association.
    Mr. Ross. Without objection, it shall be made a part of the 
record.
    Mr. Ross. Thank you.
    I now recognize the gentleman from South Carolina, Mr. 
Gowdy, for five minutes.
    Mr. Gowdy. Thank you, Mr. Chairman.
    Mr. Chairman, it has been 15 years since I was subject to 
the Hatch Act so forgive me if I am playing catch-up a little 
bit. Who would be the most knowledgeable panel member for me to 
pose my question to?
    Mr. Ross. Ms. Lerner.
    Ms. Lerner. It depends on what your question is about.
    Mr. Gowdy. It is kind of remedial. My understanding is 
Executive Branch employees may not solicit campaign contributes 
from their peers.
    Ms. Lerner. That is right.
    Mr. Gowdy. Are there any exceptions to that?
    Ms. Lerner. I am actually going to punt this one to Ana 
Galindo-Marrone who is the Chief of our Hatch Act Unit and 
knows every detail about how the Hatch Act affects Federal 
employees.
    Mr. Gowdy. That sounds like a great person to punt it to. 
Are there any exceptions to that general rule?
    Ms. Galindo-Marrone. Good morning, Congressman.
    First, the solicitation prohibition is broader than just 
prohibiting Federal employees from soliciting other colleagues. 
The prohibition extends to anyone, so no Federal employee in 
the Executive Branch can solicit, accept or receive political 
contributions. The one exception concerns Federal labor 
organizations and Federal employee organizations.
    Mr. Gowdy. That is what I thought. Why that exception?
    Ms. Galindo-Marrone. I am not sure of the reason why.
    Mr. Gowdy. You were just described as the most 
knowledgeable person on this issue. If you can't tell me why 
there is an exception for Federal labor organizations, who can 
I ask?
    Ms. Galindo-Marrone. I reviewed very briefly last night in 
preparation for this the legislative history and it is somewhat 
scant in terms of what Congress was thinking when the exception 
was introduced. It does have some limitations, so there are 
some qualifiers in terms of the exception if you want me to go 
over that.
    Mr. Gowdy. Sure.
    Ms. Galindo-Marrone. The Federal labor organizations, 
although the members of those groups can solicit, they still 
cannot solicit, accept or receive while on duty or in the 
Federal workplace, the solicitation.
    Mr. Gowdy. Is there something called official time?
    Ms. Galindo-Marrone. Correct, but under the Hatch Act, even 
official time, union official time is considered on duty for 
purposes of the Hatch Act.
    Mr. Gowdy. So you still cannot solicit?
    Ms. Galindo-Marrone. Correct.
    Mr. Gowdy. If you are at a United States Attorney's office, 
you cannot solicit, participate, but can you show up at a 
political event after hours?
    Ms. Galindo-Marrone. After hours, any Federal employee can 
attend a political event.
    Mr. Gowdy. Can their name be on a host committee?
    Ms. Galindo-Marrone. It cannot. I was going to explain in 
terms of the union exception, the solicitation is only specific 
to the union's pact and cannot be directed at anyone that is a 
subordinate, so when terms of lets say a fundraising event 
where there is a host committee, typically even union members 
will not be able to be listed as a member of the host 
committee.
    Mr. Gowdy. I am still trying to understand why there would 
be an exception for Federal labor organizations. Could you 
hazard a guess?
    Ms. Galindo-Marrone. I could try to hazard a guess if I did 
some more research and maybe we supplemented a response after 
today's hearing.
    Mr. Gowdy. Mr. Chairman, you are the most knowledgeable 
person I know.
    Mr. Ross. If I am you reference on that, we are not in good 
shape here.
    The gentleman from Massachusetts.
    Mr. Lynch. I might be able to illuminate a little bit. Up 
until 1993, I believe, the United States Postal Service was 
prohibited, any postal worker from getting involved in a 
campaign at all. At that point, letter carriers, clerks who 
really had a rather peripheral role in the Federal 
appropriations process were granted the ability, they were 
given relief under the Hatch Act. This may have been something 
that happened at that time where we basically removed them from 
limitations on the Hatch Act. This may have been something that 
happened at that point.
    Mr. Gowdy. I thank the Ranking Member. To your knowledge, 
is it limited to just postal employees, this exception?
    Ms. Galindo-Marrone. It includes all Federal labor 
organizations and Federal employee organizations that had a 
pact in existence in 1993 when the Act was passed.
    Mr. Gowdy. Mr. Chairman, can I ask one more question?
    Mr. Ross. Without objection, yes.
    Mr. Gowdy. I want you to assume there is a county employee 
who wants to run for coroner, which is still an elected 
position in South Carolina. Some people call them medical 
examiners, some jurisdictions have forensic pathologists. We 
still have coroners. The office that employs this putative 
coroner receives some Federal grant monies.
    Does this person who seeks to run for partisan office as 
coroner have to resign his or her job, take leave without pay, 
not campaign during working hours? What are the limits, even if 
it is just a small amount of a Federal grant that goes to an 
office that happens to employ this person, how would he or she 
be impacted?
    Ms. Galindo-Marrone. If the individual has duties in 
connection with the Federal grants that are being received by 
the office, that is the first qualifier. It is not enough that 
the agency received Federal grants, the individual would have 
to have duties in connection with the Federally-financed 
programs.
    If that is the case, then currently, as the law reads, the 
individual would have to resign from their State or local 
employment in order to run for partisan office.
    Mr. Gowdy. Is there any weighing of how much connection 
that person would have? Maybe they had 5 percent supervisory 
role or is it just a bright line test?
    Ms. Galindo-Marrone. Currently, there is some case law in 
terms of a de minimis exception and the case law on that point 
is less than one-tenth of one percent of the person's time in 
connection. Typically, in the office, we look at 2 percent or 
less to be de minimis.
    Mr. Gowdy. Thank you, Mr. Chairman.
    Good morning to the Attorney General from the District of 
Columbia.
    Mr. Nathan. Good morning. It is good to see you again.
    Mr. Ross. Thank you.
    I will now recognize the gentleman from Illinois, Mr. 
Davis, for five minutes.
    Mr. Davis. Thank you very much, Mr. Chairman.
    I want to thank all of the witnesses for coming.
    I believe that all of us here believe in the importance of 
the Hatch Act and continuing its prohibition on Federal 
employees engaging in political activity while on duty, in the 
Federal workplace while using Federal vehicles.
    However, we also recognize that new technology such as 
laptops, andBlackBerrys and new workplace developments such as 
telework have made it not always clear to employees what 
constitutes on duty and the Federal workplace.
    I appreciate the panelists making themselves available this 
morning to discuss how we can address updating the realities of 
the 20th Century Federal workplace and clarify what might be 
ambiguities in the law. Ms. Lerner, you pointed out that one of 
the ambiguities in the statute that the Office of Special 
Counsel would like Congress to address is the definition of 
political activity. You recommended that Congress codify the 
definition of political activity that is currently set forth in 
the Hatch Act regulations.
    Could you elaborate for us why you believe this term needs 
to be defined in the statute even though it is already defined 
in the regulations?
    Ms. Lerner. The Hatch Act regulations current define the 
term as ``activity directed at the success or failure of a 
candidate for partisan political office, political party or 
partisan political group.'' That is 5 C.F.R. 734.101. We have 
been using that definition that is in the regulations to define 
what is political activity.
    We think that Congress, in 1993, created a bright line rule 
that prohibited most Federal employees from engaging in 
political activity while on duty but they kind of missed the 
step of defining what political activity means, so we have been 
using the definition that is in the regs. That is a perfectly 
good definition; it just seems to make sense that it be 
codified.
    Mr. Davis. I am thinking of situations that I have 
personally known where individuals may have been working for 
State government and there might have been some grant activity 
from the Federal Government that funded a part of what it was 
that they did. I am recalling one woman who ran for the State 
Senate and she was forced to resign from her office, although 
she did file a lawsuit later on after she lost and got her job 
back and was compensated. I never quite understood that but 
that is what happened in that particular case. Her union backed 
her and they won.
    Mr. Nathan and Mr. Coffina, what thoughts do you have on 
Ms. Lerner's recommendation?
    Mr. Nathan. My focus is on the District of Columbia. Mr. 
Cummings asked the question what has changed since 1939 when 
the Hatch Act was passed. With respect to the District of 
Columbia, there has been substantial change because in 1939 we 
had no elected officials in the District of Columbia. We had 
three appointed commissioners by the President, confirmed by 
the Senate and that was the full extent of it.
    Now, as a result of partial home rule, we have a 
Congresswoman who is elected from the District of Columbia; we 
have a Mayor; we have a City Council; we have a school board; 
we have our neighborhood commissioners and now the Attorney 
General's Office is going to be elected.
    It is important so the citizens of the District of Columbia 
can elect their representatives that they be allowed to run 
whether it is in a partisan or non-partisan election. I don't 
think it makes any difference and that the people in those 
offices or in other offices in the District can run. Our main 
focus here is on ensuring that the District of Columbia under 
the modified Hatch Act, under the reforms that you pass, are 
not considered to be an executive agency of the Federal 
Government, but a State or local government and that we be 
allowed to run in partisan elections as local officials should 
be as well.
    Mr. Davis. Thank you very much.
    Thank you, Mr. Chairman.
    Mr. Ross. Thank you.
    That will complete our hearing today. I would ask the 
members who have additional questions to send those 
supplemental questions to the panelists within the next seven 
days. I will ask the panelists to respond accordingly.
    With that, I want to thank you for taking the time today on 
this very important issue.
    This Subcommittee now stands adjourned.
    [Whereupon, at 10:48 a.m., the subcommittee was adjourned.]

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