Wednesday, June 06, 2012

Application of the federal Hatch Act barring partisan political activities by certain State and municipal employees

Application of the federal Hatch Act barring partisan political activities by certain State and municipal employees
Juan Molina-Crespo v United States Merit Systems Protection Board,
547 F.3d 651

Juan Molina-Crespo served as the Executive Director of the Lorain County Children and Families First Council (“LCCFFC”), an Ohio government agency that is financed in part by the federal government. The federal government provides funds to Ohio agencies, which are then passed through to the LCCFFC. The United States Merit Systems Protection Board [Board] determined that Molina-Crespo violated the federal Hatch Act [5 U.S.C. § 1502(a)(3)], which regulates the political activity of certain state employees who administer federal funds. The Board ruled that Molina-Crespo’s actions in violation of the Hatch Act warranted his removal.

The Circuit Court of Appeals said: “It is undisputed that, as Director, Molina-Crespo was subject to the Hatch Act because he was “an individual employed by a State . . . agency whose principal employment is in connection with an activity which is financed in whole or in part” by the federal government.”

Molina-Crespo’s difficulties arose when he declared his candidacy in a primary election for the office of Lorain County Commissioner. The United States Office for Special Counsel (“OSC”), the federal agency charged with administering the Hatch Act, advised him that his candidacy violated § 1502(a)(3) of the Act and that he would either have to resign his position at the LCCFFC or withdraw his candidacy in order to comply with the Act’s requirements.

Molina-Crespo, however, told the OSC that he did not consider himself a “covered employee” subject to the Act because the federal funding the LCCFFC received first passed through various state agencies.

Although Molina-Crespo’s candidacy for Lorain County Commissioner ended when he failed to win the Primary, the OSC filed a formal complaint with the MSPB alleging that Molina-Crespo violated the Act by being a candidate for elective office.

Ultimately the Board ordered the LCCFFC to remove Molina-Crespo from his position as Director within thirty days and warned that, if the LCCFFC failed to dismiss Molina, it would lose federal funds equal to two years of Molina-Crespo’s pay. Molina-Crespo then resigned from his position and sued, challenging the constitutionality of the Hatch Act together with allegations that the Act violated his First Amendment rights and constitutional guarantees of due process and equal protection.

The court noted the Supreme Court has addressed the constitutionality of the Hatch Act’s restrictions on federal employees’ political activities, and has concluded that the Act’s prohibitions are constitutional, citing United Pub. Workers v. Mitchell, 330 U.S. 75 and in Carver v. Dennis, 104 F.3d 847, and that the Sixth Circuit had earlier concluded that there is no fundamental right to be a candidate for political office. Rejecting Molina-Crespo’s efforts to distinguish between federal and state employees with respect to the application the Hatch Act, the Circuit Court of Appeals ruled that a state employee’s participation in political activities violated the Hatch Act and warranted his or her removal from his or her state position.

Similarly, the Circuit Court of Appeals rejected Molina-Crespo contention that the Hatch Act violates the Equal Protection Clause.

Finally, the court held that the Board did not abuse its discretion in concluding that Molina-Crespo’s violation of the Hatch Act justified his removal.

A relevant decision, Matter of Blackburne, 211 AD2d 13, [motion to appeal denied, 86 N.Y.2d 705], holds that an individual otherwise subject to a “due process disciplinary hearing” such as that provided by a Taylor Law agreement or by State Law, may be summarily removed from his or her position on the authority of a Board determination. The Blackburne decision, which addressed the right of an individual to file a Taylor Law contract disciplinary grievance after the Board directed his removal from his position for violating the Hatch Act, held that arbitration would offend public policy as it "would significantly lessen the efficacy of the Hatch Act and frustrate its purpose and scope."

The full text of the Molina decision is posted on the Internet at:

N.B. As earlier noted, officers and employees in the executive branch of state and local government whose principal employment involves an activity financed in whole or in part by federal loans or grants are subject to the Hatch Act. However, certain public officers such as the governor, the mayor of a city, and the elected head of an executive department not in the classified service are exempted, as are individuals employed by educational or research institutions which are supported in whole or in part by the State or a political subdivision of the State.

Another key element of the Hatch Act provides that while public officers and employees may be members of a political party and even serve as officers in that party, they cannot use their official authority or influence for the purpose of interfering with or affecting the results of such elections or the nominations of candidates for those elective offices. Also direct or indirect coercion of public workers to make a loan or to contribute anything of value to an individual or a party or other organization for political purposes is prohibited.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at

Challenging Adverse Personnel Decisions at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.


Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to

Copyright© 1987 - 2017 by the Public Employment Law Press.


N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.