October 07, 2020

Regulating partisan political activities of certain employees of a federal, state, municipal, educational or research entity

The Hatch Act, 5 U.S.C. §§7321-7326, regulates partisan political activities of most federal executive branch employees.

The Hatch Act [Act] also applies to 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. 

However, certain state public officers such as the governor, the mayor of a city, and the elected head of an executive department are exempted from the Act, 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.

The Hatch Act permits public officers and employees to be members of a political party and even serve as officers in that party, but prohibits the use of their official authority or influence for the purpose of interfering with or affecting the results of elections or the nominations of candidates for those elective offices. The Act also bars 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.

In Matter of Blackburne, 211 AD2d 13, [motion to appeal denied, 86 N.Y.2d 705], the Appellate Division opined that an individual otherwise entitled to an "administrative due process disciplinary hearing” such as one provided by a Taylor Law collective bargaining agreement [CBA] or by state law may be summarily removed from his or her position under certain conditions.

Blackburne had taken a leave of absence from his employment with a state department [Agency] to seek election to a seat on the City Council even though he had been warned, in writing, by the Agency that in so doing he would be in violation of the Hatch Act and his employment would be in jeopardy. Blackburne's was unsuccessful in his efforts to be elected to the City Council and he returned to his position with the Agency.

The United States Special Counsel subsequently filed a complaint with the Merit Systems Protection Board [Board] charging Blackburne with violating the Act. Following a hearing, the Administrative Law Judge [ALJ] issued a decision sustaining the charge and recommending that Blackburne be removed from his position with the Agency. Blackburne filed exceptions to the ALJ's rulings with the Board. 

Ultimately the Board adopted the ALJ's findings and recommendation and ordered the Agency to remove Blackburne from his position or be faced with the loss of Federal funds equal to two years of Blackburne's annual salary. The Agency summarily terminated Blackburne under color of the Board's determination.

Blackburne challenged the Agency's action, contending he could not be removed or be subjected to any disciplinary penalty absent his being accorded administrative due process mandated by the disciplinary grievance procedure set out the relevant Taylor Law CBA and demanded that the matter be submitted to arbitration as mandated by the CBA.

The Appellant Division disagreed, noting that although Blackburne's violation of the Act had not occurred during the performance of his job-related duties, such misconduct could be considered to be within the ambit of Article 33 of the CBA "since a public employee may be disciplined for off-duty misconduct." 

The court then opined that it need not decide that issue since, in its view, Blackburne's grievance was precluded by the CBA's exclusionary clause set forth in §34.1 of the CBA which bars arbitration of matters where "other means of resolution are provided ... by statute ... applicable to the State".

Finding that the Hatch Act accords a full evidentiary hearing to an accused violator and further provides for judicial review of Board orders through a proceeding in federal district court, the Appellate Division concluded that the parties to the CBA had not expressly, directly and unequivocally agree to submit the subject grievance to arbitration.

Further, said the court, "the arbitration of this grievance would offend public policy," citing Matter of Board of Education [Ramapo] 41 NY2d 527. The Appellate Division explaining that the only penalties for violating the Act are either [1] removal from office or employment, or [2] the subsequent loss of Federal funds otherwise available to the employer. In contrast, observed the court, under the CBA an arbitrator has a range of disciplinary options that may be imposed on the wrongdoer that are much less severe than termination of employment.

Consequently, the Appellate Division held that "to permit this matter to proceed to arbitration would significantly lessen the efficacy of the Hatch Act and frustrate its purpose and scope."

The Blackburne decision is posted on the Internet at https://www.leagle.com/decision/1995224211ad2d131221


 

CAUTION

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.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
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 neither the publisher nor members of the staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.