March 29, 2022

Enforcing the federal Hatch Act 101

Although the federal Hatch Act generally prohibits state and local employees serving with state or local government entity whose principal employment is in connection with an activity which is financed in whole or in part by loans or grants made by the United States or a Federal agency, from being partisan candidates for elected office, Section 1502(a)(3) of the Act carves out a number of exceptions.

In particular, the provisions set out in subsection (a)(3) of Section 1502 do not apply to the Governor or Lieutenant Governor of a state or an individual authorized by law to act as Governor; the mayor of a city; a duly elected head of an executive department of a state or a municipality of a state who is not classified under a state, municipal, merit or civil-service system; or an individual holding elective office

A number of state, however, are reported to have authorized "partisan elections" in selecting individuals seeking to be elected to the school boards of public elementary and secondary schools district and a number of other states are reported to be considering enacting legislation permitting "partisan elections" to such pubic school boards.

However there are penalties that may be imposed should the federal Merit Systems Protection Board determines that the "partisan election" of an individual to a public school board constitutes a violated the Hatch Act.

For example, 5 USC 1506 provides:

1. In the event the federal Merit Systems Protection Board finds that a state or a local officer or employee has not been removed for his or her office or employment within 30 days after notice of a determination by the Board that he or she has violated §1502 of the Act, "and that the violation warrants removal" of the individual from such office;

or

2. In the event the federal Merit Systems Protection Board finds that the individual "has been appointed within 18 months after his [or her] removal to an office or employment in the same state in a state or local agency ... which does not receive loans or grants from a Federal agency, 

3. the Board shall make and certify to the appropriate Federal agency an order requiring that agency to withhold from its loans or grants to the state or local agency to which notice was given an amount equal to 2 years’ pay at the rate the officer or employee was receiving at the time of the violation."

Further, in the event the state or local agency "to which appointment within 18 months after removal has been made is one that receives loans or grants from a Federal agency, the Board order shall direct that the withholding be made from that state or local agency."

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. Further, said the court, "the arbitration of this grievance would offend public policy" as might otherwise be required by a collective bargaining agreement" would significantly lessen the efficacy of the Hatch Act and frustrate its purpose and scope, citing Board of Educ. v. Areman, 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 typically has a range of disciplinary options that may be imposed on the wrongdoer that are much less severe than termination of employment.

The New York State Bar Association has posted an article by Sung Mo Kim, Esq. addressing the impact of the Merit Systems Protection Board finding violations of the Hatch Act on the Internet, [URL = https://nysba.org/app/uploads/2020/03/HatchActKimMunicipalFall06.pdf ].

Other "Hatch Act" court decisions involving New York public employees include Kraham v Lippman, USCA, 2nd Circuit, 478 F3d 502 [Political party officials, others, barred from receiving court fiduciary appointments] and In the Matter of Wayne Spence, as President of the New York State Public Employees Federation, AFL-CIO, et al. v New York State Department of Agriculture and Markets et al., 154 AD3d 1234, affd., 32 NY3d 99 [Public employers may prohibit its employees from campaigning for, and holding, elected office subject to its action satisfying the so-called Pickering Balancing Test].

Click HERE to access Chapter 15 of the US Code, captioned "Political Activity of Certain State and Local Employees," posted on the Internet.

 

 

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