Basics of federal law regulating federal, state, municipal and certain other officers and employees engaging in partisan political activities

5 U.S.C. §7321, et seq, An Act to Prevent Pernicious Political Activities and typically referred to as the Hatch Act, was enacted by Congress to express its policy that "employees should be encouraged to exercise fully, freely, and without fear of penalty or reprisal, and to the extent not expressly prohibited by law, their right to participate or to refrain from participating in the political processes of the Nation." Recently significant attention has been focused on provisions set out in law prohibiting partisan political activities by most officers and employees serving in executive branch of the federal government. 

On April 20, 2020, the Congressional Research Service (CRS), a nonpartisan shared staff to congressional committees and Members of Congress, posted a publication, The Hatch Act: A Primer, on the Internet at A Guide to the Hatch Act for Federal Employees - OSC.gov .

The Hatch Act, however, also applies to state officers and employees and officers and employees of political subdivisions of a state whose principal employment is in connection with an activity which is financed, in whole or in part, by the federal government. This prohibition, however, does not apply to individuals employed by educational or research institutions that a state supports and certain religious, philanthropic and cultural organizations. For example, the  members of a public school board of education and school officers and teachers employed by a public school are not within the ambit of the Act.

The New York State Bar Association posted an article by Sung Mo Kim, Esq. on the Internet addressing the applicability of the Hatch Act to New York State municipal officers and employees at https://nysba.org/app/uploads/2020/03/HatchActKimMunicipalFall06.pdf.

In addition, public employers in New York State may prohibit its officers and employees from campaigning for, and holding, elected office subject to its action satisfying the so-called Pickering Balancing Test. See https://publicpersonnellaw.blogspot.com/2018/09/public-employers-may-prohibit-its.html.

Removal of an individual's name from an eligible list or from his position by action of the State Department of Civil Service or by a municipal commission

§50.4 of the Civil Service Law provides for removing the name of an individual for appointment to a position in the competitive class from an eligible list or from the position if the individual was appointed from the eligible list. The New York State Department of Civil Service or a municipal civil service commission, as the case may be, on its own initiative or upon the request of an appointing authority, determine if an individual whose name appears on an eligible list, or who has been appointed from an eligible list, should be disqualified for appointment to the position.

For example, §50.4 provides that the State Department of Civil Service may refuse to examine an applicant, or after examination to certify an eligible for appointment to the position for a number of reasons, including, but not limited to:

1. The individual's lack any of the established requirements for admission to the examination or for appointment to the position; or

2. An individual who has been dismissed from a permanent appointment to position in the public service upon stated written charges of incompetency or misconduct; or

3. An individual who has intentionally made a false statement of any material fact in his application; or

4. An individual who has been dismissed from private employments because of habitually poor performance.

No person, however, may be disqualified pursuant to §50.4 unless he has been given a written statement of the reasons for such action and given an opportunity to offer an explanation and to submit facts in opposition to such disqualification.

Further, no person may be removed from his position based on findings made after an investigation of his qualifications and background more than three years after he has been appointed from the list because of finding of facts which if known prior to appointment, would have warranted his disqualification or upon a finding of "illegality, irregularity or fraud of a substantial nature" in his application, examination or appointment, except in the case of fraud.

For example, an employee removed from his position pursuant to §50.4 by the Personnel Officer and Director of Wayne County Civil Service Commission after a making a finding that the employee had “intentionally made false statements of material facts in his application or (had) attempted to practice (a) deception or fraud in his application” based on its finding that the employee had falsified his application with respect to his experience as a police officer and concealed facts related to his separation from a previous employment.

Although the employee sued, contending he could not be removed from his position without first being given an administrative due process hearing, the Appellate Division disagreed.*

The Appellate Division opined that "petitioner was accorded his full right to explain his conduct," and that he was not entitled to a hearing, citing Matter of Shraeder v Kern, 287 N.Y. 13. In the words of the Appellate Division, §50.4 “requires no more than that the person be given a written statement of the reasons therefore and afforded an opportunity to make explanation and to submit facts in opposition to such disqualification.”

* 78 A.D.2d 984, affirmed 55 NY2d 1019.

Trial practices and procedures of the New York City Office of Administrative Trials and Hearings during the COVID-19 pandemic

In United States v. Gigante, 166 F.3d 75, the United States Court of Appeals, Second Circuit, held that "even in the context of criminal proceedings, 'upon a finding of exceptional circumstances' a witness may be permitted to testify via two-way closed-circuit television when this furthers the interest of justice." The court then opined that the "COVID-19 pandemic presents such exceptional circumstances."

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judges Astrid B. Gloade and Faye Lewis, respectively, denied applications filed by Respondents to hold in-person trials rather than their conducting trials through videoconferencing. Both ALJs explained that OATH has long recognized that testimony may be taken by videoconferencing when there is a compelling need to do so.

Both ALJs found that the COVID-19 pandemic establishes compelling circumstances for holding remote trials and explained that OATH's current practices and procedures provide for conducting all trials remotely except when an ALJ determines, upon motion, that there is a particularized, compelling need for an in-person trial that can be conducted in compliance with applicable health and safety guidelines.

These rulings by the ALJs reflected the Order OATH's Chief Administrative Law Judge Joni Kletter* issued "due to the emergency circumstances caused by the continuing COVID-19 outbreak in the City of New York" wherein Chief ALJ Kletter stated, in pertinent part, that "All trials before the OATH Trials Division will be conducted by Cisco Webex (or a similar system approved by the OATH Trials Division) which is widely available at no additional cost" under the circumstances.

Finding that Respondents, respectively, failed to demonstrate "a particularized, compelling need for in-person trials" the ALJs opined that videoconferencing of the OATH proceeding would permit parties to submit evidence electronically and conduct direct and cross-examination of witnesses, whose demeanor would be readily observable on the video platform by the ALJ conducting the trial or the hearing. Accordingly, the ALJs denied the applications submitted by Respondents to them, respectively, to conduct their hearings in the form of in-person trials.

* See OATH Chief Judge’s Order addressing adjudications by OATH’s Trials Division during the COVID-19 outbreak.