Bury the Hatch

Is it time to re-examine an arcane federal law otherwise known as the Hatch Act?

I think it is.

If nothing else, it clearly is past time to really examine the well-intentioned – but misguided – application and enforcement of the 1939 federal law.

For the record, the Hatch Act (initially) was put in place to limit certain political activities of most executive branch employees.

According to the U.S. Office of Government Ethics, the law prohibits employees from engaging in political activity while on duty or in the federal workplace.

Nothing wrong with that.

It also prohibits public employees from soliciting or receiving political contributions.

Again, nothing wrong with that.

But there ought to be realistic limitations to the enforcement of the Hatch Act. Barring that, the enforcement ought to be 100 percent, across the board.

If a public official violates the intent of the act, reprimand that public official. But don't consider everyone guilty by accusation.

Jason C. Miller, who holds a law degree from the University of Michigan J.D. and was a law clerk to the Hon. Deborah Cook of the United States Court of Appeals for the Sixth Circuit, has an interesting opinion of the Hatch Act on the Southern Illinois University School of Law website. (See: www.law.siu.edu/journal/34winter/4%20-%20Miller.pdf.)

Miller's opinion is entitled: "The Unwise and Unconstitutional Hatch Act: Why state and local government employees should be free to run for public office."

Miller (accurately) observes: "It happens prior to every election. An employee of a local or state government agency decides to run for political office on the employee’s own time – only to find out that he will lose his job if he actually files to run for office.

"What would have been an election fight turns into an employment dispute. Some choose to withdraw their candidacy, some choose to continue their race at the expense of their day job, while some are given no choice at all. The covered employees are put in this position because of a federal law called the Hatch Act."

The act’s coverage of state and local government employees often comes as a surprise to those involved because the statute does not provide clear notice regarding who and what is actually covered, Miller said.

"The Hatch Act is a patchwork of regulation and has intricate applications that are difficult to understand," Miller said. "The military is regulated under different provisions. A separate part of the Hatch Act covers both state and local government employees. … Certain private nonprofits, specifically the Community Action agencies, are also brought under the Hatch Act as a condition of their federal grants."

But here's a kicker: Miller adds that according to the statutory text, the candidacy restrictions do not apply to incumbent elected officials or, more specifically, those whose connection with federal dollars comes only through being an elected official.

So, let's consider a local scenario. Three months ago, it was argumentatively true that neither Richard Warner nor Donnie Barrera could remain in the employment of Highland County Sheriff Ron Ward, had Ward intended to run again for re-election and had either Warner or Barrera wanted to run against him.

(Maybe I'm wrong on this, but several years ago I believe another Highland County deputy who wanted to run for sheriff encountered a similar dilemma. And, granted, perhaps the dilemma has more to do with civil service rules than any other laws.)

Moving forward, based on the decision of the local Republican Party leadership, Warner was appointed as sheriff. Barrera was not. The end result being that the latter had no other option but to resign from office despite a distinguished career in law enforcement of more than 20 years.

That's wrong.

Why punish a public official for something he or she hasn't done?

The Hatch Act, Miller said, “was passed in response to controversies over coercion of political donations from federal employees and the misuse of federal funds in the 1936 and 1938 campaigns. Congress expanded the Hatch Act to cover certain state and local employees the next year because it wanted to prevent federal money from funding coercive activities at any level."

Well, how about that?

Federal money, like a strong rain, seems to find its own path, mostly downhill.

I recall a conversation with a state lawmaker who risked breaking his own arm by patting himself on the back for channeling federal dollars through Columbus to Highland County.

Does that put the Highland County Board of Commissioners in violation of the Hatch Act for accepting federal dollars that were funneled through the Statehouse?

I don't know.

The Ohio Revised Code Chapter 311:01 outlines the qualifications for county sheriffs and deputies. The state code makes more sense than the Hatch Act.

Let's bury the Hatch.

Rory Ryan is publisher of The Highland County Press.