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STATE AND LOCAL HATCH ACT
5 U.S.C. §§ 1501-08
  • THE ACT WAS ORIGINALLY ENACTED IN 1939.  INITIALLY IT ONLY APPLIED TO FEDERAL EMPLOYEES


  • IN 1940, THE HATCH ACT WAS AMENDED TO EXTEND COVERAGE TO STATE AND LOCAL EMPLOYEES
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STATE AND LOCAL HATCH ACT: COVERAGE
5 U.S.C. §§ 1501-08
  • THE ACT APPLIES TO INDIVIDUALS WHO ARE —


    • EMPLOYED BY A STATE OR LOCAL AGENCY


    • IN THE EXECUTIVE BRANCH OF GOVERNMENT


    • WHOSE PRINCIPAL EMPLOYMENT IS


    • IN CONNECTION WITH AN ACTIVITY FINANCED


    • IN WHOLE OR IN PART


    • BY A FEDERAL LOAN OR GRANT
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STATE AND LOCAL HATCH ACT: COVERAGE
5 U.S.C. §§ 1501
  • EMPLOYED BY A STATE OR LOCAL AGENCY


    • INCLUDES BOTH EMPLOYEES AND INDIVIDUALS HOLDING OFFICE


    • INCLUDES STATE, COUNTY, AND MUNICIPAL AGENCIES OR DEPARTMENTS THEREOF


    • INCLUDES A TERRITORY OR POSSESSION OF THE UNITED STATES
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STATE AND LOCAL HATCH ACT: COVERAGE
5 U.S.C. §§ 1501


  • IN THE EXECUTIVE BRANCH OF GOVERNMENT



    • INDIVIDUALS EMPLOYED OR HOLDING OFFICE
    • IN THE LEGISLATIVE BRANCH OR
    • THE JUDICIAL BRANCH ARE NOT COVERED
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STATE AND LOCAL HATCH ACT: COVERAGE
5 U.S.C. §§ 1501
  • MUST BE THE INDIVIDUAL’S  PRINCIPAL EMPLOYMENT



    • ONLY AN ISSUE WHEN THE INDIVIDUAL HAS
    • 2 OR MORE JOBS


    • KEY FACTORS TO CONSIDER:
      • (1)  AMOUNT OF HOURS WORKED
      • (2)  SALARY AMOUNT



    • WHERE IS THE INDIVIDUAL DURING NORMAL BUSINESS HOURS?
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STATE AND LOCAL HATCH ACT: COVERAGE
5 U.S.C. §§ 1501
  • PRINCIPAL EMPLOYMENT MUST BE IN CONNECTION WITH ACTIVITY FINANCED
  • BY FEDERAL LOAN OR GRANT
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STATE AND LOCAL HATCH ACT: COVERAGE
5 U.S.C. §§ 1501
  • INDIVIDUAL IS COVERED BY THE ACT IF
  • “AS A NORMAL AND FORSEEABLE INCIDENT TO PRINICIPAL POSITION OR JOB, THE INDIVIDUAL PERFORMS DUTIES IN CONNNECTION WITH AN ACTIVITY FINANCED IN WHOLE OR IN PART BY A FEDERAL LOAN OR GRANT.”


  • Special Counsel v. Williams, 56 MSPR 277, 283 (1993).
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STATE AND LOCAL HATCH ACT: COVERAGE
5 U.S.C. §§ 1501
  • PRACTICIONER’S TIP:


  • LOOK AT THE PROGRAMS THAT AN INDIVIDUAL WORKS ON AND ASK WHETHER THERE ARE ANY FEDERAL LOANS OR GRANTS FINANCING THOSE PROGRAMS.
  • CONSIDER ALL DUTIES OF THE INDIVIDUAL
  • REMEMBER TO CONSIDER HOW OPERATING COSTS, EQUIPMENT COSTS, AND ADMINISTRATIVE COSTS ARE PAID
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STATE AND LOCAL HATCH ACT: COVERAGE
5 U.S.C. §§ 1501
  • EXAMPLES OF COVERED EMPLOYEES:
  • Junior Administrative Assistant who helped clients find housing covered because expenditures of his unit  reimbursed by federal government.


  • Executive Secretary of Housing Authority covered when agency receives an operating subsidy and secretary reviews & signs requests for subsidy.  Hayes, 16 MSPB 166.
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STATE AND LOCAL HATCH ACT: COVERAGE
5 U.S.C. §§ 1501
  • EXAMPLES OF COVERED EMPLOYEES:


  • EMPLOYEE COVERED BECAUSE PART OF HIS TRAVEL EXPENSES – A MERE $350- CAME FROM A FEDERAL GRANT RECEIVED THROUGH THE STATE BOARD OF HEALTH.  IN RE LYLE, 2 PAR 413 (1951)
  • EMPLOYEE WHO HAD GENERAL SUPERVISION OF ALL ENGINEERING WORK FOR THE STATE DEPARTMENT OF HIGHWAY COVERED BY ACT BECAUSE ENGINEERING PROJECTS FINANCED IN PART BY FEDERAL GRANTS.  IN RE GRANT, 2 PAR 156 (1944).
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STATE AND LOCAL HATCH ACT: COVERAGE
5 U.S.C. §§ 1501
  •    SUPERVISORY EMPLOYEES & DIRECTORS
  • INDIVIDUAL WHO SUPERVISES EMPLOYEES WHO WORK ON FEDERALLY FUNDED PROGRAMS GENERALLY WILL BE HELD TO HAVE DUTIES IN CONNECTION WITH FEDERALLY FUNDED ACTIVITIES BECAUSE OF OVERSIGHT RESPONSIBILITIES.


  • Palmer v. United States Civil Service Commission, 297 F.2d 450 (7th Cir. 1962)(Director of Department of Conservation covered even though he claimed he spent less than one percent of his time on federally funded projects).
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STATE AND LOCAL HATCH ACT: COVERAGE
5 U.S.C. §§ 1501
  • FEDERAL LOAN OR GRANT INCLUDES:
  • GRANTS THAT PASS THROUGH THE STATE OR OTHER AGENCY
  • FEDERAL REIMBURSEMENTS
  • FEDERAL SUBSIDIES
  • MEDICAID – (Special Counsel v. Alexander, 71 MSPR 636)
  • BUT NOT
  • MEDICARE
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STATE AND LOCAL HATCH ACT: COVERAGE
5 U.S.C. §§ 1501
  • MYTHS ABOUT COVERAGE:


  • IT IS NOT NECESSARY THAT AN INDIVIDUAL’S SALARY BE PAID WITH FEDERAL FUNDS


  • THE INDIVIDUAL DOES NOT HAVE TO HAVE ADMINISTRATIVE OR EXECUTIVE DISCRETION OVER FEDERAL FUNDS OR DECIDE HOW THEY ARE SPENT


  • PROGRAM DOES NOT HAVE TO BE FUNDED AT LEAST 50% BY FEDERAL FUNDS – ANY AMOUNT CAN TRIGGER COVERAGE
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STATE AND LOCAL HATCH ACT: COVERAGE
5 U.S.C. §§ 1501
  • MYTHS ABOUT COVERAGE:


  • THE ACT CONTINUES TO APPLY TO INDIVIDUALS WHILE ON ANNUAL LEAVE, SICK LEAVE, LEAVE WITHOUT PAY, ADMINISTRATIVE LEAVE OR FURLOUGH


  • PART-TIME, TEMPORARY OR SEASONAL EMPLOYEES ARE COVERED BY THE ACT
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STATE AND LOCAL HATCH ACT: EXEMPTIONS
5 U.S.C. §§ 1501(4)(B)
  • EDUCATIONAL EXEMPTION


  • INDIVIDUAL IS NOT COVERED IF:


  • EMPLOYED BY EDUCATIONAL OR RESEACH INSTITUTION, ESTABLISHMENT, OR AGENCY THAT IS SUPPORT IN PART BY STATE OR LOCAL AGENCY


  • FOR EXAMPLE: TEACHERS, PROFESSORS
  • SCHOOL ADMINISTRATORS
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STATE AND LOCAL HATCH ACT: COVERAGE – PRIVATE, NONPROFIT  
5 U.S.C. §§ 1501
  • PRIVATE NONPROFIT CORPORATIONS
  • GENERAL RULE:  HATCH ACT DOES NOT APPLY TO EMPLOYEES OF PRIVATE, NONPROFIT CORPORATIONS.


  • EXCEPTION: SOME FEDERAL STATUTES CONTAIN A PROVISION THAT RECEIPIENT ORGANIZATIONS WILL BE TREATED AS “STATE OR LOCAL” AGENCIES FOR PURPOSES OF HATCH ACT.
    • - HEAD START (42 U.S.C. 9851)
    • - COMMUNITY SERVICE BLOCK GRANT (42 U.S.C. 9918)
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HATCH ACT DO’s
5 U.S.C. § 1502
  • HATCH ACT COVERED EMPLOYEES MAY –


    • ATTEND AND BE ACTIVE AT POLITICAL RALLIES AND MEETINGS


    • JOIN AND BE ACTIVE MEMBER OF A POLITICAL PARTY OR CLUB, INCLUDING HOLDING OFFICE


    • SIGN NOMINATING PETITIONS


    • CAMPAIGN FOR OR AGAINST REFERENDUM QUESTIONS, CONSTITUTIONAL AMENDMENTS, MUNICIPAL ORDINANCES
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HATCH ACT DO’s
5 U.S.C. § 1502
  • HATCH ACT COVERED EMPLOYEES MAY –


    • CAMPAIGN FOR OR AGAINST CANDIDATES IN  PARTISAN ELECTIONS


    • MAKE CAMPAIGN SPEECHES FOR CANDIDATES IN PARTISAN ELECTIONS


    • DISTRIBUTE CAMPAIGN LITERATURE IN PARTISAN ELECTIONS


    • BE CANDIDATE FOR PUBLIC OFFICE IN NONPARTISAN ELECTION
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HATCH ACT DON’Ts
5 U.S.C. § 1502; 5 C.F.R. Part 151
  • COVERED EMPLOYEES MAY NOT —


    • USE OFFICIAL AUTHORITY OR INFLUENCE TO INTERFERE WITH AN ELECTION


    • DIRECTLY OR INDIRECTLY COERCE, ATTEMPT TO COERCE, COMMAND, OR ADVISE A STATE OR LOCAL OFFICER OR EMPLOYEE TO PAY, LEND, OR CONTRIBUTE ANYTHING OF VALUE TO A PARTY, COMMITTEE, AGENCY OR PERSON FOR POLITICAL PURPOSES


    • BE CANDIDATES FOR PUBLIC OFFICE IN PARTISAN ELECTIONS
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HATCH ACT DON’Ts
5 U.S.C. § 1502(a)(1); 5 C.F.R. PART 151
  • COVERED EMPLOYEES MAY NOT —


    • USE OFFICIAL AUTHORITY OR INFLUENCE TO INTERFERE WITH AN ELECTION


      • Use of official title (generic title or “The Honorable”)
      • Coercion of subordinates
      • Solicit the uncompensated volunteer services of subordinates
      • E-mail solicitation
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HATCH ACT DON’Ts
5 U.S.C. § 1502(a)(2); 5 C.F.R. PART 151
  • COVERED EMPLOYEES MAY NOT —


    • DIRECTLY OR INDIRECTLY COERCE, ATTEMPT TO COERCE, COMMAND, OR ADVISE A STATE OR LOCAL OFFICER OR EMPLOYEE TO PAY, LEND, OR CONTRIBUTE ANYTHING OF VALUE TO A PARTY, COMMITTEE, ORGANIZATION, AGENCY OR PERSON FOR POLITICAL PURPOSE.
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HATCH ACT DON’Ts
5 U.S.C. § 1502(a)(3); 5 C.F.R. PART 151
  • COVERED EMPLOYEES MAY NOT —


  • BE CANDIDATES FOR PUBLIC OFFICE IN PARTISAN ELECTIONS


    • Election is partisan if ANY candidate is nominated or elected as representing a political party, for example, the Democratic or Republican Party.


      • Write-in candidacy (must be spontaneous)


      • Party office is permissible (Precinct Committee person)
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HATCH ACT DON’Ts
5 U.S.C. § 1502(a)(3); 5 C.F.R. PART 151

  • CROSS FILING FOR OFFICE


  • ELECTION IS PARTISAN EVEN IF CANDIDATES ARE PERMITTED TO CROSS FILE FOR THE OFFICE.



  • SPECIAL COUNSEL V. YOHO, 15 MSPR 409 (1983)
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HATCH ACT DON’Ts
5 U.S.C. § 1502(b; 5 C.F.R. PART 151
  • EXEMPTION FOR CERTAIN ELECTED OFFICIALS


  • THE PROHIBITION AGAINST BEING A CANDIDATE DOES NOT
  • APPLY TO:


    • The Governor or Lieutenant Governor of a State;
    • The mayor of a city;
    • A duly elected head of an executive department who is not classified under a merit or civil service system; or
    • An individual holding elective office.


    • INDIVIDUAL MUST QUALIFY FOR EXEMPTION BASED ON THEIR PRINCIPAL EMPLOYMENT.


    • THESE INDIVIDUALS STILL SUBJECT TO OTHER PROHIBITIONS.
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CANDIDACY
5 U.S.C. § 1502
    • WHEN DOES IT BEGIN?
    • WHEN AN INDIVIDUAL BEGINS TO COLLECT SIGNATURES FOR NOMINATING PETITIONS


    • WHEN AN INDIVIDUAL BEGINS TO FUNDRAISE


    • WHEN AN INDIVIDUAL MAKES AN ANNOUNCEMENT TO THE PRESS


    • WHEN AN INDIVIDUAL FILES NOMINATING PETITIONS


    • WHEN AN INDIVIDUAL PUTS A CAMPAIGN COMMITTEE TOGETHER
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BEWARE OF NONPARTISAN ELECTIONS/CANDIDACIES
5 U.S.C. § 1502
    • NONPARTISAN CAN TRANSFORM TO PARTISAN ELECTION WHEN:
    • Standard: There is evidence showing that partisan politics actually entered the campaign of a candidate.


        • Employee/candidate seeks and receives endorsement of political party.

        • Employee/candidate advertises endorsement of political party.

        • Employee/candidate uses political party resources.


        • Employee/candidate announces he is political party candidate.
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THE OFFICE OF SPECIAL COUNSEL’S ROLE& THE STATE AND LOCAL
HATCH ACT
5 U.S.C. § 1504
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PENALTIES FOR VIOLATION
(STATE AND LOCAL HATCH ACT)
5 U.S.C. § 1505
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PENALTIES FOR VIOLATION
(STATE AND LOCAL HATCH ACT)
5 U.S.C. § 1506
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PENALTIES FOR VIOLATION
(STATE AND LOCAL HATCH ACT)
5 U.S.C. § 1506
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HATCH ACT INFORMATION / ADVICE
 5 U.S.C. § 1212 (f)
      • EMPLOYEES MAY:


        • OBTAIN ANSWERS TO SPECIFIC QUESTIONS ABOUT POLITICAL ACTIVITY BY CALLING OSC, AT ―
          • 800-85-HATCH OR 202-254-3650

        • OBTAIN WRITTEN ADVISORY OPINIONS ABOUT THE HATCH ACT BY CONTACTING OSC ―

          BY MAIL, AT: U.S. OFFICE OF SPECIAL COUNSEL
          1730 M STREET, NW (SUITE 218)
          WASHINGTON, DC 20036-4505
          ATTN: HATCH ACT UNIT

          BY FAX, AT: (202) 653-5151
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OSC WEB SITE
(http://www.osc.gov)
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FEDERAL HATCH ACT:
OSC PUBLICATIONS AND POSTERS