Re: OSC File No. AD-02-XXXX
Dear Mr. __________ :
This letter is in response
to your request for an advisory opinion concerning the Hatch Act.
Specifically, you ask for clarification concerning 5 U.S.C. §
1502(c)(2)’s exemption that allows an individual who is principally
employed as mayor to run for public office in a partisan election.
As you know, the Hatch Act
(5 U.S.C. §§ 1501-1508) restricts the political activity of individuals
principally employed by state, county, or municipal executive agencies in
connection with programs financed in whole or in part by loans or grants
made by the United States or a federal agency. See
5 U.S.C. § 1502(4). Employees
who are covered by the Act are prohibited from being candidates for public
office in partisan elections, i.e., an election in which any candidate
represents, for example, the Republican or Democratic Party.
5 U.S.C. § 1502(a)(3).
However, pursuant to Section
1502(c), Governors, Lieutenant Governors, mayors, elected heads of
executive departments, and individuals holding elective office are exempt
from the prohibition against being a candidate for public office.
The legislative purpose of this section was to exempt a small but
important number of elected state officers and employees whose official
duties in their elective positions involve the administration of federally
assisted projects. Northern
Id. at 1351-52 (“It was far from the purpose
of the exemptive provision to tolerate political activity by an employee
of an agency administering federal funds merely because he happens to have
been elected to an entirely unrelated office.”); In re Higginbotham,
2 P.A.R. 654, 657 (1963)(an officer or employee whose principal employment
brings him within the Act must qualify for the exemption on the basis of
that employment), aff’d, 221 F.Supp. 839 (W.D. PA 1963), aff’d
340 F.2d 165 (3rd
Therefore, in order to qualify for Section 1502(c)(2)’s
exemption, an individual must be principally employed as mayor.
For example, the exemption would not apply to an individual who is
employed full-time by the ______________ but
serves as mayor in a part-time capacity.
Any questions concerning principal employment may be referred to
Please contact me at (800) 854-2824 if you have any further questions.
Generally, principal employment is that
employment to which an individual devotes the most time and from which
he derives the most income. See
e.g., Anderson v. U.S. Civil Service Commission, 119
F.Supp. 567, 576-77 (D.Mont. 1954); Smyth v.