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75–112 PDF 2012

HATCH ACT: OPTIONS FOR REFORM 

HEARING 

BEFORE THE

SUBCOMMITTEE ON FEDERAL WORKFORCE, 

U.S. POSTAL SERVICE AND LABOR POLICY 

OF THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

MAY 16, 2012 

Serial No. 112–155 

Printed for the use of the Committee on Oversight and Government Reform 

( 

Available via the World Wide Web: http://www.fdsys.gov 

http://www.house.gov/reform 

(II) 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

DARRELL E. ISSA, California, Chairman 

DAN BURTON, Indiana 

JOHN L. MICA, Florida 

TODD RUSSELL PLATTS, Pennsylvania 

MICHAEL R. TURNER, Ohio 

PATRICK T. MCHENRY, North Carolina 

JIM JORDAN, Ohio 

JASON CHAFFETZ, Utah 

CONNIE MACK, Florida 

TIM WALBERG, Michigan 

JAMES LANKFORD, Oklahoma 

JUSTIN AMASH, Michigan 

ANN MARIE BUERKLE, New York 

PAUL A. GOSAR, Arizona 

RAU ́ L R. LABRADOR, Idaho 

PATRICK MEEHAN, Pennsylvania 

SCOTT DESJARLAIS, Tennessee 

JOE WALSH, Illinois 

TREY GOWDY, South Carolina 

DENNIS A. ROSS, Florida 

FRANK C. GUINTA, New Hampshire 

BLAKE FARENTHOLD, Texas 

MIKE KELLY, Pennsylvania 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

EDOLPHUS TOWNS, New York 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

DENNIS J. KUCINICH, Ohio 

JOHN F. TIERNEY, Massachusetts 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

MIKE QUIGLEY, Illinois 

DANNY K. DAVIS, Illinois 

BRUCE L. BRALEY, Iowa 

PETER WELCH, Vermont 

JOHN A. YARMUTH, Kentucky 

CHRISTOPHER S. MURPHY, Connecticut 

JACKIE SPEIER, California 

LAWRENCE J. BRADY, Staff Director 

JOHN D. CUADERES, Deputy Staff Director 

ROBERT BORDEN, General Counsel 

LINDA A. GOOD, Chief Clerk 

DAVID RAPALLO, Minority Staff Director 

SUBCOMMITTEE ON FEDERAL WORKFORCE, U.S. POSTAL SERVICE AND LABOR

POLICY

DENNIS A. ROSS, Florida, Chairman 

JUSTIN AMASH, Michigan, Vice Chairman 

JIM JORDAN, Ohio 

JASON CHAFFETZ, Utah 

CONNIE MACK, Florida 

TIM WALBERG, Michigan 

TREY GOWDY, South Carolina 

STEPHEN F. LYNCH, Massachusetts, 

Ranking Minority Member 

ELEANOR HOLMES NORTON, District of 

Columbia 

GERALD E. CONNOLLY, Virginia 

DANNY K. DAVIS, Illinois 

(III) 

C O N T E N T S 

Page 

Hearing held on May 16, 2012 ............................................................................... 1 

WITNESSES 

The Honorable Carolyn N. Lerner, Special Counsel, U.S. Office of Special 

Counsel 

Oral Statement ................................................................................................. 6 

Written Statement ............................................................................................ 9 

The Honorable Irvin B. Nathan, Attorney General, District of Columbia 

Oral Statement ................................................................................................. 16 

Written Statement ............................................................................................ 18 

The Honorable Jon J. Greiner, Former Utah State Senator 

Oral Statement ................................................................................................. 25 

Written Statement ............................................................................................ 27 

Mr. Scott A. Coffina, Partner, Drinker Biddle & Reath LLP 

Oral Statement ................................................................................................. 30 

Written Statement ............................................................................................ 33 

Mr. Jon Adler, National President, Federal Law Enforcement Officers Association 

Oral Statement ................................................................................................. 41 

Written Statement ............................................................................................ 42 

APPENDIX 

The Honorable Dennis Ross, a Member of Congress from the State of Florida, 

written statement ................................................................................................. 57 

Testimony for the record submitted by The Federal Managers Association ...... 58 

The National Law Journal: Amending the Hatch Act by Scott A. Coffina ......... 60 

Letter from The National Sheriffs’ Office .............................................................. 63 

(1) 

HATCH ACT: OPTIONS FOR REFORM 

Wednesday, May 16, 2012, 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, 

SUBCOMMITTEE ON FEDERAL WORKFORCE, U.S. POSTAL

SERVICE AND LABOR POLICY, 

Washington, D.C. 

The subcommittee met, pursuant to notice, at 9:30 a.m. in room 

2247, Rayburn House Office Building, the Honorable Dennis Ross 

[chairman of the subcommittee], presiding. 

Present: Representatives Ross, Chaffetz, Cummings, Norton, 

Lynch, Connolly, Gowdy and Davis. 

Staff Present: Ali Ahmad, Majority Communications Advisor; 

Adam P. Fromm, Majority Director of Member Services and Committee Operations; Jennifer Hemingway; Majority Senior Professional Staff Member; Ashok M. Pinto; Majority Deputy Chief Counsel, Investigations; James Robertson, Majority Professional Staff 

Member; Cheyenne Steel, Majority Press Assistant; Peter Warren, 

Majority Legislative Policy Director; John A. Zadrozny, Majority 

Counsel; Krista Boyd, Minority Deputy Director of Legislation/ 

Counsel; Ashley Etienne, Minority Director of Communications; Susanne Sachsman Grooms, Minority Chief Counsel; Devon Hill, Minority Staff Assistant; William Miles, Minority Professional Staff 

Member; Dave Rapallo, Minority Staff Director; and Safiya Simmons, Minority Press Secretary. 

Mr. ROSS. Good morning. 

I will now call the Subcommittee on Federal Workforce, U.S. 

Postal Service and Labor Policy to order. 

Today’s hearing is on the ‘‘Hatch Act: Options for Reform.’’ 

As we do in all our Oversight subcommittee and full committee 

hearings, I will state the Oversight Committee Mission Statement. 

We exist to secure two fundamental principles. First, Americans 

have the right to know that the money Washington takes from 

them is well spent. Second, Americans deserve an efficient and effective government that works for them. 

Our duty on the Oversight and Government Reform Committee 

is to protect these rights. Our solemn responsibility is to hold government accountable to taxpayers because taxpayers have a right 

to know what they are getting from the government. 

We will work tirelessly in partnership with citizen watchdogs to 

deliver the facts to the American people and bring genuine reform 

to the Federal bureaucracy. This is the mission of the Oversight 

and Government Reform Committee. 

I will now recognize myself for an opening statement. 

2 

During my brief tenure as a member of Congress, I have seen 

how well intentioned legislation can have unintended consequences 

when applied to the real world. This is certainly true with respect 

to the Hatch Act. Originally enacted in 1939, the Hatch Act was 

needed to prevent an all too prevalent practice of Federal employees engaging in partisan, political activity using Federal resources. 

The Hatch Act was last amended in 1993, a year in which employees were becoming accustomed to email for workplace communication and using other forms of electronic communication to 

share information with their colleagues. Technology’s advance is 

only speeding up and the Hatch Act is in need of update. 

Today’s hearing builds on the committee’s June 2011 hearing at 

which a bipartisan panel expressed support for making major 

changes in the Hatch Act statute. Furthermore, several bills have 

been introduced to repeal the Hatch Act’s overreaching and arbitrary restrictions on State and local government workers who seek 

to run for office. 

In short, there is a growing consensus that we should enact comprehensive Hatch Act reform. The Federal Government should not 

be in the business of making personnel policy for State and local 

government employees and the Office of Special Counsel should not 

be dedicating as much of its resources as it now does in pursuing 

complaints concerning State and local elections. 

Rather, the Office of Special Counsel should be focused on cracking down on Federal workers who abuse the public trust and on 

protecting those Federal workers who are unfairly targeted by their 

managers for blowing the whistle on waste, fraud and abuse. Instead, we should craft legislation that preserves the intent of the 

Hatch Act and reflects the realities of today’s workplace. Comprehensive reform should, for example, adopt a definition of Federal workplace that accounts for how Federal employees communicate today, which is oftentimes out of the office, on the go, with 

personal electronic devices. 

I think we can all agree that our Nation’s public servants should 

be prohibited from engaging in partisan, political activity. The 

Hatch Act has been largely successful at curbing overtly partisan 

politicking within the civil service. However, a fresh look is needed 

to address certain unforeseen challenges and unintended consequences. We will hear about some of those consequences today. 

I hope we are able to enact changes that prevent them from occurring in the future. 

I would like to thank Mr. Cummings for his work on this important issue and I look forward to working with him, Chairman Issa 

and the Ranking Subcommittee member, Mr. Lynch, on moving 

Hatch reform legislation through the House of Representatives this 

Congress. 

I thank the witnesses for appearing today and I look forward to 

your testimony. 

I will now recognize the Ranking Member of the full committee, 

the gentleman from Maryland, Mr. Cummings, for an opening 

statement. 

Mr. CUMMINGS. Thank you, Mr. Chairman, for holding this hearing today. 

3 

In March, I introduced H.R. 4152, the Hatch Act Modernization 

Act of 2012 which is co-sponsored by every Democratic member of 

the Subcommittee. This bill provides immediate, common sense 

and non-controversial fixes to the Hatch Act. Specifically, it implements recommendations for immediate reform proposed by Special 

Counsel Carolyn Lerner. 

First, the bill eliminates the restriction that prevents state and 

local government employees from running for political office. Currently, if a State or local government employee works on a program 

that receives any amount of Federal funding, the Hatch Act prohibits that employee from running for office. 

This restriction has led to a number of simply unjust results for 

public servants. For example, today we will hear from John 

Greiner, former Police Chief of the City of Ogden, Utah, who was 

removed from his position because he ran for State Senate. In another example, a Philadelphia transit cop was barred from running 

for his local school board because he works with an explosives detection dog paid for by a grant from The Department of Homeland 

Security. These results make no sense. Even worse, the Office of 

Special Counsel reports that 45 percent of its caseload now involves 

enforcing this restriction, diverting valuable resources from more 

critical issues. 

The Hatch Act Modernization Act also implements a second recommendation made by the Special Counsel. It expands the range 

of penalties for Hatch Act violations. Right now, an employee who 

commits a Hatch Act violation, no matter how minor, must be fired 

unless the Merit Systems Protection Board unanimously votes to 

impose a lesser penalty. This bill makes it easier for the punishment to more appropriately fit the violation. 

Finally, the bill includes a third provision to treat employees 

working for the District of Columbia as State and local government 

employees rather than as Federal employees. This provision is 

based on legislation championed by Congresswoman Eleanor 

Holmes-Norton that passed the House by a voice vote in the 111th 

Congress. 

We will hear today from the Attorney General of the District of 

Columbia that without this change, he will not be able to run for 

another term in 2014. That just does not make sense. 

Mr. Chairman, this bill is simple, straightforward and non-controversial. Last June at our first hearing on the Hatch Act, Chairman Issa, to his credit, said the committee would consider Hatch 

Act legislation before the election. He said, ‘‘The Oversight Committee is intending to author such legislation as may be necessary 

and will affect the next President. Necessarily, we will, in fact, 

work on a bipartisan basis to find any and all changes necessary 

to take effect upon the inauguration of the next President. Although this is 18 months, and it seems like a long time, in political 

time, it is a very short period.’’ 

The Chairman was right. That was nearly a year ago and time 

is running out. Although I support additional efforts to improve the 

Hatch Act, H.R. 4152 includes commonsense fixes that the Special 

Counsel needs now before the election. These provisions have widespread support and we can pass them immediately. 

4 

Mr. Chairman, I am hoping that we can work together to schedule a markup for May 31 when we return from the Memorial Day 

recess. There are many public servants, police officers, social workers, paramedics, who want to serve their country by holding public 

office. We should not make them wait any longer. 

With that, I yield back. 

Mr. ROSS. Thank you, Mr. Cummings. 

I now recognize the gentleman from Massachusetts, the Ranking 

Member of the Subcommittee, Mr. Lynch, for an opening. 

Mr. LYNCH. Thank you, Mr. Chairman. 

I would also like to welcome our witnesses this morning and 

thank each of them for being here to help the Subcommittee with 

its work. 

As the Ranking Member has pointed out, it has been nearly two 

decades since the Hatch Act was last amended. Throughout this 

time, we have witnessed significant legislative, workplace and technological developments that collectively have demonstrated a need 

for us to modernize this essential and landmark law. 

Accordingly, I welcome this opportunity to examine how we can 

best bring the Hatch Act up to date to reflect our contemporary 

Federal workplace in a responsible and bipartisan manner that 

also safeguards the integrity and purpose behind the Act. 

The original Hatch Act of 1939, and its subsequent amendments 

in 1993, together were intended to curtail on-the-job politics in the 

Federal workplace. The law itself attempts to walk a fine line between affording maximum respect to the constitutionally-protected 

freedoms of speech and expression and the compelling need to 

eliminate political coercion and partisan influence throughout the 

Federal civilian workforce. 

In other words, the Hatch Act helps to ensure that those government employees tasked with carrying out policies and programming do exactly that while putting aside their individual political 

views. 

As many of you have heard me state on several occasions, I truly 

believe that the Federal Government has one of the most dedicated 

and talented employee workforces anywhere in the world. The majority of our workers enter public service with an innate interest 

in doing right by their fellow citizens and making a positive difference on behalf of their country. 

Nevertheless, there will always be a few bad actors who unfortunately use their official position to influence or advance a particular political agenda, party or partisan candidate. In those few 

cases, we, fortunately, have the provisions of the Hatch Act to rely 

upon as well as the Office of Special Counsel and the Merit Systems Protection Board, to carry out the duties of enforcement and 

punishment respectively. 

As we prepare ourselves for another major presidential election 

and campaign cycle, which in many ways is already well underway, 

I appreciate Special Counsel Carolyn Lerner’s renewed focus on 

ways to enhance and modernize the Hatch Act. With the advent of 

smart phones, blogging and other social mediums and technologies, 

the Federal workplace is clearly no longer our parents’ workplace. 

To that end, it is commonsense that we would now be reexamining the possibility of modernizing provisions of the Hatch Act. In 

5 

addition to updating the Hatch Act, the Office of Special Counsel 

has also put forth some reasonable suggestions for modifying the 

Hatch Act’s reach into political activities of government employees 

on a State and local level. 

I have heard of dozens of instances cited by Ranking Member 

Cummings and others involving state, county or municipal workers 

who are either prevented from pursuing elected office or in some 

cases, even fired because he or she ran for public office while employed in a capacity was in some way or another connected to Federal dollars. 

Mr. Chairman, these reports are concerning and reflective of the 

need to promptly reexamine the Hatch Act in order to reduce the 

possibility of such unintended consequences. That said, I urge our 

Subcommittee to move swiftly to consider H.R. 4152, the Hatch Act 

Modernization Act of 2012, introduced by my colleague and friend, 

Mr. Cummings of Maryland. It is sponsored by every single Subcommittee member on this side of the aisle. 

The bill will address a lot of the concerns being discussed here 

this morning. If there are additional Hatch Act related changes 

that the majority would like to see tackled, then at a minimum, 

H.R. 4152 should serve as the vehicle for accomplishing those 

changes. 

Again, I thank each of our witnesses for being here with us today 

and I yield back the balance of our time. 

Mr. ROSS. Thank you, Mr. Lynch. 

I will now introduce our distinguished panel. We have with us 

the Honorable Carolyn N. Lerner, who is the Special Counsel, U.S. 

Office of Special Counsel; Ms. Anna Galindo-Marrone, Chief, Hatch 

Act Unit, U.S. Office of Special Counsel, here not to testify but for 

technical reference only I understand; and the Honorable Irvin Nathan, Attorney General, District of Columbia. 

I would like to defer to my colleague from Utah, Mr. Chaffetz, 

to introduce our next guest. 

Mr. CHAFFETZ. Thank you, Mr. Chairman. 

I wanted to take just a moment and thank one of our own from 

Utah, Mr. Greiner, for being here. 

He began his law enforcement career in Ogden in 1973 and later 

rose through the ranks and became the Ogden City Police Chief. 

In fact, in 2005, Mr. Chairman, he was named the Utah Chief of 

the Year, quite a distinction for somebody who served law enforcement so nobly for so long. 

He was elected to serve a four year term in the Utah State Senate in 2006 but Mr. Greiner was fired by Ogden City on December 

28, 2011 after a Federal panel ruled he violated the Hatch Act. Mr. 

Greiner’s violation came when he signed a quarterly report for a 

Federal grant to upgrade the police dispatch system, money that 

went to the country not to the actual department. The city officials 

said the termination was necessary in order for Ogden to continue 

receiving future Federal funds and loans from the Federal Systems 

Merit Protection Board. Mr. Greiner was not only fired but was 

also banned by the Federal Government from serving as a law enforcement officer in Utah for 18 months starting in January 2012. 

This is outrageous and something that needs to be rectified. I appreciate the bipartisan support, in particular the members on the 

6 

dais today. We appreciate the service of Mr. Greiner and appreciate 

your being here and sorry sir that you have had to go through this. 

Hopefully you can help us as we try to figure out the solution because I certainly don’t think you were a part of the problem. 

Thank you, Mr. Chairman, and I yield back. 

Mr. ROSS. Thank you, Mr. Chaffetz. 

Our next witness is Mr. Scott A. Coffina, a Partner at Drinker 

Biddle & Reath. Our last witness is Mr. Jon Adler, National President, Federal Law Enforcement Officers Association. 

Pursuant to Committee rules, all witnesses will be sworn before 

they testify. Please rise and raise your right hand. 

Do you solemnly swear or affirm that the testimony you are 

about to give will be the truth, the whole truth, and nothing but 

the truth? 

[Witnesses respond in the affirmative.] 

Mr. ROSS. May the record reflect that all witnesses answered in 

the affirmative. You may be seated. 

In order to allow time for discussion, I would like you to limit 

your testimony to five minutes. Your entire written statement will 

be made a part of the record. 

Now I will recognize Ms. Lerner for an opening statement. 

WITNESS STATEMENTS 

STATEMENT OF CAROLYN N. LERNER 

Ms. LERNER. Thank you, Chairman Ross, Ranking Member 

Lynch, and members of the Subcommittee 

Thank you for the opportunity to testify today about the U.S. Office of Special Counsel’s administration of the Hatch Act. With me 

today is Ana Galindo-Marrone, the Chief of OSC’s Hatch Act Unit. 

After being sworn in as Special Counsel last June, I reviewed 

OSC’s Hatch Act program and quickly discovered the overreach of 

this otherwise very important law. At its best, the Hatch Act keeps 

partisan politics out of the workplace and prevents those in political power from abusing their authority. At its worse, the Act interferes with the rights of well qualified citizens to serve their local 

communities by running for State and local office. 

This concern, along with others, prompted me to send Congress 

a legislative proposal to amend the Hatch Act. I applaud the bipartisan group of lawmakers in both the House and the Senate who 

introduced this legislation in March. 

The primary reform in these bills is removing the Hatch Act’s 

prohibition on State and local employees running for partisan elected office. Removing this restriction will promote good government 

and demonstrate respect for the independence of States and localities. It will also let OSC use other limited resources toward more 

effective enforcement of the Act. 

Currently, State and local employees are ineligible to run for office if their jobs are in any way tied to a source of Federal funds. 

Both case law and substantial increase in Federal grant programs 

have greatly expanded the law’s coverage. Hundreds of thousands 

of public servants, including first responders, health care workers 

and police officers, are now covered by this prohibition. This expanVerDate Aug 31 2005 15:36 Jul 26, 2012 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 C:\DOCS\75112.TXT APRIL
7 

sive application of the law leads to absurd results. Here are some 

examples. 

As Representative Cummings noted earlier, OSC recently had to 

tell Matthew Arlen, a police officer in a canine unit, that he 

couldn’t run for the school board because his partner, a black Labrador, is funded through Federal grants. Mr. Arlen rightly questioned how much influence can my dog have over what I could do 

on the school board. 

We told a paramedic he couldn’t run for county coroner because 

some of the patients that he transports received Medicaid and we 

routinely advise deputy sheriffs that they can’t run for sheriff. 

Thus, the most qualified candidates are often disqualified from 

running for office. This is especially a problem in smaller communities where the pool of potential candidates is very limited. 

Not only is the reach of the Hatch Act too broad, its enforcement 

often is inconsistent with unfair results for several reasons. First, 

OSC can only investigate those cases where we receive the complaint, so using the Hatch Act as a weapon, candidates frequently 

file complaints against their opponents. An allegation that an individual is in violation of Federal law, even in the absence of any 

wrongdoing, can cast a cloud over a candidacy. Our enforcement efforts actually increase the level of partisanship in politically 

charged contests. 

Second, OSC has no jurisdiction in non-partisan elections. This 

exemption creates confusion and inconsistent results between 

neighboring localities. For example, a school board election may be 

partisan in one county but non-partisan the next county over. 

One final example, the law does not apply to elected officials and 

once someone has already been elected to office, they are free to 

run again in any partisan election. This again, leads to absurd results—like a deputy sheriff who cannot run against a sitting sheriff 

but that sheriff could run again not only for that office, but any 

other elected office for which he may choose. 

These arbitrary results reinforce the need to let States and localities decide how best to restrict the political activity of their employees. In fact, each State already has their own ethics rules or 

mini-Hatch Acts covering this issue. 

Despite my concerns about the unfair application of the Act, 

nearly half of OSC’s Hatch Act caseload is made up of State and 

local cases. Over the past two years, we have conducted more than 

500 investigations and issued thousands of advisory opinions. In 

these cases, we must conduct very fact specific, time consuming investigations to determine coverage and the State or local agency 

has to spend their resources answering our document requests and 

interview requests. 

It is important to note that if the candidacy provision is removed, 

a State or local employee still could not engage in coercive conduct 

or misuse their authority for political gain. Without the candidacy 

provision OSC could target its resources on these types of cases in 

which actual misconduct is at issue. We could also do more outreach and education to help employees understand their obligations 

under the Act and prevent problems from happening in the first 

place. 

8 

A second important reform is modifying the penalty for Federal 

employees. As the law now stands, termination is the only penalty 

unless the MSPB Merit Systems Protection Board unanimously 

votes to mitigate the penalty. Even in these cases, the MSPB cannot impose a penalty of less than 30 days suspension. 

This structure is overly restrictive and can lead to unjust results. 

It can even deter agencies from referring potential violations to my 

agency because they don’t want to lose an otherwise good employee. 

The pending legislation allows for the same range of penalties 

which now apply to other disciplinary actions and passing this reform will aid OSC’s enforcement efforts. 

Finally, we have noted several other potential areas for legislative reform of the Hatch Act. These are described at greater length 

in my written testimony and given my time constraints, I am going 

to rely on that submission. I also know that other panel members 

will be addressing several of them. 

Very briefly they include the following five issues: one, codify a 

definition of political activity; two, clarify the definition of the term 

‘‘Federal workplace’’; three, clarify the scope of the exemption for 

high level administration or White House employees; four, modify 

the Hatch Act’s application to District of Columbia employees; and 

five, consider a statute of limitations. 

I just want to note that these other areas are no where near as 

critical, in my mind, as the need to modify the State and local candidacy provision. I really want to stress that that is our most crucial need. While the other items are important, I really hope that 

we can emphasize change in that area. 

[Prepared statement of Ms. Lerner follows:] 

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Mr. ROSS. Thank you, Ms. Lerner. I appreciate that. 

Just as a reminder, your written testimony is a part of the 

record, so it is all inclusive. 

With that, I would like to recognize Mr. Nathan for five minutes 

for an opening. 

STATEMENT OF IRVIN B. NATHAN 

Mr. NATHAN. Good morning, Mr. Chairman and Subcommittee 

members. I am Irv Nathan, the Attorney General for the District 

of Columbia. 

I am very pleased I was invited here today to testify about proposals to reform the Hatch Act and to speak in favor of reforms 

that would treat the citizens of the District of Columbia like the 

citizens of all States and localities across the country, allowing 

them to choose their elected officials, whether in partisan or nonpartisan elections, without inappropriate Federal restrictions. 

First, as a former General Counsel of the House, let me say how 

pleased I am to be back here at an institution for which I have 

such respect and admiration. Let me also comment as a person who 

has seen a lot of hearings that this is one of the rare hearings 

where everything that has been said on both sides of the aisle, we 

agree with and I believe that you agree with each other. I certainly 

hope that we can get these reforms passed. It is very important for 

the District of Columbia residents and for citizens around the country. 

The short of it is that under the Hatch Act, the current way the 

District of Columbia employees are treated just like a Federal 

agency which is completely inappropriate. It has had very damaging effects. We have a number of elected officials, one of whom 

is on the dais, and I am pleased to see Ms. Norton here today, and 

we have elected ANC members, elected school board members and 

as I testified in my statement now the Attorney General position 

will become an elective position starting in 2014. 

As it stands, since we are treated as a Federal agency, it means 

that people in those positions are not allowed to run for elective office in a partisan election. As an example, our ANC members are 

unpaid. These are private individuals they are unpaid, they are 

volunteers, they serve their neighborhoods, they serve the District, 

but because they are considered officeholders under the Hatch Act, 

they are precluded from running for partisan office. They cannot 

run for the City Council; they cannot run for mayor; they cannot 

run for our Congressperson’s spot. 

Similarly, our school board is in the same posture. They are 

elected on a non-partisan basis but they cannot run in partisan 

elections. As it applies to the Attorney General position, I was appointed by the Mayor, this was an appointive position beginning in 

2011 when I was first appointed, and has now become an elective 

position in a partisan election. 

It means if I wanted to run for this office, or more appropriately 

if some of my senior deputies who have been there for years, want 

to run for this position, they are not permitted to under the Hatch 

Act. Even more preposterously, if someone runs and is elected to 

the Attorney General position this term, if that person wanted to 

run for reelection, they would have to resign before they could run 

17 

for reelection, a loss to the public and something that makes no 

sense. 

The solution, we suggest, is to pass the reforms that Congressman Cummings and his colleagues have proposed and also to make 

clear that District of Columbia employees should not all be lumped 

together. We also have judges and folks who work in the City 

Council, which is an elected position as well, and they should not 

be covered by the Hatch Act. It should be for Executive Branch employees. 

We certainly support the basic notion of the Hatch Act. We are 

not looking for anybody to pressure or engage in partisan activities 

in carrying out their positions, but by not permitting them to run 

for election, you are depriving our electorate of their choices of people who are well qualified and you are depriving people who are 

in good position to help the city from running for election. 

We urge you to modify the Hatch Act to pass the reforms that 

have been proposed and to make the tweak as it applies to the District of Columbia, that we be treated like local government officials 

and that it only apply to Executive Branch officials within the District Government. 

Thank you very much. 

[Prepared statement of Mr. Nathan follows:] 

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Mr. ROSS. Thank you, Mr. Nathan. 

I will now recognize Mr. Greiner for five minutes for an opening. 

STATEMENT OF JON J. GREINER 

Mr. GREINER. Good morning, Chairman Ross and members of the 

Committee on Oversight and Government Reform. 

My name is Jon Greiner, former Police Chief of Ogden City, 

Utah, former Utah State Senator and Hatch Act violator. I appreciate the opportunity to appear before today to discuss my experience with the Office of Special Counsel and their enforcement of 

the Hatch Act. 

Early in March 2006, I was recruited to run for the Utah State 

Senate by a number of legislators and representatives of the Utah 

Attorney General’s Office. I scheduled time with the Ogden Mayor 

and City Attorney to talk about the City’s position on the matter 

in the final days of the candidate filing period as their employee 

to get their approval as this service is determined by them to be 

in the best interest of the residents of Ogden City. 

On about October 3, 2006, I was contacted by phone by an attorney of the Office of Special Counsel about an anonymous complaint 

allegedly filed against me regarding a potential Hatch Act violation. She asked that I summarize the current police department 

grants in a letter back to her. I sent her an email with that summary. 

Over the next couple of weeks, we corresponded back and forth 

to give her everything she needed to conduct her investigation. She 

sends me a letter towards the end of October saying she believes 

I am in violation of the Hatch Act. We hire attorneys and get started trying to figure out what the encompassing part of all this 

means. 

The best case law we could find at the time was a recent decision 

about a year old involving an assistant police chief named Richard 

Perkins out of Henderson, Nevada. We contact him, we contact others, and go through the limited amount of paperwork we could find 

in 2006 trying to comply with the request from the Office of Special 

Counsel. 

By November 3, there was a response from the Special Counsel’s 

Office outlining their desire to have me get out of the race or give 

up my job as a police chief. We responded trying to understand and 

trying work out things to no avail. They tell us in the correspondence towards the end of October of that year that they may seek 

a complaint against me and the city of Ogden. 

I had suspended my campaign and tried to work through all of 

this to no avail. There was absolutely no negotiation with the Office of Special Counsel. There was nothing they wished to discuss 

with our attorneys, so we went through the election and I was 

elected. Two years later, we were put on notice that they were 

going to come after the city of Ogden for allowing me to run for 

elective office. 

There’s a hearing before an administrative law judge in early 

2009. Again, the attorneys in the State of Utah don’t understand 

the Act. It became an issue of do we get discovery, do we get to 

have witnesses, do we get to have anything that at a hearing before a judge or others and we got nothing. 

26 

We appeal the conviction of the ALJ to the Merits Systems Protection Board and in a decision in November 2011, they ruled that 

the ALJ was correct in her interpretation of the Hatch Act law and 

directed my termination from the city happen by the end of 2011 

or that the city forfeit two years of my salary as a penalty and future grant money. 

To that point, there were hundreds of pages of legal documents 

on both sides of this issue outlining the selective enforcement and 

the misunderstanding by the State attorneys; there were several 

hundred thousands of dollars in attorneys’ fees spent to try and understand the public good of this civil law that impacts State and 

local government without any consideration of the mitigating circumstances, including the penalties as outlined by Representative 

Chaffetz to myself. I cannot have an executive position in the State 

of Utah in law enforcement as a prohibition for 18 months. That 

exceeds penalties Federal courts give convicted felons who have 

committed crimes for which jail is a possible remedy. 

I offer up Barry Bonds, 30 days house arrest and a $4,000 fine 

for lying to a Federal grand jury. That penalty is minimal in comparison to what the Hatch Act has imposed on me for nothing more 

than being a point of contact in a grant for which the city of 

Ogden’s police department did not receive one penny. 

Thank you for your time and I am prepared to answer any questions you may have. 

[Prepared statement of Mr. Greiner follows:] 

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Mr. ROSS. Thank you, Mr. Greiner. 

Mr. Coffina, you are recognized for five minutes for an opening. 

STATEMENT OF SCOTT A. COFFINA 

Mr. COFFINA. Chairman Ross, Ranking Member Lynch and distinguished members of the Subcommittee, my name is Scott 

Coffina and I appreciate the opportunity to share my thoughts on 

reform of the Hatch Act. 

As a former Associate Counsel for President George W. Bush 

whose responsibilities included advising and training the White 

House staff on the parameters of the Hatch Act, and as a former 

staffer in President Reagan’s Office of Political Affairs who had to 

work under its restrictions, I applaud this committee’s efforts to 

enact sensible changes to this law. 

The Hatch Act serves a very important purpose for our Federal 

Government, freeing the government workplace from partisan political influence and coercion. The Hatch Act does protect Federal 

workers from political pressure when performing their jobs and 

benefits the public by delivering performance that is free from partisan political influence. 

Still, the benefits of the Hatch Act come with a price. Its restrictions on political activity implicate the First Amendment rights of 

millions of Federal employees as well as those of State and local 

government officials whose jobs are funded at least in part with 

Federal dollars. Because political activity is at the heart of First 

Amendment protection, restrictions on political activities must be 

carefully considered to be sure they serve the purpose of keeping 

the government workplace free of partisan political influence and 

corruption. 

It was in this spirit that the last significant overhaul of the 

Hatch Act was enacted in 1993. The 1993 amendments dramatically loosened the restrictions of the Hatch Act that essential locks 

government employees out of the political process entirely. With a 

laudable focus on protecting the integrity of the government workplace, the changes enacted in 1993 struck the appropriate balance 

by allowing most Federal employees to engage in political activity 

while off duty while maintaining strict restrictions on political activity in the government workplace. 

The Office of Special Counsel has done a commendable job of trying to maintain that balance between the First Amendment and its 

mandate to enforce the Hatch Act and provide guidance to government employees on what the law does and does not permit. Its program of providing advisory opinions gives practical, timely guidance to prudent government employees or counsel who ask questions before engaging in conduct about which the law is unclear. 

Still, in recent years, we have seen ambiguities in the Hatch Act 

lead to confusion in government ranks and uneven enforcement by 

the Office of Special Counsel. In addition, a lot has changed over 

20 years and the time is right to consider amending the law to address its ambiguities, to keep pace with technology and to address 

the areas where the law does not work well or doesn’t meaningful 

serve its purposes. 

The touchstone of reform ought to be striking the right balance 

between First Amendment rights and reinforcing those provisions 

31 

of the Hatch Act that most serve its goals, namely that Federal employees may not use their official authority or influence to interfere 

with the outcome of an election, may not solicit or accept political 

contributions, may not pressure subordinates or colleagues to engage in political activity, may not solicit or encourage political activity by anyone within the business before their agency and may 

not use official resources towards political ends. 

With these principles in mind, I believe that necessary and sensible Hatch Act reform would include the following changes. One 

is lift the prohibition on State and local employees running for political office. All three of the bills proposed so far include this commonsense reform. This arbitrary restriction only on State and local 

officials whose jobs are supported by Federal funds taxes the resources of the Special Counsel without appreciably advancing the 

goals of the Hatch Act. 

Two, introduce graduated sanctions to address minor infractions 

as proposed by Representative Cummings. Most government employees try to play by the rules. If they mistakenly wear a campaign button in the office, a warning should be sufficient to vindicate the law. 

Three, treat outside political communications during the work 

day from personal smartphones and BlackBerrys in the same manner as personal phone calls and emails. Technology has made it 

possible to quickly send political messages to outsiders without 

using government resources or significantly disrupting the sender’s 

work day. It has also made the requirement that when employees 

leave the Federal building to do so impractical and unenforceable. 

Political communication should be permitted in the same manner 

that personal calls are permitted as long as they are not excessive, 

are not directed to other employees or otherwise violate the Hatch 

Act. 

Four, Federal employees who wish to post permissible political 

messages on blogs or social media pages should not have their government title appear on those pages even if only in their profile. 

In my view, there is too much risk that the title will land undue 

weight to the otherwise personal political views of the employee. 

Similarly, government employees whose title appears on their social media pages should be responsible to remove any political 

fundraising solicitations placed on their page by others within a 

reasonable time. 

Five, the definition of who is included in the relaxed restrictions 

for certain White House employees and senior government officials 

should be clarified. First, there should be a presumption that all 

appointed White House employees fall within the relaxed restrictions. Second, all White House employees, except perhaps those in 

the national security area, should be permitted to assist the President and Vice President in their political activities. 

Under the standards employed by the Office of Special Counsel 

in its January 2011 report on the Bush Administration, only high 

level White House employees can assist the President with the 

preparation and execution of a political trip which simply is not 

practical. 

Sixth, and finally, recent controversy involving both parties demonstrates the importance of properly allocating the cost of political 

32 

and official events to ensure that the public is not underwriting political activity. The classification of events whether official or political should be done primarily according to objective criteria about 

the origin and execution of the event rather than focusing on the 

subjective motivation behind them. Some questions aimed at evaluating these events objectively are set forth in my written testimony. 

Once again, I appreciate the Committee’s bipartisan efforts for 

meaningful Hatch Act reform and the opportunity to share my 

thoughts with you today. I would be happy to address any questions you might have. 

[Prepared statement of Mr. Coffina follows:] 

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Mr. ROSS. Thank you, Mr. Coffina. 

Mr. Adler, you are recognized for five minutes for an opening. 

STATEMENT OF JON ADLER 

Mr. ADLER. Thank you, Chairman Ross, Ranking Member Lynch, 

distinguished members. This is a rare instance for me where I actually agree with everyone on my panel. Therefore, I don’t think I 

don’t want to waste everyone’s time by sort of restating what has 

already been said. I am proud everyone is working so well together 

to address this important issue. 

I mean the main theme here is we don’t want the Hatch Act to 

become a hatchet act. I think, based on the recommendations expressed, we are definitely going in the right direction. I think the 

Hatch Act Modernization Act put forth by Ranking Member 

Cummings is on point. It is a proactive effort to address the serious 

issues from my perspective and my membership, representing 

26,000 members of the Federal law enforcement community, the 

concerns in terms of the penalties, as Mr. Coffina stated, having 

those lesser penalties to address an issue of a button, a screensaver 

or something where technically it might be a violation of the current statute but it doesn’t rise to the level of termination. Certainly 

it should ease the resource pressures on Ms. Lerner and her very 

well organized staff. 

Having said that, I think it is more important to yield my time 

so that we can get to questions and other comments that are relevant to moving this forward to a collective understanding and 

proper conclusion. 

I am here to answer any questions. Thank you. 

[Prepared statement of Mr. Adler follows:] 

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Mr. ROSS. Thank you, Mr. Adler. 

I also want to echo your sentiments about the cooperation, especially with my colleagues and Ranking Member Cummings for his 

bill in this regard. 

Ms. Lerner, with regard to investigations under the Hatch Act 

and violations, how much money does OSC spend annually investigating State and local Hatch Act claims? 

Ms. LERNER. It is tough to put a number on it. I can tell you our 

agency’s entire budget is around $18.5 million. We have about 110 

employees altogether and have 8 employees in our Hatch Act Unit. 

Our whole agency gets about 4,600 individual cases per year 

through all of our program areas, and the numbers are going up 

pretty significantly. We have had a 10 percent increase. 

Mr. ROSS. Would you say exponentially? 

Ms. LERNER. Yes. We are seeing exponential growth in every single one of our program areas. 

Mr. ROSS. In terms of complaints? 

Ms. LERNER. In terms of complaints in the Hatch Act Unit, in 

every one of our units. We also do disclosures, we do USRO, we do 

prohibitive personnel practices like retaliation, so we are really 

stretched. 

Mr. ROSS. Could you pinpoint dollarwise? Is it hard? 

Ms. LERNER. I really hesitate to put a dollar number on it. I can 

give you specific numbers about the number of cases that we have 

in our Hatch Act Unit. 

Mr. ROSS. Would you say the State and local Hatch Act workload 

is greater than, equal to or less than for Federal Hatch Act violation investigations? 

Ms. LERNER. It is about 45 percent of our entire Hatch Act load. 

Our Hatch Act load right now is over 1,000 cases, Federal, State 

and local, every year and about 3,000 advisory opinions every year. 

Mr. ROSS. Would you say the State and local investigations 

under the Hatch Act is interfering with the Federal? 

Ms. LERNER. Absolutely. 

Mr. ROSS. No question about it? 

Ms. LERNER. Absolutely. We have serious cases, the coercion 

cases, the misconduct cases. As I mentioned, where I would really 

like to be able to put some resources is in the education and outreach so we can prevent these things from happening in the first 

place. So many people, you heard the testimony today, people don’t 

understand the Hatch Act. If we are going to hold employees responsible for being in compliance, we have an obligation to them 

to do some outreach and education. 

Mr. ROSS. Another aspect of the Hatch Act that is disconcerting 

to me, especially this being an election year, have you found the 

candidates for political office use the Hatch Act against each other 

during these elections? 

Ms. LERNER. Absolutely. 

Mr. ROSS. Is it pretty prevalent? 

Ms. LERNER. I would say it is. We are seeing this happen at both 

the individual level with individual candidates. We often get complaints from an opponent in a political race, not just Republicans 

versus Democrats. Sometimes it is in the primary and a Democrat 

46 

will file a complaint against a fellow Democrat or a political organization. 

Mr. ROSS. The mere allegation alone is damaging enough regardless of the substance? 

Ms. LERNER. Absolutely. 

Mr. ROSS. I understand there is an OSC investigation involving 

Secretary Sebelius with regard to a gubernatorial campaign. Do 

know the status of that investigation? 

Ms. LERNER. We talked with your staff about the status of that 

investigation which has been reported publicly. We received Chairman Issa’s letter which alleged a potential violation of the Hatch 

Act. As I mentioned, we discussed this with the committee prior to 

the hearing but in accordance with our policies, I cannot really add 

anything further at this time. 

Mr. ROSS. Can you comment as to when you think that report 

might be issued? 

Ms. LERNER. It is being actively investigated and I hesitate to 

give you a date that may or may not be right. As I mentioned, we 

have eight lawyers to cover all of our Hatch Act cases, but we are 

making this one obviously a priority. We will get through it very 

quickly as we can. 

Mr. ROSS. Thank you. 

Mr. Greiner, with regard to the allegations against you and the 

violations found, specifically what was the amount of the grants involved? 

Mr. GREINER. I can go back to each of the grants. There were 

four grants, they were all multi-jurisdictional type grants. We try 

to do that to get the grants. The grant that was the focal point of 

the decision by the ALJ was a $400,000 grant for a dispatch center 

that had nothing to do with the police department. 

Certainly we get the benefit of the dispatch center being there 

but it was a cooperative effort that was put together to try and get 

some grant money for State communications sites to improve the 

connection between police and fire departments in two counties. We 

had already built a new building with that. 

Mr. ROSS. Upon receipt of the grant money, did you have any 

control over where it went? 

Mr. GREINER. No, and not one penny came to the police department I managed. 

Mr. ROSS. You had absolutely no authority over the delivery or 

distribution of the grant money? 

Mr. GREINER. Not one penny. 

Mr. ROSS. You talked about several hundred thousand dollars 

with regard to lawyer fees. How much did it personally cost you to 

defend yourself in this confrontation? 

Mr. GREINER. I was out of pocket over $30,000 personally before 

the Office of Special Counsel filed a complaint against the city and 

then the city picked up the remainder of the tab. 

Mr. ROSS. Thank you. My time has expired and I will now recognize the Ranking Member of the full Committee, Mr. Cummings 

from Maryland. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. 

Ms. Lerner, on March 7, I introduced the Modernization Act. The 

legislation implements two recommendations the Special Counsel 

47 

made for immediate reform. First, the legislation eliminates the 

Hatch Act prohibition on State and local government employees 

running for office. I understand that is very important to you. This 

would take the Federal Government out of the business of telling 

State and local government employees such as Mr. Greiner whether they can serve their country by running for elected office. 

Ms. Lerner, can you explain why eliminating this provision is so 

important to you and your office? 

Ms. LERNER. Sure. I would like to start though by thanking you, 

Mr. Cummings, for introducing the Hatch Act legislation. I appreciate that very much. Your efforts are truly appreciated. 

The reason this is so important as I mentioned in my opening 

statement, there are a number of reasons the State and local provision is so important to my office. First, just from the standpoint of 

fairness, I don’t think I have talked to anybody, either here in Congress or in government, who thinks that it is fair that people cannot serve their local communities just because they are employed 

by State or local government that receives some money. It can be 

a very small amount or they can just be touched by Federal funds, 

so there doesn’t have to be a strong connection, and then they can’t 

serve, they can’t run for office. 

It is first the issue of fairness. Is this really something we want 

to do? Is it the proper role for us to be telling State and local governments how their employees should be behave? As I also mentioned, most States have their own rules for how their employees 

should behave. Most states have their own rules that would cover 

this issue. They have either mini-Hatch Acts or ethics rules. I 

think it is appropriate for those States and localities to enforce prohibitions on their own employees. 

Mr. CUMMINGS. I am sure you have taken a look at those State 

provisions. There was an intent when this Hatch Act was developed to address certain issues. I guess what I am trying to figure 

out have circumstances changed over time and they become outdated? If the States are doing this, what is the difference between 

what a State is doing and what the feds are doing now? Do you 

follow me? 

Ms. LERNER. I am. I think what has happened since this Act was 

first enacted and since it has been amended is that there has been 

an influx of Federal funds into the States, particularly after 9/11 

in the law enforcement area. Now virtually every law enforcement 

agency at the State and local level receives some Federal funds. 

The breadth of this Act is much, much larger than it was ever intended. 

There are sort of three parts to this. One is the running for partisan political office and that is the only thing the legislation would 

strongly affect. The coercion issue and the improper use of office 

would still be there, so we would have enforcement ability in those 

two areas. As far as I can see, there is no real purpose in saying 

someone cannot run for office just because they happen to work for 

a State or local government that receives some Federal funds or 

that their job is touched by some Federal funds. 

Mr. CUMMINGS. What was the original intent? Do you understand what I’m saying was it to try and block people from running 

48 

for office? Was it that people in office were saying we don’t want 

people running against us? Are you following what I am saying? 

Ms. LERNER. I think the original intent was to try and keep politics out of the civil service. Frankly, it is having the opposite effect 

now. It is becoming much more politicized because of this provision. 

I think it was never intended to do that and these consequences 

were unforeseen at the time. 

Mr. CUMMINGS. So you are seeing situations where you have a 

law, you have to enforce it, but you yourself look at it and say, wait 

a minute, there is something awfully wrong here? 

Ms. LERNER. Yes. Within a couple months of my taking office in 

June, I was having conversations I think with both you and Chairman Issa about this law. We sent over some proposed legislation 

in October to try and resolve it. We are going to enforce the law. 

The way the law reads right now, it is not something I am particularly comfortable doing but we are going to enforce it because that 

is our job, but I sure hope you all can change it. 

Mr. CUMMINGS. Thank you. 

Thank you, Mr. Chairman, for your courtesy. I really appreciate 

it. 

Mr. ROSS. Thank you. 

I now recognize the gentleman from Massachusetts, the Ranking 

Member of the Subcommittee, Mr. Lynch, for five minutes. 

Mr. LYNCH. Thank you, Mr. Chairman. 

I want to thank all the witnesses. It is unusual that we get a 

whole panel that basically agrees and as well, that agreement is reflected up here on the dais. Since we all agree this is a good idea, 

we will probably have to kick it upstairs to party leadership and 

they will come up with some reasons why we really don’t agree because this can’t happen. 

Mr. Adler, first of all, I want to acknowledge that this is actually 

National Police and Peace Officer Week. From the dais on both 

sides, we want to acknowledge the fact that you and your members 

do some terrific work in protecting us and the government, the 

Capital and also the Federal Government and the Nation. We appreciate the risk that you confront every single day. These have 

been some tough months for law enforcement all across the country. Our prayers and thoughts go out to you and your members. We 

really appreciate the work you do every day. 

You were very economic in your remarks initially, so I have to 

punish you for that. In terms of education on the Hatch Act, as 

Counsel Lerner has pointed out, after 9/11 a lot of Federal money 

got pushed out to both police and fire, fire grants, cops grants, so 

now this connection, however tenuous it might be, is there and precludes people from running for office and other limitations are put 

on you as well. 

How do your folks get educated on the Hatch Act? Are they advised in advance or is it when they trip up and all of a sudden it 

comes down on them? 

Mr. ADLER. Maybe it is a whisper in advance. I think we could 

learn from the other areas of training that we get by way of ethics, 

sexual harassment, computer security where we get these online 

training sessions where we can actually see something. I think 

typically what happens is whether it comes down from the AttorVerDate Aug 31 2005 15:36 Jul 26, 2012 Jkt 000000 PO 00000 Frm 00052 Fmt 6633 Sfmt 6633 C:\DOCS\75112.TXT APRIL
49 

ney General or there is some memo that will come down prior to 

an election, right about now, that gets circulated. It could be a 

three, four or five page letter, fun size probably eight, which is a 

challenge for me, and although it may be well written and thorough, it doesn’t exactly rise to the same level or the same effect 

that other types of training the government delivers again by way 

of ethics training and other areas of importance. 

As Ms. Lerner said, there is an absolutely better outreach and 

education. I think certainly we could use examples and Mr. Coffina 

hit upon it, a screen saver issue, a Facebook posting. We now have 

people authorized to work out of their home, so if during your 

lunch period at home, which I guess they decide, they go on their 

computer and make a Facebook entry, do they really understand 

what they are doing? 

I think, in general, everyone has sort of a broad sense as to what 

the Hatch Act is, but when you break it down, as Ms. Lerner made 

clear, we are putting her on the spot when someone technically violates the Hatch Act unwittingly, that they are subject to termination, which is unfair and unreasonable. 

Mr. LYNCH. By having a graduated penalty process where some 

of the very minor you know, wearing a pin as Mr. Coffina indicated, it is the death penalty, basically severance from employment 

is what has to happen. That graduated penalty process may be a 

warning, take off the button, that type of thing would certainly 

lighten the load for Ms. Lerner and her staff. 

This all seems to be commonsense. You would think we should 

be able to come up with these modest and I think very sound recommendations. 

I am going to suspend as well. Thank you. I yield back. 

Mr. ROSS. Thank you, Mr. Lynch. 

I now recognize the gentlelady from the District of Columbia, Ms. 

Norton, for five minutes. 

Ms. NORTON. Thank you very much, Mr. Chairman. 

I appreciate you invited a witness from the District of Columbia 

and a particularly well qualified witness so we can get to this longstanding issue. 

This House actually, I think in my first term in Congress, actually changed the Hatch Act not to apply to the District. The bill did 

not pass the Senate and here we are again more than 20 years 

later. 

Mr. Nathan, at page six, you say, ‘‘I stated earlier, the legislation 

should be amended so that similar to Congress, the Hatch Act does 

not apply to the District’s legislative or judicial branches.’’ Do you 

have any issue with the legislation with respect to the District of 

Columbia as it is now framed in the bill? 

Mr. NATHAN. We support the bill which would move the District 

of Columbia away from being treated as a Federal agency and 

being treated more like a State and local jurisdiction and obviously 

allowing people to run in partisan elections. 

I think it could be a tweak to make it clear that when it talks 

of the D.C. Government, it is talking about the Executive Branch 

of the D.C. Government. We would be prepared to supply some language to that effect because the Federal Hatch Act does not apply 

50 

to the judiciary or to legislative personnel, not only members of 

Congress but staff as well. I think it ought to be parallel. 

Ms. NORTON. I would appreciate receiving your suggestions on 

that modification. 

Mr. NATHAN. I would be delighted. 

Ms. NORTON. Mr. Coffina, I must tell you, you waded into an 

area that I don’t envy you for doing. That has to do with the President and his employees as they make trips during campaign season. I must tell you it reminded me of what we go through here 

when we are putting out a newsletter and we have to see what 

words can or cannot be used. It is a painful exercise. 

You speak about the President’s trip on student loans, I think. 

On student loans we get into a subject that comes up during every 

election. It is perhaps the most partisan of issues. You suggest 

there is a way to somehow thread this needle. I think it is important that you point out examples that are indeed troublesome. 

In the case of student loans, this was a matter that was not in 

the Republican budget at all and the President kind of 

barnstormed where you might expect him to, student campuses, 

and discussed this issue. It was the first time the issue had been 

discussed in the Congress. It was profoundly an official issue. You 

say, I think with great fairness, that this matter involves the subjective, second guessing, but you do suggest there are ways to solve 

it. 

I have my doubts, Mr. Coffina, because you indicate there is an 

authoritative legal opinion from 1982 and I can tell you, I don’t 

think anybody can find any campaign since 1982 where this was 

not a major issue for the other side, so I have my doubts about 

what to do about it. Your notion about the theme of the remarks, 

free existing or not, again, I am struck with how this might be 

quite unenforceable. 

I hate to see something that may be a violation not be tagged but 

I must say there has to be a way other than going through a list 

the way we do when we go to franking to see if that word or this 

word should have been used or that detour or why they do this or 

was it because of this or that reason. It strikes me that we are into 

a thorn here. 

I would like to note if you really think that these suggested notions of how to evaluate whether the trip is political or not. Do you 

suggest they haven’t been used? Has anybody ever sought to enforce these? Has there been an enforcement action that anybody 

paid attention to? 

Mr. COFFINA. Congresswoman, I personally sympathize with the 

complexity that you have described, having dealt with this myself 

when I worked in the White House trying to sort out, as I had 

events and expenses I needed to approve, is this political, is this 

official and what are standards to apply. It is very difficult. 

Unfortunately, the current standards in place for it don’t go anything beyond saying it is a subjective evaluation and must necessarily turn on the facts. What I tried to do in my written testimony, I tried to introduce and reflect the objective criteria I tried 

to apply when I was making these determinations myself, understanding that subjective motivation and where did this event come 

from is a part of it. 

51 

There are certain yes or no questions that you can ask to try to 

say which is the better way to classify this, what is the better way 

to make sure the expenses for this trip are properly borne by the 

public or properly borne by a political party. I was looking for objective criteria that might help guide that. 

Ms. NORTON. Mr. Coffina, you say tried to use these criteria 

when you were in the White House. Were you able to use them? 

Did others in the White House use them? Were they useful then? 

Mr. COFFINA. Yes, I found them to be useful. I found in evaluating, for example this was an issue in the Office of Special Counsel’s report from 2011, if a surrogate event took place in a district 

of an incumbent, the question was is this politically motivated to 

help the incumbent? This is an objective question. Where did the 

event come from? Where did the request come from? Did the member’s official office invite the President or a surrogate to participate 

in that local official event or did it come and originate within a 

campaign staff? 

Mr. ROSS. Unfortunately, the gentlelady’s time has expired but 

we will be able to supplement the record with questions to the 

panel as well. 

With that, I will recognize the gentleman from Virginia, Mr. 

Connolly, for five minutes. 

Mr. CONNOLLY. Thank you, Mr. Chairman. 

Thank you to the panel for some thought provoking testimony. 

Ms. Lerner, you heard Mr. Coffina enumerate a number of what 

he characterized as practical, common sense changes to the Hatch 

Act that would make it more workable. What is your reaction to 

his enumerated list? 

Ms. LERNER. In the category of political travel, I want to just 

note that we did issue a very extensive, thorough advisory this past 

fall on October 6, 2011. We put a lot of thought into how best to 

give guidance to the government and to employees about political 

travel. I think that really has, in many ways, moved the ball forward and provided the type of clarity that has been needed. Ms. 

Galindo-Marrone can address that issue a bit more as well. 

Mr. CONNOLLY. But did you have any major exceptions to Mr. 

Coffina’s list? You have already testified you want to see changes 

to the Hatch Act? 

Ms. LERNER. I do. I have to tell you quite honestly, we are not 

seeing a lot of cases about these other peripheral issues—political 

travel, social media, and frankly the Facebook stuff hasn’t been an 

issue. Email is a little bit more of an issue. On the social media 

issue, certainly the Internet and social media have dramatically 

changed the way we gather and share information and the way 

Federal employees use it has implications, but as an enforcement 

issue, it really hasn’t been much of an issue. We have had maybe 

two or three of these cases. 

Mr. CONNOLLY. In response to Mr. Cummings’ question to you, 

he asked why does the Hatch Act cover State and local government, what was the thinking? Your response was, ‘‘I think the 

thinking was to try to protect civil service from partisan overt political activity.’’ God knows we have seen in American history, State 

and local governments used as instruments of a political machine, 

organization or even candidates. That goal might be a worthwhile 

52 

one but the question is do we need a Federal umbrella to be dictating to State and local governments how they want to conduct 

their own business? 

Did I understand your answer? You said that was the purpose 

and then you said, but it seems to have the opposite desired effect. 

What did you mean? What is the opposite? Are State and local governments being taken over by political machines? 

Ms. LERNER. Let me clarify that the only aspect of the State and 

local candidates’ provision that we are advocating to reform is the 

ability for folks to run for election, partisan political election. They 

can already run for non-partisan positions. 

Coercion matters would still be within our jurisdiction. Improper 

use of political office would still be covered. The stuff that I think 

was originally intended to be covered on the State and local level 

would not be affected at all. 

The reason that the running for partisan political office is creating a lot more angst is because it is being used primarily as a 

weapon. We can only take on those cases when a complaint is filed 

with our office. We don’t go looking for them. The folks who file 

these complaints, for the most part, are political opponents. It is 

coming within party, so in a primary a Democrat could file a complaint against a fellow Democrat who they are running against. 

Mr. CONNOLLY. Just an observation, running for partisan political activity as opposed to running for non-partisan political activity, in Virginia many cities and many towns run ostensibly on a 

non-partisan basis, getting around the Hatch Act. 

Ms. LERNER. Yes. 

Mr. CONNOLLY. It is an enormous fiction that everybody understands. For example, Mr. Cantor, the Majority Leader in this 

House, one of his key aides is an elected official in Fairfax City in 

my district, does a good job, but there is no fiction about what 

party affiliation he has and what he does on his day job. While it 

is a useful tool, I guess, to get around the Hatch Act, I am not sure 

it actually achieves the desired outcome. 

Ms. LERNER. The Mayor of Chicago is a non-partisan election. 

Mr. CONNOLLY. Yes, he is. He is very non-partisan. I know him 

personally. 

Ms. LERNER. Whoever happens to be in that position at the time. 

You raise an important point and it creates this feeling of unfairness. We have gotten lots of complaints from folks saying, you 

didn’t tell the person in the county over that they couldn’t run and 

they work for the government. We get a lot of those complaints. We 

have to say we are really sorry but in that county, school board is 

non-partisan. It creates this feeling about arbitrariness and unfairness. It shouldn’t matter what county you live in. 

Mr. CONNOLLY. Thank you, Mr. Chairman. 

Mr. ROSS. Thank you. 

Before I recognize our next member, I recognize Mr. Lynch for 

submission of a report. 

Mr. LYNCH. Thank you, Mr. Chairman. 

I would ask unanimous consent that the Committee may accept 

this testimony, ‘‘The Hatch Act, Options for Reform,’’ a statement 

submitted for the record by the Federal Managers Association. 

53 

Mr. ROSS. Without objection, it shall be made a part of the 

record. 

Mr. ROSS. Thank you. 

I now recognize the gentleman from South Carolina, Mr. Gowdy, 

for five minutes. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Mr. Chairman, it has been 15 years since I was subject to the 

Hatch Act so forgive me if I am playing catch-up a little bit. Who 

would be the most knowledgeable panel member for me to pose my 

question to? 

Mr. ROSS. Ms. Lerner. 

Ms. LERNER. It depends on what your question is about. 

Mr. GOWDY. It is kind of remedial. My understanding is Executive Branch employees may not solicit campaign contributes from 

their peers. 

Ms. LERNER. That is right. 

Mr. GOWDY. Are there any exceptions to that? 

Ms. LERNER. I am actually going to punt this one to Ana 

Galindo-Marrone who is the Chief of our Hatch Act Unit and 

knows every detail about how the Hatch Act affects Federal employees. 

Mr. GOWDY. That sounds like a great person to punt it to. Are 

there any exceptions to that general rule? 

Ms. GALINDO-MARRONE. Good morning, Congressman. 

First, the solicitation prohibition is broader than just prohibiting 

Federal employees from soliciting other colleagues. The prohibition 

extends to anyone, so no Federal employee in the Executive Branch 

can solicit, accept or receive political contributions. The one exception concerns Federal labor organizations and Federal employee organizations. 

Mr. GOWDY. That is what I thought. Why that exception? 

Ms. GALINDO-MARRONE. I am not sure of the reason why. 

Mr. GOWDY. You were just described as the most knowledgeable 

person on this issue. If you can’t tell me why there is an exception 

for Federal labor organizations, who can I ask? 

Ms. GALINDO-MARRONE. I reviewed very briefly last night in 

preparation for this the legislative history and it is somewhat scant 

in terms of what Congress was thinking when the exception was 

introduced. It does have some limitations, so there are some qualifiers in terms of the exception if you want me to go over that. 

Mr. GOWDY. Sure. 

Ms. GALINDO-MARRONE. The Federal labor organizations, although the members of those groups can solicit, they still cannot 

solicit, accept or receive while on duty or in the Federal workplace, 

the solicitation. 

Mr. GOWDY. Is there something called official time? 

Ms. GALINDO-MARRONE. Correct, but under the Hatch Act, even 

official time, union official time is considered on duty for purposes 

of the Hatch Act. 

Mr. GOWDY. So you still cannot solicit? 

Ms. GALINDO-MARRONE. Correct. 

Mr. GOWDY. If you are at a United States Attorney’s office, you 

cannot solicit, participate, but can you show up at a political event 

after hours? 

54 

Ms. GALINDO-MARRONE. After hours, any Federal employee can 

attend a political event. 

Mr. GOWDY. Can their name be on a host committee? 

Ms. GALINDO-MARRONE. It cannot. I was going to explain in 

terms of the union exception, the solicitation is only specific to the 

union’s pact and cannot be directed at anyone that is a subordinate, so when terms of lets say a fundraising event where there is 

a host committee, typically even union members will not be able to 

be listed as a member of the host committee. 

Mr. GOWDY. I am still trying to understand why there would be 

an exception for Federal labor organizations. Could you hazard a 

guess? 

Ms. GALINDO-MARRONE. I could try to hazard a guess if I did 

some more research and maybe we supplemented a response after 

today’s hearing. 

Mr. GOWDY. Mr. Chairman, you are the most knowledgeable person I know. 

Mr. ROSS. If I am you reference on that, we are not in good shape 

here. 

The gentleman from Massachusetts. 

Mr. LYNCH. I might be able to illuminate a little bit. Up until 

1993, I believe, the United States Postal Service was prohibited, 

any postal worker from getting involved in a campaign at all. At 

that point, letter carriers, clerks who really had a rather peripheral 

role in the Federal appropriations process were granted the ability, 

they were given relief under the Hatch Act. This may have been 

something that happened at that time where we basically removed 

them from limitations on the Hatch Act. This may have been something that happened at that point. 

Mr. GOWDY. I thank the Ranking Member. To your knowledge, 

is it limited to just postal employees, this exception? 

Ms. GALINDO-MARRONE. It includes all Federal labor organizations and Federal employee organizations that had a pact in existence in 1993 when the Act was passed. 

Mr. GOWDY. Mr. Chairman, can I ask one more question? 

Mr. ROSS. Without objection, yes. 

Mr. GOWDY. I want you to assume there is a county employee 

who wants to run for coroner, which is still an elected position in 

South Carolina. Some people call them medical examiners, some jurisdictions have forensic pathologists. We still have coroners. The 

office that employs this putative coroner receives some Federal 

grant monies. 

Does this person who seeks to run for partisan office as coroner 

have to resign his or her job, take leave without pay, not campaign 

during working hours? What are the limits, even if it is just a 

small amount of a Federal grant that goes to an office that happens 

to employ this person, how would he or she be impacted? 

Ms. GALINDO-MARRONE. If the individual has duties in connection with the Federal grants that are being received by the office, 

that is the first qualifier. It is not enough that the agency received 

Federal grants, the individual would have to have duties in connection with the Federally-financed programs. 

55 

If that is the case, then currently, as the law reads, the individual would have to resign from their State or local employment 

in order to run for partisan office. 

Mr. GOWDY. Is there any weighing of how much connection that 

person would have? Maybe they had 5 percent supervisory role or 

is it just a bright line test? 

Ms. GALINDO-MARRONE. Currently, there is some case law in 

terms of a de minimis exception and the case law on that point is 

less than one-tenth of one percent of the person’s time in connection. Typically, in the office, we look at 2 percent or less to be de 

minimis. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Good morning to the Attorney General from the District of Columbia. 

Mr. NATHAN. Good morning. It is good to see you again. 

Mr. ROSS. Thank you. 

I will now recognize the gentleman from Illinois, Mr. Davis, for 

five minutes. 

Mr. DAVIS. Thank you very much, Mr. Chairman. 

I want to thank all of the witnesses for coming. 

I believe that all of us here believe in the importance of the 

Hatch Act and continuing its prohibition on Federal employees engaging in political activity while on duty, in the Federal workplace 

while using Federal vehicles. 

However, we also recognize that new technology such as laptops, 

andBlackBerrys and new workplace developments such as telework 

have made it not always clear to employees what constitutes on 

duty and the Federal workplace. 

I appreciate the panelists making themselves available this 

morning to discuss how we can address updating the realities of 

the 20th Century Federal workplace and clarify what might be ambiguities in the law. Ms. Lerner, you pointed out that one of the 

ambiguities in the statute that the Office of Special Counsel would 

like Congress to address is the definition of political activity. You 

recommended that Congress codify the definition of political activity that is currently set forth in the Hatch Act regulations. 

Could you elaborate for us why you believe this term needs to 

be defined in the statute even though it is already defined in the 

regulations? 

Ms. LERNER. The Hatch Act regulations current define the term 

as ‘‘activity directed at the success or failure of a candidate for partisan political office, political party or partisan political group.’’ 

That is 5 C.F.R. §734.101. We have been using that definition that 

is in the regulations to define what is political activity. 

We think that Congress, in 1993, created a bright line rule that 

prohibited most Federal employees from engaging in political activity while on duty but they kind of missed the step of defining what 

political activity means, so we have been using the definition that 

is in the regs. That is a perfectly good definition; it just seems to 

make sense that it be codified. 

Mr. DAVIS. I am thinking of situations that I have personally 

known where individuals may have been working for State government and there might have been some grant activity from the Federal Government that funded a part of what it was that they did. 

56 

I am recalling one woman who ran for the State Senate and she 

was forced to resign from her office, although she did file a lawsuit 

later on after she lost and got her job back and was compensated. 

I never quite understood that but that is what happened in that 

particular case. Her union backed her and they won. 

Mr. Nathan and Mr. Coffina, what thoughts do you have on Ms. 

Lerner’s recommendation? 

Mr. NATHAN. My focus is on the District of Columbia. Mr. 

Cummings asked the question what has changed since 1939 when 

the Hatch Act was passed. With respect to the District of Columbia, there has been substantial change because in 1939 we had no 

elected officials in the District of Columbia. We had three appointed commissioners by the President, confirmed by the Senate 

and that was the full extent of it. 

Now, as a result of partial home rule, we have a Congresswoman 

who is elected from the District of Columbia; we have a Mayor; we 

have a City Council; we have a school board; we have our neighborhood commissioners and now the Attorney General’s Office is going 

to be elected. 

It is important so the citizens of the District of Columbia can 

elect their representatives that they be allowed to run whether it 

is in a partisan or non-partisan election. I don’t think it makes any 

difference and that the people in those offices or in other offices in 

the District can run. Our main focus here is on ensuring that the 

District of Columbia under the modified Hatch Act, under the reforms that you pass, are not considered to be an executive agency 

of the Federal Government, but a State or local government and 

that we be allowed to run in partisan elections as local officials 

should be as well. 

Mr. DAVIS. Thank you very much. 

Thank you, Mr. Chairman. 

Mr. ROSS. Thank you. 

That will complete our hearing today. I would ask the members 

who have additional questions to send those supplemental questions to the panelists within the next seven days. I will ask the 

panelists to respond accordingly. 

With that, I want to thank you for taking the time today on this 

very important issue. 

This Subcommittee now stands adjourned. 

[Whereupon, at 10:48 a.m., the subcommittee was adjourned.] 

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