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H.R. 4272, AN ACT TO AMEND CHAPTER 15 OF

TITLE 5, UNITED STATES CODE

HEARING

BEFORE THE

SUBCOMMITTEE ON FEDERAL WORKFORCE,

POSTAL SERVICE, AND THE DISTRICT

OF COLUMBIA

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

SECOND SESSION

ON

H.R. 4272

TO AMEND CHAPTER 15 OF TITLE 5, UNITED STATES CODE, TO PROVIDE FOR AN ADDITIONAL, LIMITED EXCEPTION TO THE PROVISION

PROHIBITING A STATE OR LOCAL OFFICER OR EMPLOYEE FROM

BEING A CANDIDATE FOR ELECTIVE OFFICE

SEPTEMBER 11, 2008

Serial No. 110–142

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

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.oversight.house.gov

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

HENRY A. WAXMAN, California, Chairman

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

BRIAN HIGGINS, New York

JOHN A. YARMUTH, Kentucky

BRUCE L. BRALEY, Iowa

ELEANOR HOLMES NORTON, District of

Columbia

BETTY MCCOLLUM, Minnesota

JIM COOPER, Tennessee

CHRIS VAN HOLLEN, Maryland

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

JOHN P. SARBANES, Maryland

PETER WELCH, Vermont

JACKIE SPEIER, California

TOM DAVIS, Virginia

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

VIRGINIA FOXX, North Carolina

BRIAN P. BILBRAY, California

BILL SALI, Idaho

JIM JORDAN, Ohio

PHIL BARNETT, Staff Director

EARLEY GREEN, Chief Clerk

LAWRENCE HALLORAN, Minority Staff Director

SUBCOMMITTEE ON FEDERAL WORKFORCE, POSTAL SERVICE, AND THE DISTRICT OF

COLUMBIA

DANNY K. DAVIS, Illinois

ELEANOR HOLMES NORTON, District of

Columbia

JOHN P. SARBANES, Maryland

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio, Chairman

WM. LACY CLAY, Missouri

STEPHEN F. LYNCH, Massachusetts

KENNY MARCHANT, Texas

JOHN M. MCHUGH, NEW YORK

JOHN L. MICA, Florida

DARRELL E. ISSA, California

JIM JORDAN, Ohio

TANIA SHAND, Staff Director

(III)

C O N T E N T S

Page

Hearing held on September 11, 2008 ..................................................................... 1

Text of H.R. 4272 ..................................................................................................... 2

Statement of:

Maskell, Jack, legislative attorney, American Law Division, Congressional Research Service; and Sandra Bell, general counsel, Ohio Civil

Service Employees Association, AFSCME Local 11 AFL–CIO ................. 34

Bell, Sandra ............................................................................................... 46

Maskell, Jack ............................................................................................. 34

McPhie, Neil A.G., chairman, Merit Systems Protection Board; and Anthony Guglielmi, Director of Congressional and Public Affairs, U.S.

Office of Special Counsel .............................................................................. 13

Guglielmi, Anthony ................................................................................... 20

McPhie, Neil A.G. ...................................................................................... 13

Stupak, Hon. Bart, a Representative in Congress from the State of Michigan .................................................................................................................. 5

Letters, statements, etc., submitted for the record by:

Bell, Sandra, general counsel, Ohio Civil Service Employees Association,

AFSCME Local 11 AFL–CIO, prepared statement of ................................ 48

Guglielmi, Anthony, Director of Congressional and Public Affairs, U.S.

Office of Special Counsel, prepared statement of ....................................... 22

Maskell, Jack, legislative attorney, American Law Division, Congressional Research Service, prepared statement of ......................................... 37

McPhie, Neil A.G., chairman, Merit Systems Protection Board, prepared

statement of ................................................................................................... 16

Stupak, Hon. Bart, a Representative in Congress from the State of Michigan, prepared statement of .......................................................................... 8

(1)

H.R. 4272, AN ACT TO AMEND CHAPTER 15 OF

TITLE 5, UNITED STATES CODE, TO PROVIDE FOR AN ADDITIONAL, LIMITED EXCEPTION TO THE PROVISION PROHIBITING A

STATE OR LOCAL OFFICER OR EMPLOYEE

FROM BEING A CANDIDATE FOR ELECTIVE

OFFICE

THURSDAY, SEPTEMBER 11, 2008

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON FEDERAL WORKFORCE, POSTAL

SERVICE, AND THE DISTRICT OF COLUMBIA,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 2:03 p.m., in room

2154, Rayburn House Office Building, Hon. Danny K. Davis (chairman of the subcommittee) presiding.

Present: Representatives Davis, Norton, Cummings, Kucinich,

and Marchant.

Also present: Representative Stupak.

Staff present: Lori Hayman, counsel; William Miles, professional

staff member; and Marcus A. Williams, clerk.

Mr. DAVIS. The subcommittee will come to order.

I welcome Ranking Member Marchant, members of the subcommittee, hearing witnesses, and all those in attendance to the

Subcommittee on Federal Workforce, Postal Service, and the District of Columbia’s legislative hearing on H.R. 4272, an act to

amend the Hatch Act to provide for an additional, limited exception

to the provision prohibiting a State or local officer or employee

from being a candidate for elected office.

[The text of H.R. 4272 follows:]

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Mr. DAVIS. The Chair, ranking member and subcommittee members will each have 5 minutes to make opening statements. And all

Members will have 3 days to submit statements for the record.

Hearing no objection, so is the order.

I will begin. The subcommittee today convenes to discuss H.R.

4272, a measure introduced by our colleague, Representative Bart

Stupak of Michigan, to provide certain State and local officers and

employees an exemption to the Hatch Act provision prohibiting

them from being a candidate for office in a partisan election.

While today’s hearing is narrowly focused on the Hatch Act and

its impact on State and local government employees, the larger

question at hand is, to what extent should citizens be restricted

from pursuing elected public office for the purpose of promoting efficient and effective governance?

On this, the 7th anniversary of the attacks on 9/11, let us remember those that lost their lives, as well as the rights and freedoms that we as Americans hold so dear. Like the right to vote,

the right to be a candidate for an elected office is also fundamental

to our unique democratic republic. Yet the Hatch Act attempts to

balance this right with concerns over the potentially negative influence of political activity in the administration of general government operations or programs.

Consequently, for decades, most Federal executive branch employees have been subjected to a number of restrictions and rules

that details when, where, how and who can participate in political

activity or partisan elections. Many of these same restrictions apply

to certain State and local employees, particularly those employees

of offices whose principal job functions are supported fully or in

part by Federal grants or loans.

Although nothing in current statute prohibits State and local employees from running for any elected office if he or she runs as a

nonpartisan candidate, we continue to witness a slew of policy challenges, unintended consequences and questions resulting from this

specific Hatch Act provision.

This leads us to the subject of today’s legislative hearing, which

is an examination of the impact that the prohibition on pursuing

elective office has on less densely populated areas, the exact issue

H.R. 4272 seeks to address. It is my hope that today’s hearing will

allow us the opportunity to further explore some of these matters.

And I would like to thank today’s witnesses for joining us in this

afternoon, and I look forward to their testimony.

I would like to yield now to the ranking member, Mr. Marchant,

for any opening comments that he might have.

Mr. MARCHANT. Thank you, Mr. Chairman. Thank you for having

this hearing today.

The Hatch Act of 1939 is a Federal law whose main provision is

to prohibit Federal employees there engaging in partisan political

activity. It applies by extension to certain employees of State and

local governments whose positions are primarily paid for by Federal funds. However, there are many individuals, such as hospital

employees who deal with Medicare and Medicaid, who cannot run

for public office because their business receives Federal dollars.

The original intent and purpose of the Hatch Act was to keep

partisan politics out of government work. But just because a person

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may indirectly receive Federal funds does not mean that they have

control over those funds or that their government work can actually be influenced by partisan politics.

This becomes even more complicated when the case of a town or

county sheriff is considered. Law enforcement is a major recipient

of Federal funds, so what does it mean for a deputy who wishes

to run for sheriff, which is a public position?

Additionally, many public positions at the local pay level either

pay very little or nothing at all, certainly not enough for a person

to quit their day job in order to serve the position.

As a result, the Hatch Act, in its current iteration, severely limits which residents can be elected to serve in local public office.

H.R. 4272 applies this legislation to cities with less than 100,000

residents. I look forward to hearing from the witnesses about their

thoughts on applying this bill to cities with less than 100,000 or

perhaps there may be a better way of accomplishing the same goal

by using a population as a deterrent.

Any possible changes to the Hatch Act should be conducted in a

very judicious matter and after careful consideration by this subcommittee.

I appreciate the work of Mr. Stupak on this issue. I look forward

to hearing from him and the witnesses today. Thank you.

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

And now we will actually move to our first witness, who does not

need to be sworn in because he is a Member of Congress and has

been sworn in when he took his oath of office.

Our witness is the Honorable Bart Stupak, who represents

Michigan’s First Congressional District, which is geographically

one of the largest districts in the country. Congressman Stupak is

a member of the House Energy and Commerce Committee and

serves as chairman of the Oversight and Investigations Subcommittee.

Prior to coming to Congress, Mr. Stupak was a police officer for

12 years, which led him to create and chair the Congressional Law

Enforcement Caucus, a bipartisan organization of more than 100

House Members, which provides the Nation’s law enforcement community with opportunities to participate in the legislative process.

Representative Stupak, we thank you so much for being with us,

and we are delighted that you have come to share and testify on

your legislation this afternoon. The floor is yours.

STATEMENT OF HON. BART STUPAK, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF MICHIGAN

Mr. STUPAK. Thank you, Mr. Chairman, for holding this hearing;

Mr. Marchant, for being here and conducting this hearing.

I ask that my full statement be made part of the record, along

with the list of examples I have submitted, attached to my testimony, of members of my district, my constituents who have been

affected adversely by the Hatch Act; and also a correspondence

from Mr. William D. Schneider, who was also affected but he actually wrote a letter that he wished to be a part of the congressional

record. So, without objection, I would ask that be made part of the

record.

6

You both summarized what we are trying to accomplish here

with this. My district, as the chairman says, is one of the largest

districts in the Nation. I have some counties which have very large

land mass but very few people, like 10,000 people. The biggest employer in many of my 31 counties that I represent is a hospital, the

local hospital.

And if you are an employee of that hospital, the literal reading

of the Hatch Act—because most of our offices in Michigan is partisan, from county commissioners, city commissions, drain commissioners. It is always a partisan office. Even judges, in some areas,

while not technically partisan, are nominated by the parties; therefore, they are considered partisan. Even though you don’t say Democrat or Republican behind it, or independent, the party nominates

you.

So what we have found in the last 3 years, if someone doesn’t

think you should be on the county board of commissioners, they

raise the Hatch Act if you work at the hospital, because the hospital receives Federal funding—Medicare reimbursements, Medicaid, sometimes direct grants and appropriations—and people are

disqualified.

The sheriff—we have had at least three or four sheriff’s candidates. Maybe the sergeant was going to challenge the incumbent

sheriff. Right away they used the Hatch Act, because they received

Federal money for enforcement of the seat belt law, enforcement of

minor in possession to enforce alcohol laws for minors. And these

people were considered disqualified underneath the Hatch Act.

We had one city go so far as to say, fine, during this election year

of 2008, we will not accept any Federal money even though the

purpose is to crack down on underage drinking, speeding, seat belt

use; we are just not going to accept it. They had $594. I mean, that

was the extent of it. It is not, like, huge sums of money. But because the person was a supervisor who supervised a program, they

could not run for office.

It is a constant problem, especially in small, rural areas. It is

hard to find people to fulfill a position like county commissioner or

city council because of all the headaches you put up with. Everybody in the town knows you, and if something goes wrong, your

street isn’t plowed in the wintertime, your phone is ringing constantly. And so it is hard to find good, qualified people who are

willing to do it. And then when you suddenly raise the Hatch Act,

that somehow casts negative aspersions, like you are violating the

Federal law, people have resigned, people have not accepted appointments. It has been used more as a political weapon as to the

true intent and spirit of the law.

So the only suggestion I could come up with was counties less

than 100,000, that the Hatch Act not apply. I am open to any suggestion to try to resolve this.

I think the literal interpretation of the law has been carried to

extremes, where people who are an employee of an agency that

may receive Federal funds, they are disqualified from being in a

partisan office. And according to our constitution in Michigan, just

about every office is partisan. It really disqualifies a lot of people

who have good intentions, public service at the heart of what they

7

are trying to do. But it is being used as a political weapon by both

parties, and no one is immune from this one.

So I am open to suggestions. I wish we could move this legislation. We have already had the primary season; it is probably too

late for this year. But next year, 2009, our city elections, which are

partisan—and I am going to be facing this same issue again next

year in 2009.

So anything we can do to move this process along to, you know,

protect the intent and spirit of the Hatch Act but not disqualify

qualified people because their agency may receive some Federal

money, I am open to suggestions.

And I would extend my discussion and my testimony here. I am

happy to answer any questions you may have.

[The prepared statement of Hon. Bart Stupak follows:]

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Mr. DAVIS. Thank you very much, Representative Stupak. I have

only got a couple of questions. And I thank you for your testimony

and for your leadership.

I would like to ask if you would like to join the panel once we

have finished with questioning and participate in the hearing.

Mr. STUPAK. I would be happy to.

Mr. DAVIS. Then, at that rate, I would like to ask unanimous

consent that Representative Stupak be allowed to join us and participate.

Mr. MARCHANT. Yes.

Mr. DAVIS. Hearing no objection, we would be delighted to have

you.

The other question that I have is your bill creates a 100,000 population threshold level for exemption from the Hatch Act that prohibits State and local employees from running for office. Is there

a particular reason for the 100,000 threshold?

Mr. STUPAK. I have half the State, geographically. None of my

counties—I think the biggest county is 70,000. So I could take it

all into my whole district in consideration. So it would be at least

resolved throughout my district. That is the only reason I put

100,000.

Like I said, I am open to suggestions, whatever ideas you have.

I don’t want to necessarily put an arbitrary number, and if your

county goes over so, I mean, you have the same problems. But I

am open to suggestions. That is how I came up with it.

Mr. DAVIS. One of the reasons I think I asked the question is

that there are jurisdictions that, for example, in my State where

individuals seek to run for the State legislature—people can run for

the city council, because our city council elections are nonpartisan.

But if they run for the legislature and happen to work for the State

or any place where Federal funds are being used to fund a part of

their salary, then, of course, technically they cannot run. And some

of those districts may have a bit more than 100,000 population, and

that was my rationale for asking the question.

Mr. STUPAK. I agree. And if there is some way we could tighten

up this language—before I ran for State office, State House of Representatives, our law firm represented the city in litigation and

also some other matters in which Federal money came in. So, to

avoid that issue, I resigned from the law firm to run for public office. Now, I had the ability to do that. Not every candidate has the

ability to do that.

Did I have any control over that Federal money? No. Did I direct

the Federal money? Did I do anything like this? Was I the grantwriter? No. I was a lawyer who represented the city in legal matters, and therefore I would have been disqualified underneath the

Hatch Act to even seek the nomination of my party because of this.

It would have been used as a political tool against me.

So I am open to any suggestion you have. I don’t know if it is

tightening the language or what.

But for a person who works at the hospital, because the hospital

receives Medicare and Medicaid money, to be disqualified, as in

this person who was appointed by the county board of commissioners upon the death of a commissioner in Schoolcraft County,

which is a county of maybe 30,000, and then the opponents had

13

him disqualified and basically publicly smear him for violating the

law, the trust, because he worked at the hospital as a social worker. He had no control of the budget, no control of the money. He

was paid by Schoolcraft. He had nothing to do with Federal money

coming in, other than Federal money flowed into the program he

administered for Medicaid people, people on Medicaid.

That is what I am trying to get at. Any suggestions you have,

I am open to suggestions.

Mr. DAVIS. Thank you very much.

Mr. Marchant, do you have any questions for Representative Stupak?

Mr. MARCHANT. No, I don’t. I look forward to the panel. Thank

you.

Mr. DAVIS. Then thank you very much. And if you care to join

us, please do so.

We will then proceed to our next witness.

And our next witness is Neil A.G. McPhie, who is chairman of

the Merit Systems Protection Board, which is an independent

quasi-judicial agency established to protect Federal merit systems

against partisan political and other prohibited personnel practices

and to ensure adequate protection for employees against abuses by

agency management.

Prior to serving in this capacity, Chairman McPhie worked as

the executive director of the Virginia Department of Employment

Dispute Resolution.

We also have Mr. Anthony Guglielmi. He is the director of congressional and public affairs at the U.S. Office of Special Counsel,

an independent Federal investigative and prosecutorial agency. The

OSC protects Federal employees and applicants from prohibited

personnel practices.

Before being appointed to this position, Mr. Guglielmi served as

the deputy director and chief of staff for the Armed Forces Foundation and director of communication for the New York State Senate

and Connecticut Board of Parole.

If you gentlemen would stand and raise your right hands to be

sworn in, as it is the policy of this committee to swear in all witnesses.

[Witnesses sworn.]

Mr. DAVIS. The record will show that the witnesses answered in

the affirmative.

We thank you all very much for coming and for being here.

And we will begin, Chairman McPhie, with you.

STATEMENTS OF NEIL A.G. MCPHIE, CHAIRMAN, MERIT SYSTEMS PROTECTION BOARD; AND ANTHONY GUGLIELMI, DIRECTOR OF CONGRESSIONAL AND PUBLIC AFFAIRS, U.S. OFFICE OF SPECIAL COUNSEL

STATEMENT OF NEIL MCPHIE

Mr. MCPHIE. Thank you, Chairman Davis and Ranking Member

Marchant, for the opportunity to come before you and share information on the role of the MSPB in enforcing the Hatch Act.

I have been asked to address three areas: first, the MSPB views

on the bill itself, H.R. 4272; to the extent of MSPB’s Hatch Act case

14

law; and the nature of the decisions rendered in cases involving

State and local defendants.

Mr. Chairman, because the Board is a quasi-judicial agency and

we hear these Hatch Act cases, we can take no position on the merits of the bill. Our view is whatever you pass, we must adjudicate.

Moreover, H.R. 4272 will have minimal impact on the Board’s

caseload. Hatch Act cases involving State or local government employees represent less than 1 percent of MSPB’s overall caseload.

My testimony, therefore, will focus more on the MSPB’s procedures for adjudicating these cases and the extent of a Hatch Act

caseload with a summary of the outcomes of the cases that we have

had.

MSPB adjudicates cases on the act when the special counsel files

a complaint seeking disciplinary action for an alleged violation of

the act. That complaint is heard by an administrative law judge,

whose services are provided to the Board under a special interagency agreement with the NLRB.

Generally, hearings are open to the public, and the procedures

applicable to MSPB appellate cases also apply to Hatch Act cases.

The Board does not have authority to consider a complaint alleging

a violation of the act by an individual who is a Presidential appointee with Senate confirmation. The Board’s decision that a State

or local agency employee violated the Hatch Act is reviewable by

an appropriate U.S. district court.

If the ALJ or the Board, on a petition for review, determines that

an employee of a State or local agency whose principal employment

is in connection with an activity financed in whole or in part by

Federal funds has violated the act, the outcome, as mandated by

the act, is the penalty of removal or the determination that no penalty is warranted. There is no in-between ground.

In an action where the determination of removal is warranted,

the ALJ or the Board on review will notify the employing agency

and the employee that the employee must be removed and not reappointed within 18 months of the date of the decision. If the State

or local agency fails to comply with such an order or reinstates the

employee within 18 months of the removal, the ALJ or the Board

may order the Federal entity providing funding to the agency to

withhold funds from the agency. The amount to be withheld may

be the equivalent of 2 years of pay for the subject employee.

Now, in terms of the Hatch Act cases, MSPB receives approximately 8,400 appeals each year. Its Hatch Act caseload is a small

percentage of those appeals. From January 2002 to July 31, 2008,

the Office of Special Counsel brought 41 Hatch Act cases before the

Board. Of that total, 23 cases involved State or local employees.

The most frequent types of Hatch Act violations that were committed by State or local agency employees included running as a

candidate in a partisan election and using official authority to influence the outcome of such an election. Final disposition in these

cases include settlement of eight cases, a finding that no Hatch Act

violation occurred in one case, dismissal of two cases, and removal

of nine employees. One employee retired prior to completion of the

case, and two cases are currently pending.

As the data shows, the Hatch Act case is a very small part of

the Board’s caseload. But regardless, the disposition of these cases

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are significant to the Board’s statutory mission of ensuring a meritbased Federal civil service system. As a result, the Board tries to

adjudicate these cases promptly and efficiently and in a manner

that comports with the congressional intent underlying the act.

I remain open to any questions the committee may have.

[The prepared statement of Mr. McPhie follows:]

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

And we will proceed now to Mr.—let me make sure that I am

pronouncing your name correctly.

Mr. GUGLIELMI. It is pronounced ‘‘Smith,’’ Mr. Chairman.

[Laughter.]

No. ‘‘Guglielmi.’’

Mr. DAVIS. Guglielmi.

STATEMENT OF ANTHONY GUGLIELMI

Mr. GUGLIELMI. Thank you, sir.

Chairman Davis, Ranking Member Marchant and members of

the committee, good afternoon, and thank you for the opportunity

to provide our perspectives on H.R. 4272.

At the outset, I would like to request that my written statement

also be included in the record.

My name is Anthony Guglielmi. I am the director of congressional and public affairs for the U.S. Office of Special Counsel, an

independent investigative and prosecutorial agency.

I am accompanied today by Ms. Ana Galindo-Marrone, chief of

our Hatch Act unit.

As each of you know, the Hatch Act restricts the political activity

of certain State and local government employees. Among other

things, the act prohibits such employees from being candidates in

partisan elections. H.R. 4272 would create an exception to this prohibition by allowing employees to run in partisan elections for local

office in counties or municipalities with populations of less than

100,000.

The Office of Special Counsel takes no position on H.R. 4272, but

offer a recommendation to address concerns underlying this bill.

First, OSC is concerned that this bill’s choice of 100,000 as the

population threshold for its candidacy exception will have a broader

effect than intended. According to Census Bureau estimates, 75

percent of Michigan counties have populations of less than 100,000.

Further, 99.6 percent of Michigan municipalities have populations

of less than 100,000, including the cities of Dearborn, Canton and

Kalamazoo. Thus, the bill impact extends beyond rural-area employees.

There will also be disparate outcomes for employees in cities that

are close in proximity and size. For example, in Michigan, the cities

of Dearborn and Livonia are less than 20 miles apart. Both are just

outside the city of Detroit. However, in 2002, Livonia had about

2,600 more people than Dearborn, pushing it above the 100,000

population cutoff. Thus, a Michigan State employee could have run

for public office in Dearborn but not in Livonia.

Also, in 2003, Livonia’s population dropped below 100,000. So an

employee would have been able to run for office in 1 year but not

the next.

It is also likely that this bill will increase OSC’s workload. In addition to determining whether a State or local employee has the duties in connection with federally funded programs, this bill would

require us to research the population of a locality where the employee wants to run. Because populations are ever-changing, our

research will have to remain current and continuous.

21

OSC’s greater concern with this bill is the potential confusion it

could create for Hatch Act-covered employees. While such employees would be permitted to run in partisan elections, they still

would be subject to the act’s other two prohibitions against coercion

and misuse of official authority. OSC believes that this may cause

confusion, resulting in violations of the act. We have seen this

occur with the candidacy exemption currently in place for individuals holding elective office. Many times, elected officials often believe they are exempt from all of the provisions of the act, even

though they remain subject to the other two important provisions,

thus potentially leading to more egregious Hatch Act violations.

For example, OSC filed a complaint with the Merit Systems Protection Board against an elected county official for multiple violations of the Hatch Act. The official, during job interviews, made it

clear that contributions to his political party were expected. He

also directed a subordinate to solicit other employees to attend

fundraisers, contribute to his party, and volunteer for his re-election campaign.

This example is an egregious one, but unfortunately it is not the

only one. OSC has seen an increase of allegations of both candidacy

and coercion. These cases involve employees in positions of authority who are running for office and are reported to be using their

positions to bolster their campaign credentials and/or coerce subordinates to support their campaign.

Partisan candidacy magnifies the risk that these activities will

intrude in the workplace. These cases are also difficult to investigate and prove, because witnesses are reluctant to cooperate for

fear of reprisal.

OSC understands and respects Representative Stupak’s concern

for employees in rural areas. However, Congress does not need to

amend the Hatch Act to address that concern. The Hatch Act does

not prohibit employees from being candidates in nonpartisan elections. Therefore, the Congressman’s concerns could be resolved at

the State and local level.

State and local governments are in the best position to recognize

whether a local community lacks eligible candidates. If they identify such a problem, they choose to resolve it by designating those

elections as nonpartisan. In fact, in our experience, we have found

that many localities have designated their elections nonpartisan.

Thus, the concerns underlying H.R. 4272 can be addressed without

compromising the integrity and neutrality of Federal programs.

Thank you very much for your attention. I would be happy to answer any questions.

[The prepared statement of Mr. Guglielmi follows:]

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Mr. DAVIS. Thank you very much.

And we will begin the questioning process.

Let me begin with you, Chairman McPhie. In your testimony,

you stated that, since January 2002, the Office of Special Counsel

has brought 41 Hatch Act cases before the MSPB, of which 23 involved State or local employees.

How many of the 23 cases involved State or local employees running in partisan elections? And are there any commonalities among

these cases? For example, are there any recurring arguments for

why employees continue to run for office despite Hatch Act restrictions?

Mr. MCPHIE. Mr. Chairman, I could answer that in a context of

some of the defenses offered by these employees when these cases

are brought. I asked that same question myself.

Although a particular defense is going to be necessitated by what

the circumstances are, to the extent one can generalize, these are

the kinds of defenses that seem to come about: ignorance as to the

existence of the Hatch Act; ignorance as to the political activities

prohibited by the Hatch Act—for instance, limitations on the use

of government e-mail by government employees to send partisan

political communications, there is uncertainty; lack of understanding as to whether an employee’s position is covered by the Hatch

Act, particularly with respect to certain employees of State and

local agencies who may not realize that their employment relates

to an activity which is financed in whole or in part by loans or

grants through this Federal Government.

Also, another common defense is that the penalty is too severe,

the penalty proposed by OSC is too severe.

I think I have answered the question. If I haven’t, I——

Mr. DAVIS. Well, let me ask you, in your statement, you also stated that Hatch Act cases involving State and local employees represent less than 1 percent of the MSPB’s overall caseload. Has this

percentage remained consistent since the last major reform of the

Hatch Act, which was in 1993?

Mr. MCPHIE. I cannot answer that with certainty, but I believe

that is true. I have given you 41 cases over 6 years. I am not aware

of any spike in these cases, certainly not during my tenure on the

Board.

Mr. DAVIS. Thank you very much.

Let me ask you, Mr. Guglielmi——

Mr. GUGLIELMI. Mr. Chairman, ‘‘Anthony’’ is fine.

Mr. DAVIS. Andy? All right.

In testimony that we are going to hear shortly, it has been

claimed that, in 1974, major changes to the Hatch Act were made

which eliminated most of the Federal restrictions on off-duty, freetime, political activities for State and local governments. In 1983

and 1987, surveys were conducted by House committees which

showed that these changes did not increase the incidence of reported violations or abuses.

Based on this history, why then do you feel that allowing State

and local employees to run for partisan office would cause current

employees to ignore and violate the other Hatch Act restrictions

that would remain in place?

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Mr. GUGLIELMI. Mr. Chairman, if it pleases the committee, I

would like to invite Ms. Galindo-Marrone, who is the chief of the

Hatch Act unit, to answer that question, as she has experience as

an attorney.

Mr. DAVIS. Please, by all means.

Ms. GALINDO-MARRONE. Good afternoon, Chairman Davis.

Although the restrictions of the Hatch Act were certainly loosened for State and local employees starting in 1974, three key prohibitions remained in place: the candidacy prohibition, as well as

the coercion and use of official authority prohibition.

And based on our experience, people are at their most partisan

when they are engaged in candidacy, when they are candidates and

they are running for office. So that, although the restrictions that

were loosened in 1974 allowed individuals to engage in political activity off-duty, with respect to the prohibition on candidacy, it is

very difficult for someone to remove their partisan hat when they

get to the workplace. When you are running for office, you are running for office 24/7.

Mr. DAVIS. Let me ask you, why would it be that an individual

would be more enthused about campaigning or running if they

were running for a partisan office or under a partisan banner than

they would if they were running under a nonpartisan banner?

Ms. GALINDO-MARRONE. Certainly. With respect to the Hatch

Act, the activity that it is intended to capture or interdict is partisan activity. So, although I understand your question in terms of

the enthusiasm that might be shared in both instances, the Hatch

Act only prohibits partisan activity.

Mr. DAVIS. I asked that because, based upon my experiences in

a town of course that is kind of well-known for its politics, our most

vociferous elections are actually the local city council elections, and

they are nonpartisan. I mean, people really get into who is going

to be their member of the city council, more than they do who is

going to be their Congressman or whatever. I mean, I don’t know

if that is the case in some other places, but certainly in the community where I live, I mean, that is pretty much the case.

Well, let me go to Mr. Marchant and provide him the opportunity

to ask questions.

Mr. MARCHANT. Well, first of all, I have been in Texas politics

for 28 years, and I don’t recall this ever being the subject of a challenge for an election. So this a new subject for me. I was a council

member, a mayor, State legislator, and then now in Congress. And

I never remember this being a substantive issue or the subject of

a challenge for a candidacy.

So I guess my question to the panel is, would this affect some

States much more than it would other States? Would any of the

States view this to be preemptive or something that we would be

overriding their State authority?

And the last question is, is the 100,000 number a number that

moves things one way or the other? I mean, if it were a million or

if it were 10,000—is that 100,000 number a meaningful number?

Or is it—I think Mr. Stupak identified it as just kind of a beginning place. So I would ask that question of either of the two or of

your counsel.

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Mr. GUGLIELMI. Congressman, I will answer the latter part of the

question. Definitely, I mean, it doesn’t matter the number, the impact on the Office of Special Counsel would be the same. We would

still have to rely on, you know, census data, and it would still apply

a greater burden, you know, than we are currently experiencing.

Mr. MARCHANT. OK.

Mr. GUGLIELMI. And then as far as the—I mean, I have no comment on how the States would perceive the legislation, sir.

Mr. MARCHANT. Would one State be affected more than another

State? Do these cases get tried in every State, or are there States

that are more active in their pursuit of Hatch cases?

Ms. GALINDO-MARRONE. It applies across the board, and we receive complaints from all 50 States. But it does seem to also be cyclical in nature. And what I mean by that, sometimes it may be

Michigan, other times it may be Ohio, Pennsylvania. Depending on

the election season, the Hatch Act sometimes reaches greater

awareness with the candidates and the citizenry than in other

times. So it is very active currently in Michigan.

Mr. MARCHANT. OK. And I have a followup question that——

Mr. MCPHIE. In terms of impact, let me put it to you this way.

The Board isn’t planning to ramp up any of its resources in anticipation of an increase in Hatch Act cases. I mean, the history

speaks for itself, so far as we are concerned. Forty-one cases over

6 years is, by any stretch of the imagination, a very small number.

I recall almost—I have been there since 2003, and I have seen very

few of these cases. There is no steady diet of these cases at all.

In terms of impact, 100,000, 200,000, I can’t begin to answer that

question. It is not something that we concern ourselves with. We

follow whatever the statute says. And if a case is brought by special counsel, then it proceeds on the merits in that case pursuant

to the statute. If the statute says 100,000, we take it from there.

If it says 200,000, we take it from there. It doesn’t matter to us.

Mr. MARCHANT. As I understand it, Representative Stupak’s bill

addresses basically the disqualification for election. Do you have

cases where there was no disqualification? Someone took office and

then someone pursued their removal or their prosecution as a result of having violated the Hatch Act, but no one brought it up, but

they are serving and——

Ms. GALINDO-MARRONE. We get a number of cases of what we

call in the office ‘‘past candidacies,’’ where, by the time the complaint is filed, the person has already won the office and is serving.

And in those cases, for the most part, we typically—if we find that

the person—we still have to investigate the case and make a determination. In those cases, we typically issue a warning letter. The

penalty does not allow for a disciplinary action that someone be removed from their elective office. So what would still be at issue is

their employment. And in some instances, the person is no longer

employed.

But even then, with past candidacies, our focus is on trying to

educate and advise the person for the future. We recognize how significant the penalty is, in terms of finding a Hatch Act violation.

So you will find that with a majority of the cases, we issue warning

letters. And only in those instances, I would say 99 percent of the

candidacy cases, whether Federal or State and local, are those

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cases where we actually warn the person that they were covered

by the Hatch Act and gave them an opportunity to come into compliance with the law. And it is in those cases where we typically

then seek disciplinary action if the person chose not to come into

compliance with the law.

Mr. MARCHANT. And they could come into compliance either by

resigning or——

Ms. GALINDO-MARRONE. Or withdrawing from the race, correct.

Mr. MARCHANT. So it is possible and probable that there are

many office-holders in office today that there was no complaint

filed and they are, in fact, in violation of the Hatch Act?

Ms. GALINDO-MARRONE. It is probable.

Mr. MARCHANT. And would probably receive warning letters if a

complaint was filed?

Ms. GALINDO-MARRONE. Correct.

Mr. MARCHANT. Well, thank you very much.

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

Mr. Stupak.

Mr. STUPAK. Well, thank you, Mr. Chairman. And thank you for

your courtesy.

Let me just say that Ms. Marrone and others have—we actually

did a video conference into my district because we had so many of

these when Delta County, Schoolcraft County and Marquette County had to try to resolve this. And unfortunately, the Hatch Act, the

way it is written, allows no leeway for these folks who are trying

to enforce the law.

For instance, I mentioned Ishpeming, the chief of police there, he

was given a warning letter that he was in violation because they

had three highway traffic safety grants, a total of $594 for his

whole department. He is the chief. He probably didn’t put in the

overtime, never got paid for it. But because his department received $594, he is disqualified underneath the Hatch Act to run for

sheriff.

Do you have any suggestions how we would do it other than the

100,000? Should it be a percentage? If your position is funded 50

percent or more by Federal funds or something like that?

I mean, we had the Delta County where the person was an employee of public transportation, where every year they received

Federal money for buses. He was disqualified because the public

buses were paid for by the Federal Government.

Do you have any suggestions how we can do it other than the

100,000? I mean, it sounds like the law doesn’t leave you any discretion. And these examples I bring out, to most of us it is not ignorance of the county board of commissioners when they appoint

someone or when someone runs for sheriff, because their department of 10 people might have received $594 or $59 per member of

the department, are suddenly disqualified because that $59 was

Federal money. It doesn’t make sense that you would apply the

Hatch Act like that to people.

Any suggestions from our witnesses on how else to do it?

Mr. GUGLIELMI. Congressman, your concerns are absolutely

valid. And, I mean, today we have prepared, you know, for this legislation. If it pleases the committee, I can confer with the special

counsel and possibly come up with some technical recommendaVerDate 11-MAY-2000 16:00 Apr 21, 2009 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6633 U:\DOCS\48496.TXT KATIE PsN: KATIE
32

tions to your office. You know, give us a chance to regroup and take

a look at everything and see if we can help you out. But at this

time, I don’t.

Mr. STUPAK. OK.

Mr. MCPHIE. Let me make one observation. And it kind of makes

this statute sort of unique in certain respects.

In terms of the penalties, the penalties are different for a Federal

employee who violates the act than for a State employee who violates the act. Frankly, I want to know why; I don’t know why. If

a Federal employee violates the act, they can be removed or suspended without pay for 30 days. If a State employee violates the

act, the only penalty by statute is removal, not suspension or anything of that type.

We have found no statement of the congressional intent on that

difference. But if we have a case that involves a State employee

and, in the end, by a preponderance of the evidence, it is proven

that employee violated the statute, then the only penalty is removal. There is no discretion.

Mr. STUPAK. If I may, Mr. Chairman, you had indicated the enthusiasm of local offices, having half the land size of Michigan in

my district. As I campaign in this election year, I look for the local

sheriff race, I look for the local county commission race, because

the enthusiasm and the voter turnout in these counties—and in

Michigan, a county commission race is partisan, it is by our State

constitution. That will increase the voter turnout. It is not the

President. It is not the U.S. Senate. It is not even their most beloved Congressman. It is those local sheriff races that generate the

enthusiasm at the local level, which increases the turnout.

And to have people disqualified because your department received $594 for three programs or averaged $200 per program is

just insane. We must fix this. And it is not just Michigan; it is

throughout this great Nation.

And thank you for your courtesy.

Mr. DAVIS. Well, let me come back—and according to Section

1501, chapter 15 of title 5, State or local officers or employees refer

to those individuals whose principal employment is support in

whole or in part by Federal loans or grants.

Could you explain what is meant by ‘‘in part?’’ In other words,

what percentage of Federal funds does an agency have to receive

in order for their employees to fall under the Hatch Act?

Ms. GALINDO-MARRONE. There is no precise percentage. But a

couple of points, if I may.

First, just because a State or local agency receives Federal grants

or loans does not mean that all the employees are covered by the

Hatch Act. It is only those employees at that agency that have duties in connection with the federally funded program.

And in terms, I think part of your question, in whole or in part,

so you may have a program that receives both State or county

funds as well as Federal funds. So that would be a situation where

you have a program that is funded with Federal grants in part. But

only the individuals that have duties in connection with that program would be covered by the act, not all the employees in that

agency.

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Mr. DAVIS. Are either of you aware of any instances where individuals have actually gone to a circuit court after having been

charged with violating the Hatch Act and win their case in the circuit court that there was no violation?

Ms. GALINDO-MARRONE. That I am aware of, in the last 10 years,

I am not aware of any case like that.

And in terms of jurisdiction, in order to get into a Federal court,

you first have to go through the Merit Systems Protection Board.

Mr. DAVIS. And so the Federal court is where they would have

to—I am trying to recall a case where a person who worked for the

State of Illinois decided to run for the State legislature, was forced

to quit her job, actually was terminated I guess, or had to withdraw from the ballot, but who chose not to withdraw and actually

ran. After the election was over, she sued, went to court, was restored to her position and received her back pay.

Ms. GALINDO-MARRONE. Several things. I believe that, possibly—

but I don’t want to misspeak, so it is something that, if you wish,

we can go back to the office and brief this issue—prior to the 1974

amendments, I believe that employees could go directly to Federal

district court, in terms of Hatch Act cases. So that is one point, but

I would want to take a look at that.

And it is also possible that the challenge may not have been

based on the Hatch Act. Or, for example, that the employer chose

to remove the individual on Hatch Act grounds, and that probably

the individual would have been able to successfully challenge, because it is only OSC that has exclusive authority to investigate and

bring a disciplinary action complaint. It wouldn’t be the employer

that would be able to remove the individual on Hatch Act grounds.

So there have been employees who have successfully challenged an

employer action based on those grounds.

Mr. DAVIS. I would appreciate it very much if you could check

into that for us, if you could.

Ms. GALINDO-MARRONE. Certainly.

Mr. DAVIS. And if you could also provide us with any Hatch Act

statistics in terms of cases heard and the adjudication of those——

Ms. GALINDO-MARRONE. OK.

Mr. DAVIS [continuing]. I would appreciate it.

Ms. GALINDO-MARRONE. And just for point of clarification, Merit

Systems Protection Board cases, or?

Mr. DAVIS. Actually both the Merit System Protection Board

cases as well as cases that have actually gone to the Federal district court.

Ms. GALINDO-MARRONE. OK, very good.

Mr. DAVIS. Thank you very much.

Mr. Marchant, do you have any other questions?

If not, then thank you both. Thank you all.

We will now proceed to our third panel. And the witnesses for

that panel: Mr. Jack Maskell, who is a legislative attorney with the

American Law Division of the Library of Congress’s Congressional

Research Service. Mr. Maskell has been providing legal advice,

analysis and assistance to Members of Congress, congressional

committees and staff since 1973 on legislation and legislative matters, such as governmental ethics laws, conflict-of-interest laws,

and the Federal Hatch Act.

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We also have Ms. Sandra Bell, who is the Ohio Civil Service Employees Association’s general counsel. OCSEA represents 36,000

State and other public workers and is an affiliate of the American

Federation of State, County and Municipal Employees. Prior to assuming this position, Ms. Bell served in various elective positions

within the Association, in addition to her role as general counsel.

Ms. Bell also holds the position of director of information technology for OCSEA.

We want to thank both of you for coming and being with us. And

if you would stand and raise your right hands to be sworn in.

[Witnesses sworn.]

Mr. DAVIS. The record will show that the witnesses answered in

the affirmative.

If you would summarize your testimony for us in 5 minutes. And

about this time of day, we don’t worry too much about the lights,

but the green light just means you have all the time. The yellow

one indicates that you are down to 1 minute. And we generally try

to end with the red one.

So thank you very much.

And we will begin with you, Mr. Maskell.

STATEMENTS OF JACK MASKELL, LEGISLATIVE ATTORNEY,

AMERICAN LAW DIVISION, CONGRESSIONAL RESEARCH

SERVICE; AND SANDRA BELL, GENERAL COUNSEL, OHIO

CIVIL SERVICE EMPLOYEES ASSOCIATION, AFSCME LOCAL

11 AFL–CIO

STATEMENT OF JACK MASKELL

Mr. MASKELL. Thank you very much. I would like to thank the

chairman and the subcommittee for the invitation to testify this

afternoon.

I have submitted a more detailed written analysis to the subcommittee and will confine my comments here to just a few areas

of that analysis.

The main point I would like to make this afternoon is that the

Hatch Act, that many would agree has done its job in the past, is

not carved in stone and it is not necessarily sacrosanct. It was a

legislative response crafted by Congress to facts on the ground as

they existed in 1939 and 1940; that is, specific abuses and allegations of political coercion and the doling out of Federal funds in

work through the WPA.

The Hatch Act restrictions on both Federal employees as well as

on State and local government employees have undergone substantial amendments, modifications and revisions over the years to accommodate the changing conditions and changing realities of Federal and public employment.

One of the earliest changes, in 1940, was to exempt Federal employees in certainly localities in which there live numerous Federal

workers from the restrictions on running as an independent in a

partisan election. This was done in the interest of allowing a large

enough pool of civic-minded persons who would be interested in

elected public service in these communities. This exception exists

today for Federal employees in more than 70 localities in the

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Washington, DC, area and beyond, including Fairfax County, VA,

which now has more than a million residents.

In 1942, Congress again changed the law to enact a specific exemption to the Hatch Act for all government employees who were

employed by a school or research institution. The exemption for

school teachers and employees in State and local governments remains as part of the current law today. It was intended to assure

that teachers have the right to freely discuss and be involved in political subjects and matters so that teachers might be examples for

youth of participatory citizenship.

In 1974, major changes were made to the Hatch Act as it applied

to State and local government employees, eliminating most of the

Federal restrictions on off-duty, free-time politics. After these

changes were made in the Federal laws, as the chairman pointed

out earlier, several States then changed their positions on political

activities of State employees, allowing for more voluntary, off-duty

activities.

In 1983 and in 1987, surveys of State enforcement officials by

committees of the House indicated that such changes in their

States did not increase incidence of reported violations or abuses,

but did, in fact, increase the participation in the political process

and civic affairs by governmental employees.

In 1993, Hatch Act changes for Federal employees were made to

reflect the realities and changes in the modern Federal work force

and freed up most employees to engage in free-time political activities.

Remember, the Hatch Act restrictions as originally enacted in

1939 were seen, in many respects, as protections of government

employees from coercion, from higher-level politically appointed supervisors to engage in political activities or to make contributions.

With the advent of the modern, more independent merit-based civil

service and the adoption of increased statutory and regulatory protections of Federal employees against improper coercion and retaliation, the need for a broad ban on all voluntary activities in politics as a means to protect employees was seen as less necessary.

The conditions of Federal employment have changed dramatically

since the first restrictions on political activities were passed.

As one example, the percentage of merit system civil service employees grew from 10 percent of the Federal work force at the time

of the passage of the Pendleton Civil Service Act in 1883 to 32 percent of the Federal work force at the time of the passage of the

Hatch Act in 1939 to the more recent figure of more than 80 percent of all Federal workers being under merit system. The 1993

Hatch Act amendments addressed these new realities.

With regard to running for office, in the legislation at hand it

might be argued that in many ways the Hatch Act is more restrictive for State and local employees than for Federal employees regarding candidacy. Although both sets of employees may run in

nonpartisan elections where no candidates have a major party

label, the local community exemption for Federal employees allowing them to run as independents and even partisan elections in certain communities applies only to Federal workers. There is no similar exemption for State and local government employees in their

local communities.

36

Second, Federal employees who work only part time or intermittently are covered by the Hatch Act only when on duty and therefore can be partisan candidates in a partisan election off of duty

time. State and local employees, however, have no such part-time

exemption and are covered as long as their part-time government

position is their, ‘‘principal employment.’’ If Congress finds that the

pool of eligible civic minded persons to run for local office in rural

and smaller communities has been adversely affected because of

the extended reach of Hatch Act and the increased pervasiveness

of Federal funding of local activities, then Congress may certainly

address the issue legislatively as it has done in the past.

It should be noted that even if the Federal Hatch Act is changed

for State and local employees such employees will still be subject

to State laws, local ordinances, State and local personnel regulations and executive orders regarding permissible outside political

activities and workplace conduct.

The Supreme Court has found that the Federal Hatch Act does

not preempt and supersede State and local laws and ordinances on

State and local employee conduct. The legislation, H.R. 4272, providing exemption for all employees and communities in local governmental units with a population of under 100,000 would allow

them to run for local offices and partisan elections.

If you find that a change in law is called for but fear that the

legislation might create too broad an exemption, it may be narrowed in several ways. I will give you just a few suggestions. Some

suggestions might include limiting the exemption to those employees who do not actually administer, disburse or distribute Federal

funds. Another would be to require an employee to run as an independent as opposed to representing a political party in a partisan

election similar to the exemption for Federal employees in exempted localities.

Another position may be enacted expressly addressing workplace

politicking by expressly prohibiting in Federal law such conduct

while on the job, although I have to tell you most States prohibit

that already in their State codes.

And finally, the issue of soliciting political contributions may be

addressed to allow such employees to solicit from the general public

so their candidacies might be viable but prohibiting noncoercive,

knowing solicitation of colleagues, which is also prohibited in a lot

of State codes as well.

Thank you very much.

[The prepared statement of Mr. Maskell follows:]

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Mr. DAVIS. Thank you very much, and we will proceed to Ms.

Bell.

STATEMENT OF SANDRA BELL

Ms. BELL. Good afternoon, Chairman Davis, Member Marchant.

My name is Sandra Bell. I would like to thank you for this opportunity to address the subcommittee. A written copy of my testimony has been submitted to the committee, and I request that it

be admitted into the record.

Speaking on behalf of AFSCME and OCSEA, we submit that the

Hatch Act is antiquated. We applaud Representative Bart Stupak

for introducing H.R. 4272. H.R. 4272 will begin to eliminate a prohibition that has unfairly denied public employees the rights and

privileges of full citizenship for 69 years. While we fully support

the bill, we would like to see its scope broadened.

The proposed population threshold is too low to provide relief to

the vast majority of State and local government employees, including those in my home State of Ohio. Although Ohio is governed by

its own little Hatch Act, the injustices suffered in Ohio are comparable to those across the country.

The Hatch Act, as interpreted by the individual agencies in Ohio,

has a chilling effect upon the ability of the ordinary citizen to engage in the political process. For example, Charlie Bakle, a highway maintenance worker for the Ohio Department of Transportation received a 10-day suspension for talking politics at work.

Debbie King, an enthusiastic worker for the Department of Job and

Family Services, received a 30-day unpaid suspension because she

volunteered to gather signatures for a candidate on her own time.

Had Charlie or Debbie been employees in agencies which did not

receive $1 of Federal funds, they would have been allowed to engage in the political process and maintain their job security.

AFSCME and OCSEA are actively working to repeal Hatch Act

prohibitions in order to give the Charlies and Debbies of the country a chance to fully participate in the democratic process regardless of where they work. The prohibition on parties and political activity has outlived its usefulness and should be repealed in its entirety.

Unlike in 1939, most States’ laws now require disclosure of campaign contributions and expenditures. Safeguards are in place to

protect the public from corruption and will remain in place if the

prohibitions are lifted. However, if a repeal is not achievable currently, incremental reform should be considered and we urge be included in H.R. 4272, and we do have some suggestions.

First, we suggest that the Hatch Act could be amended to limit

the act’s scope to those employees with discretionary authority over

use of Federal funds or associated policymaking. The prohibition

currently applies, with some narrow exceptions, to, and I quote,

any individual employed by a State or local agency whose principal

employment is in connection with an activity which is financed in

whole or in part by loans or grants made by the United States or

a Federal agency and who exercises some function in connection to

that activity. We think this definition is too broad and too far

reaching.

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Second, a threshold could be set for the amount of Federal funding that would trigger the Hatch Act. As it stands, the Hatch Act

applies to all State or local government employees employed by an

activity which is financed in whole or in part by Federal loans or

grants. A reasonable amendment could trigger the prohibition only

where 25 percent or more of an employee agency’s budget was composed of Federal funds.

Third, the Hatch Act currently applies to employees on an unpaid leave of absence. In order to run for partisan political office,

most States or local government employees must resign. Forced

resignation is harsh and unreasonable. While on unpaid leave, an

employee would not have access to nor receive Federal funds. Little

harm seems to exist if such an employee is permitted to run for office. For too long State and local employees have been treated like

second class citizens by virtue of Hatch Act prohibitions. Reform is

long overdue. AFSCME and OCSEA believe that the prohibition

against partisan candidacy should be repealed in its entirety. We

strongly support H.R. 4272, but ask that its population threshold

be increased at a minimum to maximize impact and to provide

some additional reforms.

I thank the subcommittee again for the opportunity to discuss

the Hatch Act and will be happy to answer any questions.

[The prepared statement of Ms. Bell follows:]

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Mr. DAVIS. Thank you very much, and I believe your testimony

triggered my memory, and I believe it was an AFSCME union employee that——

Ms. BELL. I wouldn’t doubt that.

Mr. DAVIS [continuing]. That brought the suit that I recall. But

thank you very much for your testimony.

Mr. Maskell, let me ask you, H.R. 4272 would allow State and

local employees in communities having a population under 100,000

to run for local partisan office. What would be the effect of allowing

State and local employees to run for local office in a partisan election today since the original intent of the Hatch Act, as I understand it, was to prevent corruption in local and State governments

on misuse of Federal funds, which would be considered pretty

much outdated today, I would think?

Mr. MASKELL. I agree with the testimony of Ms. Bell and I think

I suggested somewhat similar language. If they are controlling Federal funds and disbursing Federal funds, the issue of corruption

could arise and partisan political abuses could arise. But if they are

merely an employee whose employment is connected with the federally funded activity, there is almost, there is such little chance

for corruption that may be one way to parse the legislation, absolutely, and to allow most State and local employees to be freed up

to engage in that kind of outside activity outside of the job.

Mr. DAVIS. Would it appear or would it be fair to suggest that

the Hatch Act, as we know it, does in fact prevent individuals from

exercising part of their constitutional right as an American?

Mr. MASKELL. I don’t think there is any question that in many

instances Federal employees or State and local employees would

want to exercise certain first amendment rights that they are not

able to now. Now the courts have said that even though it does involve first amendment rights for Federal employees because of the

employer-employee relationship they can restrict these first amendment rights more than they can of people in the general population. And because of State and local governments, because of the

spending power of Congress, they could put limitations on it, but

absolutely there is no question that it impacts the first amendment

rights of these employees who are covered.

Mr. DAVIS. Ms. Bell, how do you respond to the testimony that

allowing these individuals to run for office would create a number

of problems and difficulty relative to managing operations that

they may be a part of?

Ms. BELL. I disagree. Most of the employees represented by

AFSCME are not in the position of managing or distributing Federal funds in their normal day-to-day operations. These are the line

workers. These are the transportation workers that you see on the

roads. These are the people that never meet the public. These are

the ones in the back rooms who are entering data, who are clerking. These are the corrections officers who are managing the prisons and don’t have any contact with the general public.

In 1939, a civil service job might have been the highest job available at that time. Training could be implemented in order to assure

that when you take a civil service job, you are made aware of the

possible prohibitions of the Hatch Act. You don’t take a job thinking that one of these days, 10 years from now, I want to run for

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Governor or the State legislature. You take that type of job because

you are interested in either nowadays having a job or being a public servant. So I don’t think it is going to cause that big of a problem.

Mr. DAVIS. Mr. Maskell, you were about to comment.

Mr. MASKELL. I’m not sure what the effect would be. My guess

is based on other reform and loosening up of the Hatch Act that

there will not be significant abuses and coercion involved. Almost

every State has their own standards of conduct, conflict of interest,

ethics, and kind of Hatch Act provisions that strictly regulate what

you can do and can’t do on the job and very much use similar language of the Federal Hatch Act for Federal employees, as well are

not allowed to use their official authority or influence to affect an

election. Those still all are in effect. So I’m not sure what it would

be. And that is something that you all have to balance that, you

know, you would like to free them up and see if you can minimize

the potential or the risk for that happening.

Mr. DAVIS. Thank you both very much.

Ms. Norton.

Ms. NORTON. Mr. Chairman, I regret that another hearing kept

me from being here because I think this is a very important issue,

and I certainly agree that first amendment rights are significantly

curtailed. Generally one would want to inquire constitutionally in

return for what? When one weighs equities on each side, is the equity toward so-called corruption so great as to warrant denial of

the right to run for public office? I would like to think a lot more

about this.

You know, when it comes to line workers running for things like

the school board, it’s pretty hard to think of why, if anything,

would want to have to encourage people to do so. Where there is

a State Hatch Act, where I presume these workers would still be

covered, one begins to wonder what is the particular function of the

Federal Hatch Act in those cases.

Mr. Maskell, perhaps you could tell us, is there some redundancy

there? If there is a State Hatch act already and if these employees

would be covered under that State Hatch Act, what special or

unique function does the Federal Hatch Act play such that piling

it on top either gets us anything that the State Hatch Act won’t

get us or that otherwise makes us understand that it’s necessary

to have two laws affecting these citizens?

Mr. MASKELL. Well, you are absolutely right. There are

redundancies and a number of the States have somewhat similar

provisions that the Federal law has. But again there are a lot of

States that have reformed their so-called little Hatch Acts and

have freed up their own employees quite a bit, so that Michigan,

for instance, does not prohibit their State employees running for

election in a partisan election. So the Hatch Act isn’t redundant because the Federal law does restrict them if their job is in connection with the federally funded activity.

So in some cases there are redundancies and in other cases there

aren’t. It was passed originally as a protection concerning the disbursement and utilization of Federal funds, and I think we can all

agree it has kind of moved away from that. I don’t know if it’s an

unintended consequence, but it may be unanticipated, something

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that was not anticipated, at least to the extent it is now. Because

of the pervasiveness of Federal funding of local activities it has

reached a lot of activities at the State and local level that it never

reached and wouldn’t reach in 1940.

Ms. NORTON. Would an earmark reach that employee?

Mr. MASKELL. Sure. It could. If it’s a State or local agency, a governmental agency, sure.

Ms. NORTON. Yes, a State or local agency. Lobbying wouldn’t be

affected by this, would it?

Mr. MASKELL. No. Lobbying isn’t involved. This is partisan political activity, meaning relating to a political party. Most lobbying activities are done in nonpartisan—they are not associated with one

political party or another or the success or failure of a candidate,

and therefore they are generally not covered under the Hatch Act.

Ms. NORTON. Oh, my goodness, I think that is where you get into

some difficulties. One party may be very much for raising taxes

and another party may not be. The Federal Government’s notion

that it’s either all or nothing comes because it sometimes doesn’t

put the time into thinking through how to grant as much as possible while affording the appropriate protections.

I would be—and this really comes out of a lot of the work we do

in the Congress and I don’t know if it would be applicable—I’m always fearful of appearances, because much of what we frankly associate with unethical or corrupt activity often doesn’t have to do

with action that someone takes but with creating the impression of

authority that you really don’t have. There might be a great temptation to do so if your agency is funded. In my judgment, it might

take some reworking of the regulations. I would err on the side of

granting constitutional rights always, but I have to—and by the

way, I am particularly mindful of people who work in communities

such as Mr. Stupak’s legislation pertains to. That is all there is, is

government employment. It does seem to me that kind of blanket

denial, I don’t know who can run for office? Rich people from out

of town? I’m not sure. It does seem to me that something has to

be done. If we were to spread this it would put a real burden on

the State Hatch Act, but one I’m prepared to believe the States are

prepared to accept. And to the extent that this is an exception,

then it does seem to me we would have to spell out what it means

because of the appearance, for example, that someone, I mean the

school board. Well, you know, that is a common and very ordinary

kind of very important activity, but I must say, the schools get

funds. So you know one begins to think like a lawyer and then this

stuff gets all messed up again. Because surely the school board has

something to do with that.

Many jurisdictions now have nonpartisan elections. I’m not sure

what that means in terms of this legislation or what we’re after,

but they don’t run under any particular party. I don’t know if that

has been discussed before I came here. Are those people already exempt?

Mr. MASKELL. If they’re running in a nonpartisan election and no

candidate——

Ms. NORTON. You can run for mayor in a nonpartisan election.

Mr. MASKELL. Right, then they’re allowed to run. But what

you’re saying is absolutely correct because what we’re seeing, at

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least in the communities that I know of in Northern Virginia, the

candidates get endorsed by political parties, the political parties

send out their literature saying Joe Smith, he is the Democratic

candidate or he is the Republican candidate and all and even

though it’s, quote, nonpartisan, you know who the parties are supporting in any event and so you are right, it loses——

Ms. NORTON. What is the point in the nonpartisan elections? You

are absolutely right. Nobody really runs nonpartisan, so do you

know what the original reform was designed to do? Because if it

was to break people away from parties it has been a complete failure.

Ms. BELL. I believe the original intent was to allow interested

people to run on their own individual platforms, to run on the I’m

a parent, that I’m a member of this community and that I am involved in, especially, like school boards and smaller commissions.

But as the political machine has grown, those type of positions

have become training grounds for higher positions, and therefore

the parties and even the independents and the third parties have

learned that we have to pay attention as they come up through the

ranks in order to prepare for future Republicans and future Democrats within our entire system.

Ms. NORTON. Mr. Maskell, how high up does a nonpartisan election in Virginia go?

Mr. MASKELL. Well, the Fairfax County School Board is nonpartisan, but the county supervisor, the county office is partisan.

Arlington has their own parties. They have that Arlington Better

Government Party. They have nonmajor parties that they have labels for their council, so it really depends on the jurisdiction and

locality. But of course you can run as an independent in most of

these communities even if it’s a partisan election if you are a Federal employee, but not if you are a State or local government employee. You are not allowed to.

Ms. BELL. And we have some township trustees that are nonpartisan.

Ms. NORTON. I think, Mr. Chairman, every so often the Hatch

Act gets a going over. I think in light of this proposal I suggest that

the time may be at hand again. I also suggest, Mr. Chairman, that

if you want to see something really ridiculous all District government comes under the Federal Hatch Act. Shortly after coming into

Congress I got it freed at last, except it didn’t last into the Senate.

And I have to tell you, the kind of confusion, I would look to see

something that makes it easy for the average person to understand. The kind of confusion that you have, even when you speak

of nonpartisan elections, we have ANC commissioners. Actually

that is something that comes from an election that came from the

original Home Rule Act. It was the idea of some member who sat,

who brought in from his own jurisdiction was nonpartisan. Well,

the office of the counsel, or whatever it’s called, has on some occasions given the opinion that these people were, that you could hold

a Federal or local job and run for this nonpartisan position. Then

on the other hand—and understand, they are applying only Federal

law because D.C. doesn’t have its own law. And then on the other

hand, others have questioned it. So what you have now is probably

at least half a dozen members of the D.C. City Council who had

55

been ANC commissioners and ran as ANC commissioners. I can

name one off the top of my head, Adrian Fenty, who then ran for

the council.

So the confusion leads people to hold up their hands and say,

fine, sue me. So, I am asking, Mr. Chairman, I understand it may

have been noted that D.C. be taken all together out of the Federal

Hatch Act, at least you have a State Hatch Act in the States.

Whether or not this dual constriction is necessary I think is something that ought to be investigated.

Mr. DAVIS. Thank you.

Mr. Stupak.

Mr. STUPAK. Thank you, Mr. Chairman. One question if I may

Mr. Maskell. I’m looking at the CRS report, page 5, where they

talk about provisions of State and local law. So that the suggestions that Ms. Bell made, let’s say, like limited to discretion of Federal money or policy or the 25 percent threshold of funds from Federal Government, that won’t work because the Federal law would

still supersede the State law because the suggestions that Ms. Bell

made would be less restrictive than Federal law, right?

Mr. MASKELL. Well, you would change the Federal—I think we’re

talking about changing the Federal laws as it applied to State——

Mr. STUPAK. Right, but Ohio could not enact what Ms. Bell suggested. They would still be in violation of the Federal Hatch Act.

Mr. MASKELL. Exactly.

Mr. STUPAK. Thank you, Mr. Chairman.

Mr. DAVIS. Thank you very much, and let me just ask, I’m trying

to discern the difference between running as a partisan and running as a nonpartisan. Have either of you noted any discernible differences?

Ms. BELL. Not in the enthusiasm level.

Mr. DAVIS. I think of some school board elections that I have, you

can’t get any more striking than some of those have been, and they

were all nonpartisan. And I think that it may very well be time to

rework the Hatch Act in terms of its intent. I am finding it difficult

to know what it really is designed to do.

Well, let me thank both of you for your testimony and for being

here with us. I want to thank you, Mr. Stupak, for being with us

this afternoon. If there are no further questions, then this hearing

is adjourned.

[Whereupon, at 3:30 p.m., the committee was adjourned.]

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