Election-gate: A look at the Hatch Act

October 7, 2010

Will the Fitial Administration's CNMI government-sponsored campaign activities for Covenant Party candidate, Joseph Camacho, cost the participating CNMI agencies and departments the loss of federal funding?  It could.  Hatch Act violation complaints have been filed against AG Buckingham and the OAG, and DPS Deputy Commissioner Ambrosio Ogumoro and the DPS. Both agencies receive federal funding to hire personnel.

Other CNMI department, agencies and their heads have been scheduled to sponsor Camacho campaign events, including the Department of Commerce's Secretary, Michael Ada.  The Department of Commerce oversees the federal ARRA funds, and Ada was appointed the CNMI ARRA State Lead.

In January 2010 it was revealed that fraud was found in some ARRA spending.

Click to enlarge - Camacho Facebook Page Screen Capture
Recently, it was announced that AG Edward Buckingham has hired private attorney Anthony Long to defend him against election violation charges.  A resident promised that if the AG doesn't reveal how much the CNMI is paying for this private attorney, an Open Government Act request will be filed.

CNMI government employees must follow local election law. In fact, using government equipment and time to plan and execute the campaign activities is a violation of CNMI law:
PL 8-11, 1 ( 8434); amended by PL 8-28, 3. 8534. Restraints on Use of Public Supplies, Services, Time, and Personnel for Campaign Activities.
(a) A public official or public employee shall not use public funds, time, personnel, or equipment for the public official or public employees private gain or that of another unless the use is authorized by law.
(b) A public official or public employee shall not use public funds, time, personnel, or equipment for political or campaign activity unless the use is:
(1) Authorized by law; or
(2) Properly incidental to another activity required or authorized by law.
(c) The Public Auditor may adopt rules specifying examples of political or campaign activity permissible or not permissible under this section.
Additionally, if a state or local agency or department is funded in full or part by federal funds, it must also comply with the Hatch Act.

The U.S. Office of the Special Counsel in an independent federal agency that investigates and prosecutes
violations of the Hatch Act.  From the OSC website:
Hatch Act Unit (Political Activity)
OSC promotes compliance by government employees with legal restrictions on political activity by providing advisory opinions on, and enforcing, the Hatch Act. Every year, OSC’s Hatch Act Unit provides over a thousand advisory opinions, enabling individuals to determine whether their contemplated political activities are permitted under the Act.

Hatch Act Unit also enforces compliance with the Act. Depending on the severity of the violation, OSC will either issue a warning letter to the employee, or prosecute a violation before MSPB. 
What state and local employees are covered?
The Hatch Act restricts the political activity of individuals principally employed by state or local executive agencies and who work in connection with programs financed in whole or in part by federal loans or grants. Usually, employment with a state or local agency constitutes the principal employment of the employee in question. However, when an employee holds two or more jobs, principal employment is generally deemed to be that job which accounts for the most work time and the most earned income.

The following list offers examples of the types of programs which frequently receive financial assistance from the federal government: public health, public welfare, housing, urban renewal and area redevelopment, employment security, labor and industry training, public works, conservation, agricultural, civil defense, transportation, anti-poverty, and law enforcement programs.

Hatch Act provisions also apply to employees of private, nonprofit organizations that plan, develop and coordinate federal Head Start or Community Service Block Grant programs.

State and local employees subject to the Hatch Act continue to be covered while on annual leave, sick leave, leave without pay, administrative leave or furlough.
State and Local Employees – Prohibited Activities
Covered state and local employees may not:
  • be candidates for public office in a partisan election; 
  • use official authority or influence to interfere with or affect the results of an election or nomination; or
  • directly or indirectly coerce, attempt to coerce, command, or advise a state or local officer or employee to pay, lend, or contribute anything of value to a party, committee, organization, agency, or person for political purposes
State and local employees subject to the Hatch Act should note that an election is partisan if any candidate is to be nominated or elected as representing a political party, for example, the Democratic or Republican Party.
A note of caution - an employee’s conduct is also subject to the laws of the state and the regulations of the employing agency. Prohibitions of the Hatch Act are not affected by state or local laws.
State and Local Employees Penalties for Violations of the Hatch Act:
If the Merit Systems Protection Board (“Board”) finds that an employee violated the Hatch Act and that the violation warrants dismissal from employment, the employing agency must either remove the employee or forfeit a portion of its federal assistance equal to two years salary of the employee. If within eighteen months of his removal, the employee becomes employed by a state or local agency within the same state, then that agency, or the agency from which the employee was removed, may lose some of its federal funding.
Some Q and A
I am a Hatch Act covered employee and a supervisor, can I ask my staff to volunteer for the governor’s campaign, or the campaign for any other elected official?

Answer: No. As discussed in Question No. 18 above, it is inherently coercive for a supervisor to ask a subordinate employee to contribute to a political cause. Therefore, the Hatch Act would prohibit a supervisor from asking subordinates to volunteer for any partisan political campaign, political party, etc.

I am a Hatch Act covered employee and a supervisor. May I invite my subordinates to a fundraiser for a partisan candidate or political party?

Answer: No. Inviting subordinate employees to a political fundraiser would violate two provisions of the Hatch Act. First, inviting subordinate state or local employees to a political fundraiser would violate the Act’s prohibition against directly or indirectly coercing, attempting to coerce, or advising other employees to make a political contribution, even if the supervisory employee does not expressly ask the individuals to contribute money. Second, inviting subordinate employees to any political event would violate the Act’s prohibition against using one’s official influence or authority to affect the result of an election. Such conduct is inherently coercive, and violates the Act even if the supervisory employee does not threaten to penalize subordinates who do not attend or promise to reward those who do attend.

Is a Hatch Act investigation an administrative or criminal matter?

Answer: A Hatch Act investigation is an administrative matter. Hatch Act matters are adjudicated before the Merit Systems Protection Board, which is an administrative agency.
Here is the Hatch Act Violation Complaint Form: