Analysis: Hatch Act modernization good for feds, better for locals

Thursday - 3/8/2012, 11:52am EST

Debra Roth, partner, Shaw, Bransford and Roth.

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Sen. Daniel Akaka (D-Hawaii) and Rep. Elijah Cummings (D-Md.) introduced a bill Wednesday that would rewrite how the government deals with employees who violate the Hatch Act. That's the law that prevents federal employees from campaigning while on the job.

"It's sort of a big deal for federal employees," said Debra Roth, a partner at Shaw, Bransford and Roth. "It's a huge deal for state and local workers."

Roth joined The Federal Drive with Tom Temin Thursday with the rundown of the proposed legislation.

She described the bill as "round one" of modernizing the Hatch Act, a 73-year-old law whose purpose was to keep partisan coercion out of the executive branch of the federal government as well as state and local governments.

The Hatch Act Modernization Act of 2012:

  • Allows state and local government employees covered by the law to run for office.

  • Allows Merit Systems Protection Board greater flexibility to consider a range of punishments rather than automatic firing.

  • Considers Washington, D.C., employees, who are now treated the same as federal employees, under same rules as state/local employees.

According to Roth, Special Counsel Carolyn Lerner said at her confirmation hearings in June 2010 that she considered it important to modernize the statute. Cummings and Akaka's bill would do that.

"If you're a state and local employee, it would lift the prohibition," Roth said. "You would be allowed to engage in political activity. If your state law prohibited it, it doesn't preempt state law."

While the bill would lift the prohibition for state and local employees, Roth doesn't think the prohibition will ever be lifted for federal employees.

"For federal employees, the change that's being proposed, I think is important," Roth said. "I think it's a first step for where the special counsel's heading. What it would do is it would give the special counsel a greater array of penalties for violations of the Hatch Act."

The existing statute only offers a single penalty for a full spectrum of violations. In the case of minor infractions, for example, wearing a political button into the office, civil servants are subject to removal from federal service.

"In my practice, we've seen and heard about these instances of really minor infractions, and the only thing in their arsenal is removal," Roth said. "With the proposed modernization, they would get the whole array of penalties, from a reprimand to a suspension for any number of days, demotion, removal, debarment from federal government for five years or a fine of $1,000."

According to Roth, the Office of Special Counsel receives approximately 2,000 inquiries annually questioning whether a person running for state or local office should be disqualified.

"They get the impression that many of those complaints are really using the Hatch Act more as a weapon to get somebody disqualified," she said. "The concern has grown that you're disqualifying many people who are very qualified to run for partisan office because of an archaic reason that was never intended."

Redefining political activity

Moving forward, Roth is interested in seeing how Congress redefines questionable political activity in regards to federal workers.

"What really is 'political activity' in the federal workplace in modern times, when many people work from home?" she asked. "If they're in their home during their work-from-home hours, is that a federal workplace?"

Modern technology and the way the federal government is being run as a modern employer may force Congress to reassess what constitutes questionable political activity for federal employees. But Ross said that's "round two" of the Hatch Act modernization and that won't happen for awhile.

For now, though, the only change affecting federal employees concerns the new penalties the proposed bill gives to enforce the act.

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