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Political activities by public officers and employees and the Hatch Act

By Harvey Randall, Esq.

Political activities by public officers and employees and the Hatch Act
Adapted from a NYS Ethics Commission advisory

NB. The New York Temporary State Commission on Lobbying and the New York State Ethics Commission have merged and are now the New York State Commission on Public Integrity. Its web site is www.nyintegrity.org

As election time draws near, the question of whether public employees can seek elective office or participate in partisan politics while continuing to remain on the job is sometimes an issue.

According to the State Ethics Commission, state officers and employees:

Are to engage in campaign activities only on their own time.

Are to avoid using their state position to gain any special advantage over ?the political opposition.?

Are to refrain from using any State resource ?to aid the campaign,? such as telephones, office supplies, postage, photocopy equipment, computers and staff assistance.

Are not to create suspicion by soliciting or accepting contributions from individuals or organizations under their jurisdiction.

Are not to use their state authority or official position to coerce, intimidate or otherwise influence other state workers to contribute or interfere with any election.

State offices may not be used for soliciting or collecting any political contributions and campaign literature and speeches may not indicate any support or opposition of any candidate although a candidate may include the name of his or her agency and list his or her position in a ?campaign biography.?

Section 107 of the Civil Service Law prohibits certain types of political activities and makes violation of its provisions a misdemeanor. Included among its provisions is the ?prohibition against promise of influence [to] directly or indirectly ? coerce or persuade the vote or political action of any citizen?.? Violation of this provision is punishable by a fine of not less than $100 or more than $3,000 or imprisonment for not less than 10 days or more than two years, or both.

In addition, certain public officers and employees are subject to the federal Hatch Act, 5 USC 1501. This law prohibits certain kinds of partisan political activities by individuals subject to its provisions.

Who is subject to the Hatch Act? The Act applies to the majority of officers and employees in the executive branch of state and local government where their principal employment involves an activity financed in whole or in part by federal loans or grants. Such persons may not participate in partisan political activities.

However, the Hatch Act does not apply to individuals employed by educational or research institutions that are supported in whole or in part by the state or a political subdivision of the state. Further, the law exempts certain specified public officers from the prohibitions involving being a candidate for partisan elective office. These exemptions include the governor, the mayor of a city, and the elected head of an executive department who is not in the classified service.

According to the US Merit Systems Protection Board, an election is partisan if any candidate for elective public office is running as a representative of a political party whose presidential candidate received electoral votes at the preceding presidential election.

Individuals subject to the Hatch Act may not be candidates for partisan elective office or use their official authority or influence for the purpose of interfering with or affecting the results of such elections or the nominations of candidates for those elective offices. Direct or indirect coercion of public workers to make a loan or to contribute anything of value to an individual or a party or other organization for political purposes is also prohibited.

In contrast, except where prohibited by State or local law, public officers and employees may be members of, and hold office in, political parties. They may also take an active role in the activities of the organization. They may campaign for candidates and work at the polls on Election Day.

State law may prohibit certain individuals from holding office in a political party. For example, Section 5.2(a) of the Civil Service Law provides that no member of the State civil service commission may be an officer of any political party or political organization or participate in partisan political activities. Section 27.2 prohibits ?a member of a municipal civil service commission or personnel officer? from serving as an officer of any political party.

While the Hatch Act permits individuals to engage in such activities as supporting the election of candidates for public office, making financial contributions to their party and speaking on behalf of their candidate, such persons may not attempt to coerce other public employees to make such contributions.

The Special Counsel to the Merit Systems Protection Board has said that the Hatch Act applies to state and local employees subject its provisions while on annual leave, sick leave, leave without pay and other authorized, or unauthorized, absences in connection with political activities.

One case concerning the fall-out of an individual?s political activity is [Davis v City of New York, USDC, SDNY, Judge Scheindlinm James Davis, a New York City police officer was on the 1998 Liberal Party ?petition slate? for the November 1998 election. He ?conducted a minimal campaign.? On November 3, 1998, his name was listed on the election ballot as the Liberal Party?s nominee for Member of the State Assembly. The next day the Department dismissed him, stating that it had terminated Davis ?for violating a law that prohibits police officers from accepting a political party?s nomination without resigning their commission?, citing Chapter 49, Section 1129 of the New York City Charter. Go to http://publicpersonnellaw.blogspot.com/2007/03/political-activities-and-public.html for the text of the ruling.

Full post as published by New York Public Personnel Law on April 21, 2008 (boomark / email).