News from Congress: On November 30, 2012, the Senate passed S. 2170, the Hatch Act Modernization Act of 2012. The bill now goes to the House.
The Hatch Act is a statute dating back to 1939 which limits partisan political activity by certain federal, state and local government employees. The Hatch Act is enforced by the Office of Special Counsel (OSC), who has the authority to seek the removal of employees violating the Act in proceedings before the Merit Systems Protection Board (MSPB).
S. 2170 has been championed by Special Counsel Carolyn Learner, who sought several changes to the Hatch Act to reflect changes in government and to reduce OSC's enforcement burden given its limited budget. In particular, the Senate Committee report (Senate Report 112-211) relates Special Counsel Learner's testimony that 45% of all cases in the OSC Hatch Act unit were from state and local political campaign issues. Although OSC had requested to have state and local employees exempted entirely from the federal Hatch Act, section 2 of S. 2170 insteads limits the Hatch Act to state and local employees whose salary comes completely from federal funds. Section 3 reclassifies District of Columbia employees so that they are treated as state and local government employees. Section 3 also allows covered employees to participate in partisan campaigns for local elected offices in the District of Columbia. Previously, District of Columbia employees had been treated like federal employees, which the Committee Report noted was an artefactfrom the pre-Home Rule period for the District. Similarly, the present Hatch Act makes provisions for campaings in suburban Maryland and Virginia localities but not the District itself, reflecting the lack of elective offices in the District pre-Home Rule.
Finally, Section 4 of S. 2170 expands the MSPB's discretion in setting penalties for violations. Currently, the Hatch Act requires removal when a violation is found, unless the unanimous MSPB votes for a lesser penalty, and the only alternative penalty is a suspension of 30 days or more. S. 2170 would allow the MSPB to select the penalty from a wider set of options, including suspensions less than 30 days and reprimands. The Committee report indicated the Senate's intent that the MSPB apply its Douglas factor analysis for reasonableness of the penalty, as it does in non-Hatch Act cases.
If you are a government employee and an action has been proposed, or taken, against you for an alleged Hatch Act violation , and you wish to discuss your rights, please contact Passman & Kaplan to request an initial consultation.