[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]

HATCH ACT: OPTIONS FOR REFORM

=======================================================================

HEARING

before the

SUBCOMMITTEE ON FEDERAL WORKFORCE,
U.S. POSTAL SERVICE AND LABOR POLICY

of the

COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

SECOND SESSION

__________

MAY 16, 2012

__________

Serial No. 112-155

__________

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

Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform

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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

DARRELL E. ISSA, California, Chairman
DAN BURTON, Indiana ELIJAH E. CUMMINGS, Maryland,
JOHN L. MICA, Florida Ranking Minority Member
TODD RUSSELL PLATTS, Pennsylvania EDOLPHUS TOWNS, New York
MICHAEL R. TURNER, Ohio CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina ELEANOR HOLMES NORTON, District of
JIM JORDAN, Ohio Columbia
JASON CHAFFETZ, Utah DENNIS J. KUCINICH, Ohio
CONNIE MACK, Florida JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan JIM COOPER, Tennessee
ANN MARIE BUERKLE, New York GERALD E. CONNOLLY, Virginia
PAUL A. GOSAR, Arizona MIKE QUIGLEY, Illinois
RAUL R. LABRADOR, Idaho DANNY K. DAVIS, Illinois
PATRICK MEEHAN, Pennsylvania BRUCE L. BRALEY, Iowa
SCOTT DesJARLAIS, Tennessee PETER WELCH, Vermont
JOE WALSH, Illinois JOHN A. YARMUTH, Kentucky
TREY GOWDY, South Carolina CHRISTOPHER S. MURPHY, Connecticut
DENNIS A. ROSS, Florida JACKIE SPEIER, California
FRANK C. GUINTA, New Hampshire
BLAKE FARENTHOLD, Texas
MIKE KELLY, Pennsylvania

Lawrence J. Brady, Staff Director
John D. Cuaderes, Deputy Staff Director
Robert Borden, General Counsel
Linda A. Good, Chief Clerk
David Rapallo, Minority Staff Director

Subcommittee on Federal Workforce, U.S. Postal Service and Labor Policy

DENNIS A. ROSS, Florida, Chairman
JUSTIN AMASH, Michigan, Vice STEPHEN F. LYNCH, Massachusetts,
Chairman Ranking Minority Member
JIM JORDAN, Ohio ELEANOR HOLMES NORTON, District of
JASON CHAFFETZ, Utah Columbia
CONNIE MACK, Florida GERALD E. CONNOLLY, Virginia
TIM WALBERG, Michigan DANNY K. DAVIS, Illinois
TREY GOWDY, South Carolina

C O N T E N T S

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Page
Hearing held on May 16, 2012..................................... 1

WITNESSES

The Honorable Carolyn N. Lerner, Special Counsel, U.S. Office of
Special Counsel
Oral Statement............................................... 6
Written Statement............................................ 9
The Honorable Irvin B. Nathan, Attorney General, District of
Columbia
Oral Statement............................................... 16
Written Statement............................................ 18
The Honorable Jon J. Greiner, Former Utah State Senator
Oral Statement............................................... 25
Written Statement............................................ 27
Mr. Scott A. Coffina, Partner, Drinker Biddle & Reath LLP
Oral Statement............................................... 30
Written Statement............................................ 33
Mr. Jon Adler, National President, Federal Law Enforcement
Officers Association
Oral Statement............................................... 41
Written Statement............................................ 42

APPENDIX

The Honorable Dennis Ross, a Member of Congress from the State of
Florida, written statement..................................... 57
Testimony for the record submitted by The Federal Managers
Association.................................................... 58
The National Law Journal: Amending the Hatch Act by Scott A.
Coffina........................................................ 60
Letter from The National Sheriffs' Office........................ 63

HATCH ACT: OPTIONS FOR REFORM

----------

Wednesday, May 16, 2012,

House of Representatives,
Committee on Oversight and Government Reform,
Subcommittee on Federal Workforce, U.S. Postal Service and
Labor Policy,
Washington, D.C.
The subcommittee met, pursuant to notice, at 9:30 a.m. in
room 2247, Rayburn House Office Building, the Honorable Dennis
Ross [chairman of the subcommittee], presiding.
Present: Representatives Ross, Chaffetz, Cummings, Norton,
Lynch, Connolly, Gowdy and Davis.
Staff Present: Ali Ahmad, Majority Communications Advisor;
Adam P. Fromm, Majority Director of Member Services and
Committee Operations; Jennifer Hemingway; Majority Senior
Professional Staff Member; Ashok M. Pinto; Majority Deputy
Chief Counsel, Investigations; James Robertson, Majority
Professional Staff Member; Cheyenne Steel, Majority Press
Assistant; Peter Warren, Majority Legislative Policy Director;
John A. Zadrozny, Majority Counsel; Krista Boyd, Minority
Deputy Director of Legislation/Counsel; Ashley Etienne,
Minority Director of Communications; Susanne Sachsman Grooms,
Minority Chief Counsel; Devon Hill, Minority Staff Assistant;
William Miles, Minority Professional Staff Member; Dave
Rapallo, Minority Staff Director; and Safiya Simmons, Minority
Press Secretary.
Mr. Ross. Good morning.
I will now call the Subcommittee on Federal Workforce, U.S.
Postal Service and Labor Policy to order.
Today's hearing is on the ``Hatch Act: Options for
Reform.''
As we do in all our Oversight subcommittee and full
committee hearings, I will state the Oversight Committee
Mission Statement.
We exist to secure two fundamental principles. First,
Americans have the right to know that the money Washington
takes from them is well spent. Second, Americans deserve an
efficient and effective government that works for them.
Our duty on the Oversight and Government Reform Committee
is to protect these rights. Our solemn responsibility is to
hold government accountable to taxpayers because taxpayers have
a right to know what they are getting from the government.
We will work tirelessly in partnership with citizen
watchdogs to deliver the facts to the American people and bring
genuine reform to the Federal bureaucracy. This is the mission
of the Oversight and Government Reform Committee.
I will now recognize myself for an opening statement.
During my brief tenure as a member of Congress, I have seen
how well intentioned legislation can have unintended
consequences when applied to the real world. This is certainly
true with respect to the Hatch Act. Originally enacted in 1939,
the Hatch Act was needed to prevent an all too prevalent
practice of Federal employees engaging in partisan, political
activity using Federal resources.
The Hatch Act was last amended in 1993, a year in which
employees were becoming accustomed to email for workplace
communication and using other forms of electronic communication
to share information with their colleagues. Technology's
advance is only speeding up and the Hatch Act is in need of
update.
Today's hearing builds on the committee's June 2011 hearing
at which a bipartisan panel expressed support for making major
changes in the Hatch Act statute. Furthermore, several bills
have been introduced to repeal the Hatch Act's overreaching and
arbitrary restrictions on State and local government workers
who seek to run for office.
In short, there is a growing consensus that we should enact
comprehensive Hatch Act reform. The Federal Government should
not be in the business of making personnel policy for State and
local government employees and the Office of Special Counsel
should not be dedicating as much of its resources as it now
does in pursuing complaints concerning State and local
elections.
Rather, the Office of Special Counsel should be focused on
cracking down on Federal workers who abuse the public trust and
on protecting those Federal workers who are unfairly targeted
by their managers for blowing the whistle on waste, fraud and
abuse. Instead, we should craft legislation that preserves the
intent of the Hatch Act and reflects the realities of today's
workplace. Comprehensive reform should, for example, adopt a
definition of Federal workplace that accounts for how Federal
employees communicate today, which is oftentimes out of the
office, on the go, with personal electronic devices.
I think we can all agree that our Nation's public servants
should be prohibited from engaging in partisan, political
activity. The Hatch Act has been largely successful at curbing
overtly partisan politicking within the civil service. However,
a fresh look is needed to address certain unforeseen challenges
and unintended consequences. We will hear about some of those
consequences today. I hope we are able to enact changes that
prevent them from occurring in the future.
I would like to thank Mr. Cummings for his work on this
important issue and I look forward to working with him,
Chairman Issa and the Ranking Subcommittee member, Mr. Lynch,
on moving Hatch reform legislation through the House of
Representatives this Congress.
I thank the witnesses for appearing today and I look
forward to your testimony.
I will now recognize the Ranking Member of the full
committee, the gentleman from Maryland, Mr. Cummings, for an
opening statement.
Mr. Cummings. Thank you, Mr. Chairman, for holding this
hearing today.
In March, I introduced H.R. 4152, the Hatch Act
Modernization Act of 2012 which is co-sponsored by every
Democratic member of the Subcommittee. This bill provides
immediate, common sense and non-controversial fixes to the
Hatch Act. Specifically, it implements recommendations for
immediate reform proposed by Special Counsel Carolyn Lerner.
First, the bill eliminates the restriction that prevents
state and local government employees from running for political
office. Currently, if a State or local government employee
works on a program that receives any amount of Federal funding,
the Hatch Act prohibits that employee from running for office.
This restriction has led to a number of simply unjust
results for public servants. For example, today we will hear
from John Greiner, former Police Chief of the City of Ogden,
Utah, who was removed from his position because he ran for
State Senate. In another example, a Philadelphia transit cop
was barred from running for his local school board because he
works with an explosives detection dog paid for by a grant from
The Department of Homeland Security. These results make no
sense. Even worse, the Office of Special Counsel reports that
45 percent of its caseload now involves enforcing this
restriction, diverting valuable resources from more critical
issues.
The Hatch Act Modernization Act also implements a second
recommendation made by the Special Counsel. It expands the
range of penalties for Hatch Act violations. Right now, an
employee who commits a Hatch Act violation, no matter how
minor, must be fired unless the Merit Systems Protection Board
unanimously votes to impose a lesser penalty. This bill makes
it easier for the punishment to more appropriately fit the
violation.
Finally, the bill includes a third provision to treat
employees working for the District of Columbia as State and
local government employees rather than as Federal employees.
This provision is based on legislation championed by
Congresswoman Eleanor Holmes-Norton that passed the House by a
voice vote in the 111th Congress.
We will hear today from the Attorney General of the
District of Columbia that without this change, he will not be
able to run for another term in 2014. That just does not make
sense.
Mr. Chairman, this bill is simple, straightforward and non-
controversial. Last June at our first hearing on the Hatch Act,
Chairman Issa, to his credit, said the committee would consider
Hatch Act legislation before the election. He said, ``The
Oversight Committee is intending to author such legislation as
may be necessary and will affect the next President.
Necessarily, we will, in fact, work on a bipartisan basis to
find any and all changes necessary to take effect upon the
inauguration of the next President. Although this is 18 months,
and it seems like a long time, in political time, it is a very
short period.''
The Chairman was right. That was nearly a year ago and time
is running out. Although I support additional efforts to
improve the Hatch Act, H.R. 4152 includes commonsense fixes
that the Special Counsel needs now before the election. These
provisions have widespread support and we can pass them
immediately.
Mr. Chairman, I am hoping that we can work together to
schedule a markup for May 31 when we return from the Memorial
Day recess. There are many public servants, police officers,
social workers, paramedics, who want to serve their country by
holding public office. We should not make them wait any longer.
With that, I yield back.
Mr. Ross. Thank you, Mr. Cummings.
I now recognize the gentleman from Massachusetts, the
Ranking Member of the Subcommittee, Mr. Lynch, for an opening.
Mr. Lynch. Thank you, Mr. Chairman.
I would also like to welcome our witnesses this morning and
thank each of them for being here to help the Subcommittee with
its work.
As the Ranking Member has pointed out, it has been nearly
two decades since the Hatch Act was last amended. Throughout
this time, we have witnessed significant legislative, workplace
and technological developments that collectively have
demonstrated a need for us to modernize this essential and
landmark law.
Accordingly, I welcome this opportunity to examine how we
can best bring the Hatch Act up to date to reflect our
contemporary Federal workplace in a responsible and bipartisan
manner that also safeguards the integrity and purpose behind
the Act.
The original Hatch Act of 1939, and its subsequent
amendments in 1993, together were intended to curtail on-the-
job politics in the Federal workplace. The law itself attempts
to walk a fine line between affording maximum respect to the
constitutionally-protected freedoms of speech and expression
and the compelling need to eliminate political coercion and
partisan influence throughout the Federal civilian workforce.
In other words, the Hatch Act helps to ensure that those
government employees tasked with carrying out policies and
programming do exactly that while putting aside their
individual political views.
As many of you have heard me state on several occasions, I
truly believe that the Federal Government has one of the most
dedicated and talented employee workforces anywhere in the
world. The majority of our workers enter public service with an
innate interest in doing right by their fellow citizens and
making a positive difference on behalf of their country.
Nevertheless, there will always be a few bad actors who
unfortunately use their official position to influence or
advance a particular political agenda, party or partisan
candidate. In those few cases, we, fortunately, have the
provisions of the Hatch Act to rely upon as well as the Office
of Special Counsel and the Merit Systems Protection Board, to
carry out the duties of enforcement and punishment
respectively.
As we prepare ourselves for another major presidential
election and campaign cycle, which in many ways is already well
underway, I appreciate Special Counsel Carolyn Lerner's renewed
focus on ways to enhance and modernize the Hatch Act. With the
advent of smart phones, blogging and other social mediums and
technologies, the Federal workplace is clearly no longer our
parents' workplace.
To that end, it is commonsense that we would now be
reexamining the possibility of modernizing provisions of the
Hatch Act. In addition to updating the Hatch Act, the Office of
Special Counsel has also put forth some reasonable suggestions
for modifying the Hatch Act's reach into political activities
of government employees on a State and local level.
I have heard of dozens of instances cited by Ranking Member
Cummings and others involving state, county or municipal
workers who are either prevented from pursuing elected office
or in some cases, even fired because he or she ran for public
office while employed in a capacity was in some way or another
connected to Federal dollars.
Mr. Chairman, these reports are concerning and reflective
of the need to promptly reexamine the Hatch Act in order to
reduce the possibility of such unintended consequences. That
said, I urge our Subcommittee to move swiftly to consider H.R.
4152, the Hatch Act Modernization Act of 2012, introduced by my
colleague and friend, Mr. Cummings of Maryland. It is sponsored
by every single Subcommittee member on this side of the aisle.
The bill will address a lot of the concerns being discussed
here this morning. If there are additional Hatch Act related
changes that the majority would like to see tackled, then at a
minimum, H.R. 4152 should serve as the vehicle for
accomplishing those changes.
Again, I thank each of our witnesses for being here with us
today and I yield back the balance of our time.
Mr. Ross. Thank you, Mr. Lynch.
I will now introduce our distinguished panel. We have with
us the Honorable Carolyn N. Lerner, who is the Special Counsel,
U.S. Office of Special Counsel; Ms. Anna Galindo-Marrone,
Chief, Hatch Act Unit, U.S. Office of Special Counsel, here not
to testify but for technical reference only I understand; and
the Honorable Irvin Nathan, Attorney General, District of
Columbia.
I would like to defer to my colleague from Utah, Mr.
Chaffetz, to introduce our next guest.
Mr. Chaffetz. Thank you, Mr. Chairman.
I wanted to take just a moment and thank one of our own
from Utah, Mr. Greiner, for being here.
He began his law enforcement career in Ogden in 1973 and
later rose through the ranks and became the Ogden City Police
Chief. In fact, in 2005, Mr. Chairman, he was named the Utah
Chief of the Year, quite a distinction for somebody who served
law enforcement so nobly for so long.
He was elected to serve a four year term in the Utah State
Senate in 2006 but Mr. Greiner was fired by Ogden City on
December 28, 2011 after a Federal panel ruled he violated the
Hatch Act. Mr. Greiner's violation came when he signed a
quarterly report for a Federal grant to upgrade the police
dispatch system, money that went to the country not to the
actual department. The city officials said the termination was
necessary in order for Ogden to continue receiving future
Federal funds and loans from the Federal Systems Merit
Protection Board. Mr. Greiner was not only fired but was also
banned by the Federal Government from serving as a law
enforcement officer in Utah for 18 months starting in January
2012.
This is outrageous and something that needs to be
rectified. I appreciate the bipartisan support, in particular
the members on the dais today. We appreciate the service of Mr.
Greiner and appreciate your being here and sorry sir that you
have had to go through this. Hopefully you can help us as we
try to figure out the solution because I certainly don't think
you were a part of the problem.
Thank you, Mr. Chairman, and I yield back.
Mr. Ross. Thank you, Mr. Chaffetz.
Our next witness is Mr. Scott A. Coffina, a Partner at
Drinker Biddle & Reath. Our last witness is Mr. Jon Adler,
National President, Federal Law Enforcement Officers
Association.
Pursuant to Committee rules, all witnesses will be sworn
before they testify. Please rise and raise your right hand.
Do you solemnly swear or affirm that the testimony you are
about to give will be the truth, the whole truth, and nothing
but the truth?
[Witnesses respond in the affirmative.]
Mr. Ross. May the record reflect that all witnesses
answered in the affirmative. You may be seated.
In order to allow time for discussion, I would like you to
limit your testimony to five minutes. Your entire written
statement will be made a part of the record.
Now I will recognize Ms. Lerner for an opening statement.

WITNESS STATEMENTS

STATEMENT OF CAROLYN N. LERNER

Ms. Lerner. Thank you, Chairman Ross, Ranking Member Lynch,
and members of the Subcommittee
Thank you for the opportunity to testify today about the
U.S. Office of Special Counsel's administration of the Hatch
Act. With me today is Ana Galindo-Marrone, the Chief of OSC's
Hatch Act Unit.
After being sworn in as Special Counsel last June, I
reviewed OSC's Hatch Act program and quickly discovered the
overreach of this otherwise very important law. At its best,
the Hatch Act keeps partisan politics out of the workplace and
prevents those in political power from abusing their authority.
At its worse, the Act interferes with the rights of well
qualified citizens to serve their local communities by running
for State and local office.
This concern, along with others, prompted me to send
Congress a legislative proposal to amend the Hatch Act. I
applaud the bipartisan group of lawmakers in both the House and
the Senate who introduced this legislation in March.
The primary reform in these bills is removing the Hatch
Act's prohibition on State and local employees running for
partisan elected office. Removing this restriction will promote
good government and demonstrate respect for the independence of
States and localities. It will also let OSC use other limited
resources toward more effective enforcement of the Act.
Currently, State and local employees are ineligible to run
for office if their jobs are in any way tied to a source of
Federal funds. Both case law and substantial increase in
Federal grant programs have greatly expanded the law's
coverage. Hundreds of thousands of public servants, including
first responders, health care workers and police officers, are
now covered by this prohibition. This expansive application of
the law leads to absurd results. Here are some examples.
As Representative Cummings noted earlier, OSC recently had
to tell Matthew Arlen, a police officer in a canine unit, that
he couldn't run for the school board because his partner, a
black Labrador, is funded through Federal grants. Mr. Arlen
rightly questioned how much influence can my dog have over what
I could do on the school board.
We told a paramedic he couldn't run for county coroner
because some of the patients that he transports received
Medicaid and we routinely advise deputy sheriffs that they
can't run for sheriff. Thus, the most qualified candidates are
often disqualified from running for office. This is especially
a problem in smaller communities where the pool of potential
candidates is very limited.
Not only is the reach of the Hatch Act too broad, its
enforcement often is inconsistent with unfair results for
several reasons. First, OSC can only investigate those cases
where we receive the complaint, so using the Hatch Act as a
weapon, candidates frequently file complaints against their
opponents. An allegation that an individual is in violation of
Federal law, even in the absence of any wrongdoing, can cast a
cloud over a candidacy. Our enforcement efforts actually
increase the level of partisanship in politically charged
contests.
Second, OSC has no jurisdiction in non-partisan elections.
This exemption creates confusion and inconsistent results
between neighboring localities. For example, a school board
election may be partisan in one county but non-partisan the
next county over.
One final example, the law does not apply to elected
officials and once someone has already been elected to office,
they are free to run again in any partisan election. This
again, leads to absurd results--like a deputy sheriff who
cannot run against a sitting sheriff but that sheriff could run
again not only for that office, but any other elected office
for which he may choose.
These arbitrary results reinforce the need to let States
and localities decide how best to restrict the political
activity of their employees. In fact, each State already has
their own ethics rules or mini-Hatch Acts covering this issue.
Despite my concerns about the unfair application of the
Act, nearly half of OSC's Hatch Act caseload is made up of
State and local cases. Over the past two years, we have
conducted more than 500 investigations and issued thousands of
advisory opinions. In these cases, we must conduct very fact
specific, time consuming investigations to determine coverage
and the State or local agency has to spend their resources
answering our document requests and interview requests.
It is important to note that if the candidacy provision is
removed, a State or local employee still could not engage in
coercive conduct or misuse their authority for political gain.
Without the candidacy provision OSC could target its resources
on these types of cases in which actual misconduct is at issue.
We could also do more outreach and education to help employees
understand their obligations under the Act and prevent problems
from happening in the first place.
A second important reform is modifying the penalty for
Federal employees. As the law now stands, termination is the
only penalty unless the MSPB Merit Systems Protection Board
unanimously votes to mitigate the penalty. Even in these cases,
the MSPB cannot impose a penalty of less than 30 days
suspension.
This structure is overly restrictive and can lead to unjust
results. It can even deter agencies from referring potential
violations to my agency because they don't want to lose an
otherwise good employee. The pending legislation allows for the
same range of penalties which now apply to other disciplinary
actions and passing this reform will aid OSC's enforcement
efforts.
Finally, we have noted several other potential areas for
legislative reform of the Hatch Act. These are described at
greater length in my written testimony and given my time
constraints, I am going to rely on that submission. I also know
that other panel members will be addressing several of them.
Very briefly they include the following five issues: one,
codify a definition of political activity; two, clarify the
definition of the term ``Federal workplace''; three, clarify
the scope of the exemption for high level administration or
White House employees; four, modify the Hatch Act's application
to District of Columbia employees; and five, consider a statute
of limitations.
I just want to note that these other areas are no where
near as critical, in my mind, as the need to modify the State
and local candidacy provision. I really want to stress that
that is our most crucial need. While the other items are
important, I really hope that we can emphasize change in that
area.
[Prepared statement of Ms. Lerner follows:]

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Mr. Ross. Thank you, Ms. Lerner. I appreciate that.
Just as a reminder, your written testimony is a part of the
record, so it is all inclusive.
With that, I would like to recognize Mr. Nathan for five
minutes for an opening.

STATEMENT OF IRVIN B. NATHAN

Mr. Nathan. Good morning, Mr. Chairman and Subcommittee
members. I am Irv Nathan, the Attorney General for the District
of Columbia.
I am very pleased I was invited here today to testify about
proposals to reform the Hatch Act and to speak in favor of
reforms that would treat the citizens of the District of
Columbia like the citizens of all States and localities across
the country, allowing them to choose their elected officials,
whether in partisan or non-partisan elections, without
inappropriate Federal restrictions.
First, as a former General Counsel of the House, let me say
how pleased I am to be back here at an institution for which I
have such respect and admiration. Let me also comment as a
person who has seen a lot of hearings that this is one of the
rare hearings where everything that has been said on both sides
of the aisle, we agree with and I believe that you agree with
each other. I certainly hope that we can get these reforms
passed. It is very important for the District of Columbia
residents and for citizens around the country.
The short of it is that under the Hatch Act, the current
way the District of Columbia employees are treated just like a
Federal agency which is completely inappropriate. It has had
very damaging effects. We have a number of elected officials,
one of whom is on the dais, and I am pleased to see Ms. Norton
here today, and we have elected ANC members, elected school
board members and as I testified in my statement now the
Attorney General position will become an elective position
starting in 2014.
As it stands, since we are treated as a Federal agency, it
means that people in those positions are not allowed to run for
elective office in a partisan election. As an example, our ANC
members are unpaid. These are private individuals they are
unpaid, they are volunteers, they serve their neighborhoods,
they serve the District, but because they are considered
officeholders under the Hatch Act, they are precluded from
running for partisan office. They cannot run for the City
Council; they cannot run for mayor; they cannot run for our
Congressperson's spot.
Similarly, our school board is in the same posture. They
are elected on a non-partisan basis but they cannot run in
partisan elections. As it applies to the Attorney General
position, I was appointed by the Mayor, this was an appointive
position beginning in 2011 when I was first appointed, and has
now become an elective position in a partisan election.
It means if I wanted to run for this office, or more
appropriately if some of my senior deputies who have been there
for years, want to run for this position, they are not
permitted to under the Hatch Act. Even more preposterously, if
someone runs and is elected to the Attorney General position
this term, if that person wanted to run for reelection, they
would have to resign before they could run for reelection, a
loss to the public and something that makes no sense.
The solution, we suggest, is to pass the reforms that
Congressman Cummings and his colleagues have proposed and also
to make clear that District of Columbia employees should not
all be lumped together. We also have judges and folks who work
in the City Council, which is an elected position as well, and
they should not be covered by the Hatch Act. It should be for
Executive Branch employees.
We certainly support the basic notion of the Hatch Act. We
are not looking for anybody to pressure or engage in partisan
activities in carrying out their positions, but by not
permitting them to run for election, you are depriving our
electorate of their choices of people who are well qualified
and you are depriving people who are in good position to help
the city from running for election.
We urge you to modify the Hatch Act to pass the reforms
that have been proposed and to make the tweak as it applies to
the District of Columbia, that we be treated like local
government officials and that it only apply to Executive Branch
officials within the District Government.
Thank you very much.
[Prepared statement of Mr. Nathan follows:]

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Mr. Ross. Thank you, Mr. Nathan.
I will now recognize Mr. Greiner for five minutes for an
opening.

STATEMENT OF JON J. GREINER

Mr. Greiner. Good morning, Chairman Ross and members of the
Committee on Oversight and Government Reform.
My name is Jon Greiner, former Police Chief of Ogden City,
Utah, former Utah State Senator and Hatch Act violator. I
appreciate the opportunity to appear before today to discuss my
experience with the Office of Special Counsel and their
enforcement of the Hatch Act.
Early in March 2006, I was recruited to run for the Utah
State Senate by a number of legislators and representatives of
the Utah Attorney General's Office. I scheduled time with the
Ogden Mayor and City Attorney to talk about the City's position
on the matter in the final days of the candidate filing period
as their employee to get their approval as this service is
determined by them to be in the best interest of the residents
of Ogden City.
On about October 3, 2006, I was contacted by phone by an
attorney of the Office of Special Counsel about an anonymous
complaint allegedly filed against me regarding a potential
Hatch Act violation. She asked that I summarize the current
police department grants in a letter back to her. I sent her an
email with that summary.
Over the next couple of weeks, we corresponded back and
forth to give her everything she needed to conduct her
investigation. She sends me a letter towards the end of October
saying she believes I am in violation of the Hatch Act. We hire
attorneys and get started trying to figure out what the
encompassing part of all this means.
The best case law we could find at the time was a recent
decision about a year old involving an assistant police chief
named Richard Perkins out of Henderson, Nevada. We contact him,
we contact others, and go through the limited amount of
paperwork we could find in 2006 trying to comply with the
request from the Office of Special Counsel.
By November 3, there was a response from the Special
Counsel's Office outlining their desire to have me get out of
the race or give up my job as a police chief. We responded
trying to understand and trying work out things to no avail.
They tell us in the correspondence towards the end of October
of that year that they may seek a complaint against me and the
city of Ogden.
I had suspended my campaign and tried to work through all
of this to no avail. There was absolutely no negotiation with
the Office of Special Counsel. There was nothing they wished to
discuss with our attorneys, so we went through the election and
I was elected. Two years later, we were put on notice that they
were going to come after the city of Ogden for allowing me to
run for elective office.
There's a hearing before an administrative law judge in
early 2009. Again, the attorneys in the State of Utah don't
understand the Act. It became an issue of do we get discovery,
do we get to have witnesses, do we get to have anything that at
a hearing before a judge or others and we got nothing.
We appeal the conviction of the ALJ to the Merits Systems
Protection Board and in a decision in November 2011, they ruled
that the ALJ was correct in her interpretation of the Hatch Act
law and directed my termination from the city happen by the end
of 2011 or that the city forfeit two years of my salary as a
penalty and future grant money.
To that point, there were hundreds of pages of legal
documents on both sides of this issue outlining the selective
enforcement and the misunderstanding by the State attorneys;
there were several hundred thousands of dollars in attorneys'
fees spent to try and understand the public good of this civil
law that impacts State and local government without any
consideration of the mitigating circumstances, including the
penalties as outlined by Representative Chaffetz to myself. I
cannot have an executive position in the State of Utah in law
enforcement as a prohibition for 18 months. That exceeds
penalties Federal courts give convicted felons who have
committed crimes for which jail is a possible remedy.
I offer up Barry Bonds, 30 days house arrest and a $4,000
fine for lying to a Federal grand jury. That penalty is minimal
in comparison to what the Hatch Act has imposed on me for
nothing more than being a point of contact in a grant for which
the city of Ogden's police department did not receive one
penny.
Thank you for your time and I am prepared to answer any
questions you may have.
[Prepared statement of Mr. Greiner follows:]

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Mr. Ross. Thank you, Mr. Greiner.
Mr. Coffina, you are recognized for five minutes for an
opening.

STATEMENT OF SCOTT A. COFFINA

Mr. Coffina. Chairman Ross, Ranking Member Lynch and
distinguished members of the Subcommittee, my name is Scott
Coffina and I appreciate the opportunity to share my thoughts
on reform of the Hatch Act.
As a former Associate Counsel for President George W. Bush
whose responsibilities included advising and training the White
House staff on the parameters of the Hatch Act, and as a former
staffer in President Reagan's Office of Political Affairs who
had to work under its restrictions, I applaud this committee's
efforts to enact sensible changes to this law.
The Hatch Act serves a very important purpose for our
Federal Government, freeing the government workplace from
partisan political influence and coercion. The Hatch Act does
protect Federal workers from political pressure when performing
their jobs and benefits the public by delivering performance
that is free from partisan political influence.
Still, the benefits of the Hatch Act come with a price. Its
restrictions on political activity implicate the First
Amendment rights of millions of Federal employees as well as
those of State and local government officials whose jobs are
funded at least in part with Federal dollars. Because political
activity is at the heart of First Amendment protection,
restrictions on political activities must be carefully
considered to be sure they serve the purpose of keeping the
government workplace free of partisan political influence and
corruption.
It was in this spirit that the last significant overhaul of
the Hatch Act was enacted in 1993. The 1993 amendments
dramatically loosened the restrictions of the Hatch Act that
essential locks government employees out of the political
process entirely. With a laudable focus on protecting the
integrity of the government workplace, the changes enacted in
1993 struck the appropriate balance by allowing most Federal
employees to engage in political activity while off duty while
maintaining strict restrictions on political activity in the
government workplace.
The Office of Special Counsel has done a commendable job of
trying to maintain that balance between the First Amendment and
its mandate to enforce the Hatch Act and provide guidance to
government employees on what the law does and does not permit.
Its program of providing advisory opinions gives practical,
timely guidance to prudent government employees or counsel who
ask questions before engaging in conduct about which the law is
unclear.
Still, in recent years, we have seen ambiguities in the
Hatch Act lead to confusion in government ranks and uneven
enforcement by the Office of Special Counsel. In addition, a
lot has changed over 20 years and the time is right to consider
amending the law to address its ambiguities, to keep pace with
technology and to address the areas where the law does not work
well or doesn't meaningful serve its purposes.
The touchstone of reform ought to be striking the right
balance between First Amendment rights and reinforcing those
provisions of the Hatch Act that most serve its goals, namely
that Federal employees may not use their official authority or
influence to interfere with the outcome of an election, may not
solicit or accept political contributions, may not pressure
subordinates or colleagues to engage in political activity, may
not solicit or encourage political activity by anyone within
the business before their agency and may not use official
resources towards political ends.
With these principles in mind, I believe that necessary and
sensible Hatch Act reform would include the following changes.
One is lift the prohibition on State and local employees
running for political office. All three of the bills proposed
so far include this commonsense reform. This arbitrary
restriction only on State and local officials whose jobs are
supported by Federal funds taxes the resources of the Special
Counsel without appreciably advancing the goals of the Hatch
Act.
Two, introduce graduated sanctions to address minor
infractions as proposed by Representative Cummings. Most
government employees try to play by the rules. If they
mistakenly wear a campaign button in the office, a warning
should be sufficient to vindicate the law.
Three, treat outside political communications during the
work day from personal smartphones and BlackBerrys in the same
manner as personal phone calls and emails. Technology has made
it possible to quickly send political messages to outsiders
without using government resources or significantly disrupting
the sender's work day. It has also made the requirement that
when employees leave the Federal building to do so impractical
and unenforceable.
Political communication should be permitted in the same
manner that personal calls are permitted as long as they are
not excessive, are not directed to other employees or otherwise
violate the Hatch Act.
Four, Federal employees who wish to post permissible
political messages on blogs or social media pages should not
have their government title appear on those pages even if only
in their profile. In my view, there is too much risk that the
title will land undue weight to the otherwise personal
political views of the employee. Similarly, government
employees whose title appears on their social media pages
should be responsible to remove any political fundraising
solicitations placed on their page by others within a
reasonable time.
Five, the definition of who is included in the relaxed
restrictions for certain White House employees and senior
government officials should be clarified. First, there should
be a presumption that all appointed White House employees fall
within the relaxed restrictions. Second, all White House
employees, except perhaps those in the national security area,
should be permitted to assist the President and Vice President
in their political activities.
Under the standards employed by the Office of Special
Counsel in its January 2011 report on the Bush Administration,
only high level White House employees can assist the President
with the preparation and execution of a political trip which
simply is not practical.
Sixth, and finally, recent controversy involving both
parties demonstrates the importance of properly allocating the
cost of political and official events to ensure that the public
is not underwriting political activity. The classification of
events whether official or political should be done primarily
according to objective criteria about the origin and execution
of the event rather than focusing on the subjective motivation
behind them. Some questions aimed at evaluating these events
objectively are set forth in my written testimony.
Once again, I appreciate the Committee's bipartisan efforts
for meaningful Hatch Act reform and the opportunity to share my
thoughts with you today. I would be happy to address any
questions you might have.
[Prepared statement of Mr. Coffina follows:]

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Mr. Ross. Thank you, Mr. Coffina.
Mr. Adler, you are recognized for five minutes for an
opening.

STATEMENT OF JON ADLER

Mr. Adler. Thank you, Chairman Ross, Ranking Member Lynch,
distinguished members. This is a rare instance for me where I
actually agree with everyone on my panel. Therefore, I don't
think I don't want to waste everyone's time by sort of
restating what has already been said. I am proud everyone is
working so well together to address this important issue.
I mean the main theme here is we don't want the Hatch Act
to become a hatchet act. I think, based on the recommendations
expressed, we are definitely going in the right direction. I
think the Hatch Act Modernization Act put forth by Ranking
Member Cummings is on point. It is a proactive effort to
address the serious issues from my perspective and my
membership, representing 26,000 members of the Federal law
enforcement community, the concerns in terms of the penalties,
as Mr. Coffina stated, having those lesser penalties to address
an issue of a button, a screensaver or something where
technically it might be a violation of the current statute but
it doesn't rise to the level of termination. Certainly it
should ease the resource pressures on Ms. Lerner and her very
well organized staff.
Having said that, I think it is more important to yield my
time so that we can get to questions and other comments that
are relevant to moving this forward to a collective
understanding and proper conclusion.
I am here to answer any questions. Thank you.
[Prepared statement of Mr. Adler follows:]

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Mr. Ross. Thank you, Mr. Adler.
I also want to echo your sentiments about the cooperation,
especially with my colleagues and Ranking Member Cummings for
his bill in this regard.
Ms. Lerner, with regard to investigations under the Hatch
Act and violations, how much money does OSC spend annually
investigating State and local Hatch Act claims?
Ms. Lerner. It is tough to put a number on it. I can tell
you our agency's entire budget is around $18.5 million. We have
about 110 employees altogether and have 8 employees in our
Hatch Act Unit. Our whole agency gets about 4,600 individual
cases per year through all of our program areas, and the
numbers are going up pretty significantly. We have had a 10
percent increase.
Mr. Ross. Would you say exponentially?
Ms. Lerner. Yes. We are seeing exponential growth in every
single one of our program areas.
Mr. Ross. In terms of complaints?
Ms. Lerner. In terms of complaints in the Hatch Act Unit,
in every one of our units. We also do disclosures, we do USRO,
we do prohibitive personnel practices like retaliation, so we
are really stretched.
Mr. Ross. Could you pinpoint dollarwise? Is it hard?
Ms. Lerner. I really hesitate to put a dollar number on it.
I can give you specific numbers about the number of cases that
we have in our Hatch Act Unit.
Mr. Ross. Would you say the State and local Hatch Act
workload is greater than, equal to or less than for Federal
Hatch Act violation investigations?
Ms. Lerner. It is about 45 percent of our entire Hatch Act
load. Our Hatch Act load right now is over 1,000 cases,
Federal, State and local, every year and about 3,000 advisory
opinions every year.
Mr. Ross. Would you say the State and local investigations
under the Hatch Act is interfering with the Federal?
Ms. Lerner. Absolutely.
Mr. Ross. No question about it?
Ms. Lerner. Absolutely. We have serious cases, the coercion
cases, the misconduct cases. As I mentioned, where I would
really like to be able to put some resources is in the
education and outreach so we can prevent these things from
happening in the first place. So many people, you heard the
testimony today, people don't understand the Hatch Act. If we
are going to hold employees responsible for being in
compliance, we have an obligation to them to do some outreach
and education.
Mr. Ross. Another aspect of the Hatch Act that is
disconcerting to me, especially this being an election year,
have you found the candidates for political office use the
Hatch Act against each other during these elections?
Ms. Lerner. Absolutely.
Mr. Ross. Is it pretty prevalent?
Ms. Lerner. I would say it is. We are seeing this happen at
both the individual level with individual candidates. We often
get complaints from an opponent in a political race, not just
Republicans versus Democrats. Sometimes it is in the primary
and a Democrat will file a complaint against a fellow Democrat
or a political organization.
Mr. Ross. The mere allegation alone is damaging enough
regardless of the substance?
Ms. Lerner. Absolutely.
Mr. Ross. I understand there is an OSC investigation
involving Secretary Sebelius with regard to a gubernatorial
campaign. Do know the status of that investigation?
Ms. Lerner. We talked with your staff about the status of
that investigation which has been reported publicly. We
received Chairman Issa's letter which alleged a potential
violation of the Hatch Act. As I mentioned, we discussed this
with the committee prior to the hearing but in accordance with
our policies, I cannot really add anything further at this
time.
Mr. Ross. Can you comment as to when you think that report
might be issued?
Ms. Lerner. It is being actively investigated and I
hesitate to give you a date that may or may not be right. As I
mentioned, we have eight lawyers to cover all of our Hatch Act
cases, but we are making this one obviously a priority. We will
get through it very quickly as we can.
Mr. Ross. Thank you.
Mr. Greiner, with regard to the allegations against you and
the violations found, specifically what was the amount of the
grants involved?
Mr. Greiner. I can go back to each of the grants. There
were four grants, they were all multi-jurisdictional type
grants. We try to do that to get the grants. The grant that was
the focal point of the decision by the ALJ was a $400,000 grant
for a dispatch center that had nothing to do with the police
department.
Certainly we get the benefit of the dispatch center being
there but it was a cooperative effort that was put together to
try and get some grant money for State communications sites to
improve the connection between police and fire departments in
two counties. We had already built a new building with that.
Mr. Ross. Upon receipt of the grant money, did you have any
control over where it went?
Mr. Greiner. No, and not one penny came to the police
department I managed.
Mr. Ross. You had absolutely no authority over the delivery
or distribution of the grant money?
Mr. Greiner. Not one penny.
Mr. Ross. You talked about several hundred thousand dollars
with regard to lawyer fees. How much did it personally cost you
to defend yourself in this confrontation?
Mr. Greiner. I was out of pocket over $30,000 personally
before the Office of Special Counsel filed a complaint against
the city and then the city picked up the remainder of the tab.
Mr. Ross. Thank you. My time has expired and I will now
recognize the Ranking Member of the full Committee, Mr.
Cummings from Maryland.
Mr. Cummings. Thank you very much, Mr. Chairman.
Ms. Lerner, on March 7, I introduced the Modernization Act.
The legislation implements two recommendations the Special
Counsel made for immediate reform. First, the legislation
eliminates the Hatch Act prohibition on State and local
government employees running for office. I understand that is
very important to you. This would take the Federal Government
out of the business of telling State and local government
employees such as Mr. Greiner whether they can serve their
country by running for elected office.
Ms. Lerner, can you explain why eliminating this provision
is so important to you and your office?
Ms. Lerner. Sure. I would like to start though by thanking
you, Mr. Cummings, for introducing the Hatch Act legislation. I
appreciate that very much. Your efforts are truly appreciated.
The reason this is so important as I mentioned in my
opening statement, there are a number of reasons the State and
local provision is so important to my office. First, just from
the standpoint of fairness, I don't think I have talked to
anybody, either here in Congress or in government, who thinks
that it is fair that people cannot serve their local
communities just because they are employed by State or local
government that receives some money. It can be a very small
amount or they can just be touched by Federal funds, so there
doesn't have to be a strong connection, and then they can't
serve, they can't run for office.
It is first the issue of fairness. Is this really something
we want to do? Is it the proper role for us to be telling State
and local governments how their employees should be behave? As
I also mentioned, most States have their own rules for how
their employees should behave. Most states have their own rules
that would cover this issue. They have either mini-Hatch Acts
or ethics rules. I think it is appropriate for those States and
localities to enforce prohibitions on their own employees.
Mr. Cummings. I am sure you have taken a look at those
State provisions. There was an intent when this Hatch Act was
developed to address certain issues. I guess what I am trying
to figure out have circumstances changed over time and they
become outdated? If the States are doing this, what is the
difference between what a State is doing and what the feds are
doing now? Do you follow me?
Ms. Lerner. I am. I think what has happened since this Act
was first enacted and since it has been amended is that there
has been an influx of Federal funds into the States,
particularly after 9/11 in the law enforcement area. Now
virtually every law enforcement agency at the State and local
level receives some Federal funds. The breadth of this Act is
much, much larger than it was ever intended.
There are sort of three parts to this. One is the running
for partisan political office and that is the only thing the
legislation would strongly affect. The coercion issue and the
improper use of office would still be there, so we would have
enforcement ability in those two areas. As far as I can see,
there is no real purpose in saying someone cannot run for
office just because they happen to work for a State or local
government that receives some Federal funds or that their job
is touched by some Federal funds.
Mr. Cummings. What was the original intent? Do you
understand what I'm saying was it to try and block people from
running for office? Was it that people in office were saying we
don't want people running against us? Are you following what I
am saying?
Ms. Lerner. I think the original intent was to try and keep
politics out of the civil service. Frankly, it is having the
opposite effect now. It is becoming much more politicized
because of this provision. I think it was never intended to do
that and these consequences were unforeseen at the time.
Mr. Cummings. So you are seeing situations where you have a
law, you have to enforce it, but you yourself look at it and
say, wait a minute, there is something awfully wrong here?
Ms. Lerner. Yes. Within a couple months of my taking office
in June, I was having conversations I think with both you and
Chairman Issa about this law. We sent over some proposed
legislation in October to try and resolve it. We are going to
enforce the law. The way the law reads right now, it is not
something I am particularly comfortable doing but we are going
to enforce it because that is our job, but I sure hope you all
can change it.
Mr. Cummings. Thank you.
Thank you, Mr. Chairman, for your courtesy. I really
appreciate it.
Mr. Ross. Thank you.
I now recognize the gentleman from Massachusetts, the
Ranking Member of the Subcommittee, Mr. Lynch, for five
minutes.
Mr. Lynch. Thank you, Mr. Chairman.
I want to thank all the witnesses. It is unusual that we
get a whole panel that basically agrees and as well, that
agreement is reflected up here on the dais. Since we all agree
this is a good idea, we will probably have to kick it upstairs
to party leadership and they will come up with some reasons why
we really don't agree because this can't happen.
Mr. Adler, first of all, I want to acknowledge that this is
actually National Police and Peace Officer Week. From the dais
on both sides, we want to acknowledge the fact that you and
your members do some terrific work in protecting us and the
government, the Capital and also the Federal Government and the
Nation. We appreciate the risk that you confront every single
day. These have been some tough months for law enforcement all
across the country. Our prayers and thoughts go out to you and
your members. We really appreciate the work you do every day.
You were very economic in your remarks initially, so I have
to punish you for that. In terms of education on the Hatch Act,
as Counsel Lerner has pointed out, after 9/11 a lot of Federal
money got pushed out to both police and fire, fire grants, cops
grants, so now this connection, however tenuous it might be, is
there and precludes people from running for office and other
limitations are put on you as well.
How do your folks get educated on the Hatch Act? Are they
advised in advance or is it when they trip up and all of a
sudden it comes down on them?
Mr. Adler. Maybe it is a whisper in advance. I think we
could learn from the other areas of training that we get by way
of ethics, sexual harassment, computer security where we get
these online training sessions where we can actually see
something. I think typically what happens is whether it comes
down from the Attorney General or there is some memo that will
come down prior to an election, right about now, that gets
circulated. It could be a three, four or five page letter, fun
size probably eight, which is a challenge for me, and although
it may be well written and thorough, it doesn't exactly rise to
the same level or the same effect that other types of training
the government delivers again by way of ethics training and
other areas of importance.
As Ms. Lerner said, there is an absolutely better outreach
and education. I think certainly we could use examples and Mr.
Coffina hit upon it, a screen saver issue, a Facebook posting.
We now have people authorized to work out of their home, so if
during your lunch period at home, which I guess they decide,
they go on their computer and make a Facebook entry, do they
really understand what they are doing?
I think, in general, everyone has sort of a broad sense as
to what the Hatch Act is, but when you break it down, as Ms.
Lerner made clear, we are putting her on the spot when someone
technically violates the Hatch Act unwittingly, that they are
subject to termination, which is unfair and unreasonable.
Mr. Lynch. By having a graduated penalty process where some
of the very minor you know, wearing a pin as Mr. Coffina
indicated, it is the death penalty, basically severance from
employment is what has to happen. That graduated penalty
process may be a warning, take off the button, that type of
thing would certainly lighten the load for Ms. Lerner and her
staff.
This all seems to be commonsense. You would think we should
be able to come up with these modest and I think very sound
recommendations.
I am going to suspend as well. Thank you. I yield back.
Mr. Ross. Thank you, Mr. Lynch.
I now recognize the gentlelady from the District of
Columbia, Ms. Norton, for five minutes.
Ms. Norton. Thank you very much, Mr. Chairman.
I appreciate you invited a witness from the District of
Columbia and a particularly well qualified witness so we can
get to this longstanding issue.
This House actually, I think in my first term in Congress,
actually changed the Hatch Act not to apply to the District.
The bill did not pass the Senate and here we are again more
than 20 years later.
Mr. Nathan, at page six, you say, ``I stated earlier, the
legislation should be amended so that similar to Congress, the
Hatch Act does not apply to the District's legislative or
judicial branches.'' Do you have any issue with the legislation
with respect to the District of Columbia as it is now framed in
the bill?
Mr. Nathan. We support the bill which would move the
District of Columbia away from being treated as a Federal
agency and being treated more like a State and local
jurisdiction and obviously allowing people to run in partisan
elections.
I think it could be a tweak to make it clear that when it
talks of the D.C. Government, it is talking about the Executive
Branch of the D.C. Government. We would be prepared to supply
some language to that effect because the Federal Hatch Act does
not apply to the judiciary or to legislative personnel, not
only members of Congress but staff as well. I think it ought to
be parallel.
Ms. Norton. I would appreciate receiving your suggestions
on that modification.
Mr. Nathan. I would be delighted.
Ms. Norton. Mr. Coffina, I must tell you, you waded into an
area that I don't envy you for doing. That has to do with the
President and his employees as they make trips during campaign
season. I must tell you it reminded me of what we go through
here when we are putting out a newsletter and we have to see
what words can or cannot be used. It is a painful exercise.
You speak about the President's trip on student loans, I
think. On student loans we get into a subject that comes up
during every election. It is perhaps the most partisan of
issues. You suggest there is a way to somehow thread this
needle. I think it is important that you point out examples
that are indeed troublesome.
In the case of student loans, this was a matter that was
not in the Republican budget at all and the President kind of
barnstormed where you might expect him to, student campuses,
and discussed this issue. It was the first time the issue had
been discussed in the Congress. It was profoundly an official
issue. You say, I think with great fairness, that this matter
involves the subjective, second guessing, but you do suggest
there are ways to solve it.
I have my doubts, Mr. Coffina, because you indicate there
is an authoritative legal opinion from 1982 and I can tell you,
I don't think anybody can find any campaign since 1982 where
this was not a major issue for the other side, so I have my
doubts about what to do about it. Your notion about the theme
of the remarks, free existing or not, again, I am struck with
how this might be quite unenforceable.
I hate to see something that may be a violation not be
tagged but I must say there has to be a way other than going
through a list the way we do when we go to franking to see if
that word or this word should have been used or that detour or
why they do this or was it because of this or that reason. It
strikes me that we are into a thorn here.
I would like to note if you really think that these
suggested notions of how to evaluate whether the trip is
political or not. Do you suggest they haven't been used? Has
anybody ever sought to enforce these? Has there been an
enforcement action that anybody paid attention to?
Mr. Coffina. Congresswoman, I personally sympathize with
the complexity that you have described, having dealt with this
myself when I worked in the White House trying to sort out, as
I had events and expenses I needed to approve, is this
political, is this official and what are standards to apply. It
is very difficult.
Unfortunately, the current standards in place for it don't
go anything beyond saying it is a subjective evaluation and
must necessarily turn on the facts. What I tried to do in my
written testimony, I tried to introduce and reflect the
objective criteria I tried to apply when I was making these
determinations myself, understanding that subjective motivation
and where did this event come from is a part of it.
There are certain yes or no questions that you can ask to
try to say which is the better way to classify this, what is
the better way to make sure the expenses for this trip are
properly borne by the public or properly borne by a political
party. I was looking for objective criteria that might help
guide that.
Ms. Norton. Mr. Coffina, you say tried to use these
criteria when you were in the White House. Were you able to use
them? Did others in the White House use them? Were they useful
then?
Mr. Coffina. Yes, I found them to be useful. I found in
evaluating, for example this was an issue in the Office of
Special Counsel's report from 2011, if a surrogate event took
place in a district of an incumbent, the question was is this
politically motivated to help the incumbent? This is an
objective question. Where did the event come from? Where did
the request come from? Did the member's official office invite
the President or a surrogate to participate in that local
official event or did it come and originate within a campaign
staff?
Mr. Ross. Unfortunately, the gentlelady's time has expired
but we will be able to supplement the record with questions to
the panel as well.
With that, I will recognize the gentleman from Virginia,
Mr. Connolly, for five minutes.
Mr. Connolly. Thank you, Mr. Chairman.
Thank you to the panel for some thought provoking
testimony.
Ms. Lerner, you heard Mr. Coffina enumerate a number of
what he characterized as practical, common sense changes to the
Hatch Act that would make it more workable. What is your
reaction to his enumerated list?
Ms. Lerner. In the category of political travel, I want to
just note that we did issue a very extensive, thorough advisory
this past fall on October 6, 2011. We put a lot of thought into
how best to give guidance to the government and to employees
about political travel. I think that really has, in many ways,
moved the ball forward and provided the type of clarity that
has been needed. Ms. Galindo-Marrone can address that issue a
bit more as well.
Mr. Connolly. But did you have any major exceptions to Mr.
Coffina's list? You have already testified you want to see
changes to the Hatch Act?
Ms. Lerner. I do. I have to tell you quite honestly, we are
not seeing a lot of cases about these other peripheral issues--
political travel, social media, and frankly the Facebook stuff
hasn't been an issue. Email is a little bit more of an issue.
On the social media issue, certainly the Internet and social
media have dramatically changed the way we gather and share
information and the way Federal employees use it has
implications, but as an enforcement issue, it really hasn't
been much of an issue. We have had maybe two or three of these
cases.
Mr. Connolly. In response to Mr. Cummings' question to you,
he asked why does the Hatch Act cover State and local
government, what was the thinking? Your response was, ``I think
the thinking was to try to protect civil service from partisan
overt political activity.'' God knows we have seen in American
history, State and local governments used as instruments of a
political machine, organization or even candidates. That goal
might be a worthwhile one but the question is do we need a
Federal umbrella to be dictating to State and local governments
how they want to conduct their own business?
Did I understand your answer? You said that was the purpose
and then you said, but it seems to have the opposite desired
effect. What did you mean? What is the opposite? Are State and
local governments being taken over by political machines?
Ms. Lerner. Let me clarify that the only aspect of the
State and local candidates' provision that we are advocating to
reform is the ability for folks to run for election, partisan
political election. They can already run for non-partisan
positions.
Coercion matters would still be within our jurisdiction.
Improper use of political office would still be covered. The
stuff that I think was originally intended to be covered on the
State and local level would not be affected at all.
The reason that the running for partisan political office
is creating a lot more angst is because it is being used
primarily as a weapon. We can only take on those cases when a
complaint is filed with our office. We don't go looking for
them. The folks who file these complaints, for the most part,
are political opponents. It is coming within party, so in a
primary a Democrat could file a complaint against a fellow
Democrat who they are running against.
Mr. Connolly. Just an observation, running for partisan
political activity as opposed to running for non-partisan
political activity, in Virginia many cities and many towns run
ostensibly on a non-partisan basis, getting around the Hatch
Act.
Ms. Lerner. Yes.
Mr. Connolly. It is an enormous fiction that everybody
understands. For example, Mr. Cantor, the Majority Leader in
this House, one of his key aides is an elected official in
Fairfax City in my district, does a good job, but there is no
fiction about what party affiliation he has and what he does on
his day job. While it is a useful tool, I guess, to get around
the Hatch Act, I am not sure it actually achieves the desired
outcome.
Ms. Lerner. The Mayor of Chicago is a non-partisan
election.
Mr. Connolly. Yes, he is. He is very non-partisan. I know
him personally.
Ms. Lerner. Whoever happens to be in that position at the
time. You raise an important point and it creates this feeling
of unfairness. We have gotten lots of complaints from folks
saying, you didn't tell the person in the county over that they
couldn't run and they work for the government. We get a lot of
those complaints. We have to say we are really sorry but in
that county, school board is non-partisan. It creates this
feeling about arbitrariness and unfairness. It shouldn't matter
what county you live in.
Mr. Connolly. Thank you, Mr. Chairman.
Mr. Ross. Thank you.
Before I recognize our next member, I recognize Mr. Lynch
for submission of a report.
Mr. Lynch. Thank you, Mr. Chairman.
I would ask unanimous consent that the Committee may accept
this testimony, ``The Hatch Act, Options for Reform,'' a
statement submitted for the record by the Federal Managers
Association.
Mr. Ross. Without objection, it shall be made a part of the
record.
Mr. Ross. Thank you.
I now recognize the gentleman from South Carolina, Mr.
Gowdy, for five minutes.
Mr. Gowdy. Thank you, Mr. Chairman.
Mr. Chairman, it has been 15 years since I was subject to
the Hatch Act so forgive me if I am playing catch-up a little
bit. Who would be the most knowledgeable panel member for me to
pose my question to?
Mr. Ross. Ms. Lerner.
Ms. Lerner. It depends on what your question is about.
Mr. Gowdy. It is kind of remedial. My understanding is
Executive Branch employees may not solicit campaign contributes
from their peers.
Ms. Lerner. That is right.
Mr. Gowdy. Are there any exceptions to that?
Ms. Lerner. I am actually going to punt this one to Ana
Galindo-Marrone who is the Chief of our Hatch Act Unit and
knows every detail about how the Hatch Act affects Federal
employees.
Mr. Gowdy. That sounds like a great person to punt it to.
Are there any exceptions to that general rule?
Ms. Galindo-Marrone. Good morning, Congressman.
First, the solicitation prohibition is broader than just
prohibiting Federal employees from soliciting other colleagues.
The prohibition extends to anyone, so no Federal employee in
the Executive Branch can solicit, accept or receive political
contributions. The one exception concerns Federal labor
organizations and Federal employee organizations.
Mr. Gowdy. That is what I thought. Why that exception?
Ms. Galindo-Marrone. I am not sure of the reason why.
Mr. Gowdy. You were just described as the most
knowledgeable person on this issue. If you can't tell me why
there is an exception for Federal labor organizations, who can
I ask?
Ms. Galindo-Marrone. I reviewed very briefly last night in
preparation for this the legislative history and it is somewhat
scant in terms of what Congress was thinking when the exception
was introduced. It does have some limitations, so there are
some qualifiers in terms of the exception if you want me to go
over that.
Mr. Gowdy. Sure.
Ms. Galindo-Marrone. The Federal labor organizations,
although the members of those groups can solicit, they still
cannot solicit, accept or receive while on duty or in the
Federal workplace, the solicitation.
Mr. Gowdy. Is there something called official time?
Ms. Galindo-Marrone. Correct, but under the Hatch Act, even
official time, union official time is considered on duty for
purposes of the Hatch Act.
Mr. Gowdy. So you still cannot solicit?
Ms. Galindo-Marrone. Correct.
Mr. Gowdy. If you are at a United States Attorney's office,
you cannot solicit, participate, but can you show up at a
political event after hours?
Ms. Galindo-Marrone. After hours, any Federal employee can
attend a political event.
Mr. Gowdy. Can their name be on a host committee?
Ms. Galindo-Marrone. It cannot. I was going to explain in
terms of the union exception, the solicitation is only specific
to the union's pact and cannot be directed at anyone that is a
subordinate, so when terms of lets say a fundraising event
where there is a host committee, typically even union members
will not be able to be listed as a member of the host
committee.
Mr. Gowdy. I am still trying to understand why there would
be an exception for Federal labor organizations. Could you
hazard a guess?
Ms. Galindo-Marrone. I could try to hazard a guess if I did
some more research and maybe we supplemented a response after
today's hearing.
Mr. Gowdy. Mr. Chairman, you are the most knowledgeable
person I know.
Mr. Ross. If I am you reference on that, we are not in good
shape here.
The gentleman from Massachusetts.
Mr. Lynch. I might be able to illuminate a little bit. Up
until 1993, I believe, the United States Postal Service was
prohibited, any postal worker from getting involved in a
campaign at all. At that point, letter carriers, clerks who
really had a rather peripheral role in the Federal
appropriations process were granted the ability, they were
given relief under the Hatch Act. This may have been something
that happened at that time where we basically removed them from
limitations on the Hatch Act. This may have been something that
happened at that point.
Mr. Gowdy. I thank the Ranking Member. To your knowledge,
is it limited to just postal employees, this exception?
Ms. Galindo-Marrone. It includes all Federal labor
organizations and Federal employee organizations that had a
pact in existence in 1993 when the Act was passed.
Mr. Gowdy. Mr. Chairman, can I ask one more question?
Mr. Ross. Without objection, yes.
Mr. Gowdy. I want you to assume there is a county employee
who wants to run for coroner, which is still an elected
position in South Carolina. Some people call them medical
examiners, some jurisdictions have forensic pathologists. We
still have coroners. The office that employs this putative
coroner receives some Federal grant monies.
Does this person who seeks to run for partisan office as
coroner have to resign his or her job, take leave without pay,
not campaign during working hours? What are the limits, even if
it is just a small amount of a Federal grant that goes to an
office that happens to employ this person, how would he or she
be impacted?
Ms. Galindo-Marrone. If the individual has duties in
connection with the Federal grants that are being received by
the office, that is the first qualifier. It is not enough that
the agency received Federal grants, the individual would have
to have duties in connection with the Federally-financed
programs.
If that is the case, then currently, as the law reads, the
individual would have to resign from their State or local
employment in order to run for partisan office.
Mr. Gowdy. Is there any weighing of how much connection
that person would have? Maybe they had 5 percent supervisory
role or is it just a bright line test?
Ms. Galindo-Marrone. Currently, there is some case law in
terms of a de minimis exception and the case law on that point
is less than one-tenth of one percent of the person's time in
connection. Typically, in the office, we look at 2 percent or
less to be de minimis.
Mr. Gowdy. Thank you, Mr. Chairman.
Good morning to the Attorney General from the District of
Columbia.
Mr. Nathan. Good morning. It is good to see you again.
Mr. Ross. Thank you.
I will now recognize the gentleman from Illinois, Mr.
Davis, for five minutes.
Mr. Davis. Thank you very much, Mr. Chairman.
I want to thank all of the witnesses for coming.
I believe that all of us here believe in the importance of
the Hatch Act and continuing its prohibition on Federal
employees engaging in political activity while on duty, in the
Federal workplace while using Federal vehicles.
However, we also recognize that new technology such as
laptops, andBlackBerrys and new workplace developments such as
telework have made it not always clear to employees what
constitutes on duty and the Federal workplace.
I appreciate the panelists making themselves available this
morning to discuss how we can address updating the realities of
the 20th Century Federal workplace and clarify what might be
ambiguities in the law. Ms. Lerner, you pointed out that one of
the ambiguities in the statute that the Office of Special
Counsel would like Congress to address is the definition of
political activity. You recommended that Congress codify the
definition of political activity that is currently set forth in
the Hatch Act regulations.
Could you elaborate for us why you believe this term needs
to be defined in the statute even though it is already defined
in the regulations?
Ms. Lerner. The Hatch Act regulations current define the
term as ``activity directed at the success or failure of a
candidate for partisan political office, political party or
partisan political group.'' That is 5 C.F.R. 734.101. We have
been using that definition that is in the regulations to define
what is political activity.
We think that Congress, in 1993, created a bright line rule
that prohibited most Federal employees from engaging in
political activity while on duty but they kind of missed the
step of defining what political activity means, so we have been
using the definition that is in the regs. That is a perfectly
good definition; it just seems to make sense that it be
codified.
Mr. Davis. I am thinking of situations that I have
personally known where individuals may have been working for
State government and there might have been some grant activity
from the Federal Government that funded a part of what it was
that they did. I am recalling one woman who ran for the State
Senate and she was forced to resign from her office, although
she did file a lawsuit later on after she lost and got her job
back and was compensated. I never quite understood that but
that is what happened in that particular case. Her union backed
her and they won.
Mr. Nathan and Mr. Coffina, what thoughts do you have on
Ms. Lerner's recommendation?
Mr. Nathan. My focus is on the District of Columbia. Mr.
Cummings asked the question what has changed since 1939 when
the Hatch Act was passed. With respect to the District of
Columbia, there has been substantial change because in 1939 we
had no elected officials in the District of Columbia. We had
three appointed commissioners by the President, confirmed by
the Senate and that was the full extent of it.
Now, as a result of partial home rule, we have a
Congresswoman who is elected from the District of Columbia; we
have a Mayor; we have a City Council; we have a school board;
we have our neighborhood commissioners and now the Attorney
General's Office is going to be elected.
It is important so the citizens of the District of Columbia
can elect their representatives that they be allowed to run
whether it is in a partisan or non-partisan election. I don't
think it makes any difference and that the people in those
offices or in other offices in the District can run. Our main
focus here is on ensuring that the District of Columbia under
the modified Hatch Act, under the reforms that you pass, are
not considered to be an executive agency of the Federal
Government, but a State or local government and that we be
allowed to run in partisan elections as local officials should
be as well.
Mr. Davis. Thank you very much.
Thank you, Mr. Chairman.
Mr. Ross. Thank you.
That will complete our hearing today. I would ask the
members who have additional questions to send those
supplemental questions to the panelists within the next seven
days. I will ask the panelists to respond accordingly.
With that, I want to thank you for taking the time today on
this very important issue.
This Subcommittee now stands adjourned.
[Whereupon, at 10:48 a.m., the subcommittee was adjourned.]

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