making local government more ethical

The Conflicts of Local Government Employees Running for or Holding Elective Office

When a government employee holds or runs for elective office, there can be conflict of interest problems. The principal problem occurs when the government employee has to participate in a matter that directly or indirectly affects his or her agency or department. Whether there is a conflict depends on how direct the effect is. Another problem involves running for office in violation of the federal Hatch Act.

According to an article in the Lowell (MA) Sun, the Massachusetts ethics commission advised a police dispatcher who is a selectman for the town he works for that he may vote for a new town manager, even though the town manager will be involved in collective bargaining with his union. That is, the selectman may vote for someone who will have some control over his income, but only as part of a bargaining unit, not individually. This seems reasonable, since one vote for the manager's appointment would not seem enough to go easy on the entire bargaining unit. The same selectman regularly recuses himself on all police department matters.

But an ethics complaint was still filed against the selectman. To some people it seemed to be a conflict, even if indirect and as part of a group.

More serious, I think, are situations where an employee is in a position to affect a supervisor's job or salary, or where an employee's party position requires him or her to publicly criticize a supervisor. This is why I frown on government employees holding any sort of party office. It puts the employee in a position to affect his or her job by the act or threat of public criticism of a supervisor. The sight of an employee publicly castigating a supervisor, such as an elected mayor, especially when the job is safe, can be very ugly.

Another problem faced by some government employees who run for office is violation of the federal Hatch Act. The Hatch Act's application to local government employees, including a number of advisory opinions, is well described in an Office of Special Counsel webpage. But as the OSC told the New Haven Register last month, "application ... relies on a highly nuanced analysis of the circumstances of an individual's employment," based on federal funding of the government employee's agency and specific work.

Here is a summary of the Hatch Act's provisions, from an earlier blog post of mine. The goal of the Hatch Act, passed in 1939, was to limit partisan political activity to ensure that there are not conflicts of interest.
    The Hatch Act limits the political activities of local government employees who are principally employed by programs funded in whole or in part by the U.S. or a federal agency. The government employee:

    Cannot be a candidate for public office in a partisan election [nonpartisan elections are okay, which is good for most municipalities, but not most counties; it is also okay for an employee to be appointed to any position]
    Cannot use official authority or influence to interfere with or affect the results of an election or nomination
    Cannot directly or indirectly coerce contributions from subordinates in support of a political party or candidate
Because the penalty for a violation is serious - removal from the job or loss of federal funding - local governments often overreact and prevent employees from running for office, just in case.

The occasion for the above OSC comment was a wholesale submission of a slate of candidates to the OSC for review, an unusual move, but an understandable one, since the slate includes a town tax collector, two police sergeants, and other government employees. The town attorney considered this a waste of time, arguing that individual candidates should seek advice from the OSC. An OSC attorney agreed. But few candidates would think of seeking advice unless advised to do it, or because it became a political issue. And since ignorance of the law is taken into account in determining sanctions, it would seem in an employee's interest not to ask questions.

Where local government elections are partisan, government employees running for office should look at the Hatch Act and ask for OSC advice if they are not certain their candidacy is one that is not covered by its provisions. The effect on sanctions is not a legitimate excuse for not knowing whether you are in violation of a law.

Robert Wechsler
Director of Research, City Ethics
rwechsler@cityethics.org
203-230-2548