Topic:
CONSTITUTIONAL LAW; HATCH ACT; MUNICIPAL OFFICIALS/EMPLOYEES; FEDERAL OFFICIALS; STATE OFFICERS AND EMPLOYEES;
Location:
PUBLIC EMPLOYEES - POLITICAL ACTIVITY;

OLR Research Report


December 13, 2004

 

2004-R-0910

PUBLIC SECTOR EMPLOYEES SERVING AS PUBLIC OFFICIALS

By: Kevin E. McCarthy, Principal Analyst

You asked for background on federal and Connecticut laws restricting political activities of public employees, including the rationale for these laws.

SUMMARY

Federal law (the Hatch Act, 5 U.S.C. 1501-1508) restricts the political activity of executive branch employees of the federal government and state and local government employees who work in connection with federally funded programs.  It specifies the types of political activities employees may and may not engage in. All affected employees can register and vote, contribute money to political organizations, and run for nonpartisan office. Most federal employees are permitted to take an active part in political management (e.g., hold office in political parties) and political campaigns, but none are allowed to run for partisan office or engage in political activity while at work. The U.S. Supreme Court, in upholding the act, found that Congress's intent was to provide better public service by requiring federal employees to abstain from partisan activities and insulating them from political pressures.

State law regarding the political activities of state and municipal employees is broadly similar to the Hatch Act. For example, both state law and the Hatch Act prohibit public employees from using official authority to influence elections and coercing other employees to pay or contribute anything of value for a political purpose. However, state law generally allows state and municipal employees to seek and hold partisan political office. It appears that the primary rationale for legislation adopted from the mid 1970s through the 1990s giving public sector employees greater rights to become politically active, including allowing them to run for political office, was to grant them the same political rights as other citizens.

FEDERAL LAW

Federal Employees

The Hatch Act specifies permitted types of political activities for federal executive branch employees. In most cases, federal employees can, among other things:

1. be candidates for public office in nonpartisan elections;

2. register and vote as they choose;

3. assist in voter registration drive;

4. contribute money to political organizations;

5. attend political fundraising functions;

6. sign nominating petitions;

7. campaign for or against referendum questions, constitutional amendments, and municipal ordinances;

8. campaign for or against candidates in partisan elections; and

9. distribute campaign literature in partisan elections.

However, these employees may not:

1. be candidates for public office in partisan elections;

2. use official authority or influence to interfere with an election;

3. solicit or discourage political activity of anyone with business before their agency;

4. solicit or receive political contributions (with certain exceptions); and

5. engage in political activity while on duty, in a government office, wearing an official uniform, or while using a government vehicle.

More restrictive provisions apply to federal employees in certain sensitive positions, such as administrative law judges, and in specified agencies, such as the Federal Bureau of Investigation. These employees may not engage in partisan political management and partisan political campaigns. A U.S. Office of Special Counsel Website, http://www.osc.gov/ha_fed.htm#may, provides additional information on prohibited and allowed activities for federal employees.

State Employees

The Hatch Act applies to executive branch state and local employees who are principally employed in programs financed in whole or in part by the United States or a federal agency (5 U.S.C. 1501- 1508). Employees who work for educational or research institutions that are supported in whole or in part by a state or its political subdivision are not covered by the act, even if they are also financed by the federal government. The law also does not apply to mayors or unclassified elected department heads (5 CFR 151.101 to 151.122).

Affected employees may not:

1. be candidates for public office in a partisan election,

2. use official authority or influence to interfere with or affect the results of an election or nomination, or

3. directly or indirectly coerce contributions from subordinates in support of a political party or candidate.

If an affected employee violates these provisions, his agency must dismiss him or risk losing federal funds. Connecticut challenged this provision as violating the employee's constitutional right of political association as well as the Tenth Amendment and the equal protection clause of the U.S. Constitution. The challenge failed (Conn., Dep't of Human Resources v. U.S. Merit Service Promotion Board, 718 F.Supp. 125 (D. Conn. 1989), aff'd mem., 896 F.2d 543 (2d Cir. 1990), cert. denied, 498 U.S. 810 (1990).

On the other hand, affected employees may:

1. run for public office in nonpartisan elections,

2. campaign for and hold office in political clubs and organizations,

3. actively campaign for candidates for public office in partisan and nonpartisan elections, and

4. contribute money to political organizations and attend political fundraising functions.

Rationale

The U.S. Supreme Court, in upholding the constitutionality of the Hatch Act, found that “the end sought by Congress through the Hatch Act is better public service by requiring those who administer funds for public needs to abstain from active political partisanship,” Oklahoma v. US Civil Service Comm'n., 330 US 127, 143 (1947). The Court has also found that the act reflects Congress's goal that employment and advancement in government service not depend on political performance and that governmental employees be free from political pressure, US v. National Treasury Employees Union, 513 US 454 (1995).

STATE LAW

State Employees

A person employed in the classified service (the vast majority of executive branch employees) or the judicial department may vote as he chooses, express his opinion on political subjects and candidates, and participate actively in political management and campaigns. This may include membership and holding office in a political party, making speeches for a candidate, soliciting votes in support of or opposition to a candidate, contributing time or money to a party or candidate. He may also run for nonpartisan office. Affected employees who are not covered by the Hatch Act generally can also be a candidate for partisan local, state, or federal office. An employee who is a candidate for state office or for full-time municipal office must notify his appointing authority within 30 days of nomination. Employees who are elected to state office must resign from their employment upon taking office (CGS 5-266a). Furthermore, Connecticut Constitution (Art. III, 11) prohibits a legislator from holding an appointive position in the executive or judicial branches, Stolberg v. Caldwell, 175 Conn. 586 (1978), App. dismissed, 454 U.S. 958 (1981).

In addition, a state employee may not hold municipal office where there is a conflict of interest. Conflicts of interest include, among other things, situations where the employee's agency can (1) approve the accounts or actions of the municipal office, (2) institute or recommend penalties against the incumbent of the municipal office, or (3) affect state grants and subsidies for which the municipality is eligible. Also included are circumstances where a state statute or local charter or ordinance prohibit the state employee from holding local office or where the state employee's job includes assisting himself as a municipal office holder.

An employee may not (l) use his official authority or influence to interfere with or affect the result of an election or a nomination for office; or (2) directly or indirectly coerce, attempt to coerce or advise a state or local officer or employee to pay, lend, or contribute anything of value for political purposes. Nor can an employee engage in political activities while on duty. Finally, no employee can use state funds or other resources to support or oppose any candidate, party or issue in a political partisan election.

A Department of Administrative Services Website, http://www.das.state.ct.us/HR/om/GL214D.pdf, provides additional information on the state and federal rules governing political activities of state employees.

Municipal Employees

Municipal employees may join and hold office in political parties, organizations, or clubs; campaign for candidates; and make political contributions. No employee can engage in these political activites or in the performance of the duties of an elective office while on duty or while he is expected to perform work for which he is being compensated by the town (CGS 7-421 to 7-421b).

Municipal employees (other than those covered by the Hatch Act) can run for and hold a federal, state, or municipal elective office. They can also serve on any appointed or elected local government body in towns where they live, except (1) bodies responsible for supervising them directly as employees; (2) boards of finance; (3) bodies exercising zoning, land use, or planning powers; and (4) bodies regulating inland wetlands and watercourses. Exceptions 2 through 4 do not apply if a local charter, home rule ordinance, or adopted local ordinance explicitly allows an employee to serve or if he serves only in his capacity as a member of the town's legislative body.

Rationale for Allowing Employees to Run for Political Office

As noted above, state law largely parallels the Hatch Act, and it appears that the rationale for most of the state provisions are similar to those of the federal law. In 1975, the state removed prohibitions on state employees taking part in political management or campaigns, other than running for office (PA 75-356). PA 76-424 made a parallel change for municipal employees. It appears, based on the acts' legislative histories, that they were adopted in part to reflect similar changes in the Hatch Act.

However, state law, unlike the Hatch Act, allows public employees to run for partisan office. PA 78-271 allowed state employees to run for municipal office and PA 83-36 allowed them to run for state office. PA 84-532 permitted municpal employees to seek election to partisan municipal office. PA 90-123 allowed them to run for state and federal office and prohibited muncipalities from retaliating against their employees who ran for office.

Based on the legislative histories of these acts, it appears that the primary rationale for allowing public employees to run for political office was to grant them the same rights as other citizens have. The sponsor of PA 78-271, Rep. Motto, noted that the only other class of citizens barred from running for political office were felons, and the restrictions on public employees off-duty political activities made them second class citizens. Sen. Lieberman argued that the restrictions placed “artificial constraints” on “people who happen to earn their living by working for the public.” In introducing PA 83-36, Rep. Gelsi argued that it was unfair to preclude state employees from running for state office.

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