Hatch Act Applies Even If Person Hired After Declaring Candidacy

A recent appeals court decision involving removal of a federal employee for violating the Hatch Act presents the curious fact situation that the agency actually hired the individual after he declared himself a candidate in a partisan election—something that is clearly prohibited by the Act. (Briggs v. Merit Systems Protection Board, C.A.F.C. No. 2009-3004 (nonprecedential), 4/2/09)

In May 2007 David Briggs won the Democratic primary election, becoming a candidate for township supervisor in Schuylkill County, Pennsylvania. The very next month, the Department of Labor’s Mine and Health Safety Administration (MHSA) hired Briggs. The agency then proceeded to tell him on several occasions that he was violating the Hatch Act and ordered him to withdraw from the election.

It did not take long for the Office of Special Counsel to jump into the fray. The OSC advised Briggs he must either resign from MSHA or withdraw from the election. Briggs did neither. Predictably, OSC filed a complaint with the Merit Systems Protection Board requesting Briggs be removed for violation of the Hatch Act. (Opinion pp. 1-2)

The Board’s law judge, calling it odd that the agency had hired Briggs after he won the Democratic Party’s nomination, ruled that Briggs had indeed violated the law and ordered up his removal. The AJ noted that being a candidate for a partisan political office is “one of the most conspicuous and unequivocal violations” of the law. Further, Briggs was warned repeatedly that he was in violation, which amounted to a “significant aggravating factor” in his case. (p. 2)

Apparently the full Board felt the necessity to verify that being a candidate for a partisan political office at the time of becoming a federal employee clearly violated the Hatch Act. Other than that the Board endorsed the AJ’s decision and affirmed Briggs’ removal, which is the “presumptive penalty” for violating this law. (p. 3)

Undaunted, Briggs took his case to the Federal Circuit Court of Appeals. He argued that the Hatch Act did not require him to withdraw from the election since won his party’s nomination before he became a federal employee. He acknowledged that he would not be able to run for reelection. The court’s short answer: “We disagree.” (p. 4)

In this slam-dunk decision for the Office of Special Counsel and the Merit Systems Protection Board, Mr. Briggs stays fired. No word as to whether he won his election or on whether being a fired federal employee will hurt his chances in future elections
 

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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