The Hatch Act prohibits partisan political activity for federal employees covered by the law. So, when an employee of the Federal Aviation Administration decided to run for mayor of Albuquerque, New Mexico, he knew he might have a Hatch Act problem that could derail his federal career.
Because of these potential problems, Mike McEntee sought the advice of an FAA Ethics Counselor and the FAA’s regional counsel. He was given advice that the Hatch Act did not prohibit him from running for Mayor of the City of Albuquerque.
But events don’t always play out as planned. This federal employee lost the election for mayor, has been charged with a violation of the Hatch Act and received a suspension of 120 days, and has now lost a court decision which upheld the finding of the Merit Systems Protection Board regarding the Hatch Act violation.
The problems started when various advertisements, press releases and newspaper editorials identified McEntee as a conservative Republican candidate. The decison from the Court of Appeals for the Federal Circuit quoted one newspaper article’s statement that read: “”McEntee, whose campaign has struggled to catch fire, is eagerly wrapping himself in the Republican flag.”
Moreover, observed the court, “At no time during the campaign did McEntee disavow his Republican identity or refute or refuse the assistance, financial or otherwise, of the Republican Party structure.”
In August 2001, McEntee was contacted by the Office of Special Counsel (OSC). He was advised that OSC believed he was violating the Hatch Act and was given the option of resigning from his federal job or quitting his campaign for mayor. McEntee took the position he was not in violation of the Hatch Act and pressed on with his campaign. OSC sent him a letter giving him a date by which to resign or publicly resigning from the campaign.
After the election, OSC filed a complaint with the MSPB and sought to have McEntee removed from his federal position. The Board ruled that partisan political politics had entered the mayor’s race and that there was a violation of the Hatch Act. The good news for McEntee was that the Board concluded he should not be fired and, instead, went with a suspension of 120 days.
McEntee appealed the decision but without success. The decision “[A]ffirm[ed] the Board’s determination that McEntee violated the Hatch Act by running as a candidate for election to a partisan political office and by knowingly soliciting and receiving political contributions.”