Legal Corner: – The Hatch Act and Avoiding Political Activity in the Workplace
By Christina Estes-Werther, League General Counsel
What is the Hatch Act and why is it important for city and town officials and employees? It is a law that prevents political activity in the workplace or during work hours, and during campaign season elected officials and employees can mistakenly use public resources to influence an election which can lead to significant penalties. It is important as we head into the 2018 election cycle to understand the federal and state laws, how they apply to you, and how to avoid any violations.
Federal Law
The Hatch Act was enacted by Congress in 1939 and prohibits federal employees (or state and local employees paid with federal funding) from engaging in certain political activity. See 5 U.S.C. §§ 7321 – 7326. The Act was named after Senator Carl Hatch of New Mexico, the primary sponsor of the legislation. The purpose of the Hatch Act is to reduce partisan influence or coercion in the workplace. As a local government official or employee, the federal Hatch Act may apply to your local position if your salary is funded by the federal government for certain programs, including public health or welfare, housing, transportation and law enforcement programs, and employees of nonprofit organizations that coordinate federal Head Start or Community Service Block Grant programs. The Office of Special Counsel has an easy to understand FAQ page that explains how the law affects local employees. According to "A Guide to the Hatch Act for Federal Employees" an employee may still exercise the right to vote, contribute money to political campaigns, attend political rallies and meetings, sign nominating petitions and be a candidate for a nonpartisan office. However, the employee cannot run for partisan office, solicit campaign contributions for partisan political office, and is prohibited from using any official authority to influence the result of an election.
Political activity is restricted when the employee is on duty, when discharging the official duties of the office or agency, while wearing a uniform or official identification of the office or position, and when using any vehicle owned by the federal government. 5 U.S.C. § 7324. If an employee violates the Hatch Act, the penalty may be removal from the position, demotion, suspension; a maximum civil assessment of $1,000; or any combination of these penalties. 5 U.S.C. § 7326.
In the age of social media, there has been an increase in violations because of the ease of instantly sending messages to large groups of people. The Office of Special Counsel has expanded its resources to include a Social Media Quick Guide to help employees avoid a violation relating to social media. The Guide specifies that an employee cannot post or tweet a message that solicits a political contribution for a political party, a partisan candidate, or a partisan political group; or use an official social media account to share partisan messages. But the restrictions are not limited to workplace accounts. An employee may not post, like, share or retweet partisan messages, or like, follow or friend partisan candidates, even from a private account, if the activity is taking place during work hours or at the workplace.
Arizona Law
Arizona’s version of the Hatch Act for cities and towns can be found in A.R.S. § 9-500.14. The law prohibits a city or town from spending or using its resources to influence the outcome of elections. "Resources" is broadly interpreted and includes public monies, facilities, vehicles, telecommunications, personnel, or anything of value. According to the Attorney General’s Office, “anything of value” includes “the use of a public employee’s time during normal working hours” although time spent outside of normal working hours is not a public resource. See Ariz. Op. Atty. Gen. No. I15-002 (July 30, 2015). However, time during work hours does not apply to elected officials because their professional roles are not readily separated from their personal lives, and their First Amendment rights allow them to respond to an inquiry as long as the statement doesn’t otherwise result in a use of a public resource. For example, a mayor doesn’t stop being a mayor when he or she leaves city hall so there are no off-duty hours. If the mayor is asked a question about a ballot measure, he or she can respond to the question without violating the law. However, an elected official is not authorized to utilize public resources to influence an election so while their time is not measured in the same manner as an employee, other factors may apply.
"Influencing the outcomes of elections" is defined as supporting or opposing a candidate for nomination or election (or recall), supporting or opposing a ballot measure (including a bond, budget or override election), and supporting or opposing a recall petition or a ballot measure petition that is not impartial or neutral. Additionally, city or town employees are restricted from using their positions to influence the vote or political activities of any subordinate employees. A.R.S. § 9-500.14.
The challenge for most cities and towns is striking the balance between providing necessary information to voters without influencing the outcome of the election. The law allows a city or town to distribute factual and neutral informational pamphlets on a proposed bond election, report on official actions of the council, and share routine city or town communications. Further, a city or town may host a government-sponsored forum or debate if the city or town remains impartial and the event is purely informational and provides an equal opportunity for all viewpoints. The only caveat is that the city or town cannot rent that same facility to another person or entity who may attempt to influence the election at the same time as the government-sponsored forum or debate.
An example of a government-sponsored debate are the town halls required by the Secretary of State’s Office pursuant to A.R.S. § 19-123. The Secretary is required to hold at least three public meetings on a statewide initiative measure and often holds these public forums at city or town halls or libraries. The hearings are open to proponents and opponents and the general public. These meetings meet the definition of a “government-sponsored forum or debate” because it is an event that is sponsored by the government and is open to the public with the purpose of informing the public about the measure. An Arizona Attorney General Opinion states that whether there is an unlawful use of a public resource to influence elections relating to a ballot measure requires examination under the following test: (1) whether the use of public resources has the purpose of supporting or opposing the measure, and (2) whether the use of public resources involves dissemination of information in a manner that is not impartial or neutral. Impartiality must be weighed on a case-by-case basis and requires examination to determine if the action contained advocacy, misleading tendencies or partisan coloring. See Ariz. Op. Atty. Gen. No. I15-002 (July 30, 2015).
The penalty for violating state law is a maximum civil penalty of $5,000 plus the recovery of any misused funds from the city or town budget, which is returned to the city or town. The person who knowingly violates or aids another person in violating the law is required to pay the penalty. City or town funds or insurance cannot be used to pay the penalties or misused funds. A court action may be brought by the attorney general or the county attorney of the county where the alleged violation occurred.
Conclusion
As we head into election season, it is important to be aware of these federal and state laws, and any personnel policies in your city or town that dictate your rights and responsibilities relating to political activity. The primary message is that your city or town may not utilize public resources for purposes of influencing the outcome of an election. If you have any questions about certain activity or want to learn more, check out the resources highlighted in this article, review your municipal policies, or consult with your city or town attorney.
