TERRE HAUTE — Arguments about the reach of the Hatch Act are nothing new.
“It’s not one of those three-paragraph laws,” said Jim Mitchell, a spokesman for the U.S. Office of Special Counsel, the federal agency in Washington that investigates and prosecutes complaints involving the Hatch Act.
The Hatch Act “has got a lot of ins and outs and that’s why it takes some time for us to investigate the circumstances [of a complaint] to find out what’s really going on,” Mitchell said.
Terre Haute looks set to become the scene of an important Hatch Act legal case.
Attorneys for Terre Haute Mayor Kevin Burke are challenging the winner of the Nov. 6 mayoral race, Duke Bennett, suggesting Bennett may not have been qualified to run for office under the Hatch Act.
If Burke’s attorneys are successful, this might be the first Indiana case where an election outcome was changed based on a Hatch Act challenge.
One of Burke’s attorneys, Ed DeLaney, said he does not know of any other case in Indiana’s past where an election was overturned based on the Hatch Act. “That doesn’t mean it didn’t happen [before in Indiana], but I don’t know if it did,” he said.
In a Nov. 13 letter to Bennett, DeLaney’s law office cited a 2004 Indiana Court of Appeals decision that overturned a local election. However, that case involved a candidate who was disqualified after it was found he had a past felony conviction; it did not involve the Hatch Act.
The Hatch Act was passed in 1939 and has been amended several times. Among other things, it prohibits federal employees from soliciting political contributions, running for office in partisan elections, campaigning, managing campaigns, making partisan political speeches or holding political office.
The “spirit” of the Hatch Act is about keeping people in government positions, or in positions supported by government, from using their power to sway elections, the OSC’s Mitchell said.
While incumbent office-seekers, such as mayors, governors and members of Congress, often have access to federal dollars, they are exempt from the Hatch Act, Mitchell said. “No incumbent could be re-elected if the Hatch Act applied to the incumbent,” he said.
Arguments involving the Hatch Act are nothing new.
In 2003, the Bush Administration warned providers of Head Start programs they could not use federal money to lobby Congress. In response, the National Head Start Association sued the Bush Administration, saying it was trying to stifle their 1st Amendment rights.
Other arguments about the Hatch Act have involved postal service employees, teachers, flight controllers, social workers and others. The constitutionality of the Hatch Act has been challenged before the Supreme Court at least three times.
The U.S. Office of Special Counsel investigates Hatch Act complaints for the federal government, but in the Burke and Bennett case, Burke’s attorneys are relying on Indiana law, not the OSC in Washington, DeLaney said.
Indiana law disqualifies anyone subject to the Hatch Act from being a political candidate and Burke’s attorneys believe the Hatch Act may have applied to Bennett while he was running for mayor.
If Bennett’s salary at Hamilton Center were paid entirely by federal money the question of whether the Hatch Act applied to him would be simple, Mitchell said. But the answer may not be so simple in this case.
“When you get up higher in an organization where you may have some things funded by a federal program and other things that are funded by endowments and other sources of funding … it becomes a little more complicated,” Mitchell said. “It really depends on the details.”
DeLaney said he believes the Hatch Act does apply to Bennett. “The reason it applies in this case is because the agency, the Hamilton Center … receives significant Head Start money,” he said. But in the end, DeLaney added, “the judge has to decide this.”
Arthur Foulkes can be reached at (812) 231-4232 or arthur.foulkes@tribstar.com.
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