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November 25, 2008

Feds: Findings show Hatch Act violation

Office of Special Counsel says Bennett was not eligible; agency didn’t do investigation

By Arthur E. Foulkes

TERRE HAUTE — The U.S. Office of Special Counsel has advised that Terre Haute Mayor Duke Bennett was prohibited under the Hatch Act from seeking partisan public office when he ran for mayor in 2007.

The OSC, which is the federal agency charged with prosecuting Hatch Act cases, gave its finding in a letter to Terre Haute City Attorney Chou-il Lee last spring. The letter was made public earlier this week in a report by WTHI TV.

Bennett, a Republican, was elected mayor in 2007 by 110 votes over former mayor Democrat Kevin Burke. Burke later challenged Bennett’s eligibility to serve as mayor, arguing that the newly elected mayor had been ineligible to seek a partisan public office under the Hatch Act, a 1939 federal law that limits the political activity of federal employees.

The act also prohibits employees of some not-for-profit organizations that receive federal money from seeking partisan public office. Bennett worked as director of operations for the Hamilton Center when he ran for mayor in 2003 and 2007. Hamilton Center operates a federally funded Head Start program.

“It’s an official opinion of our office but the opinion is based in terms of … the [Vigo County Superior Court Judge David Bolk’s] findings of fact,” said Erica Hamrick, deputy chief in the OSC Hatch Act unit. Bolk ruled last December that Bennett was subject to the Hatch Act when he ran for mayor.

“We believe that as director of operations at the Hamilton Center, Mr. Bennett had duties in connection with activities funded by the federal Head Start Act. Therefore, he was covered by the provisions of the Hatch Act,” the OSC letter states.

The OSC did not conduct an independent investigation because Bennett was no longer employed at the Hamilton Center when the case came to the OSC’s attention, Hamrick said in an interview Tuesday.

Bennett has argued that Bolk’s decision, and the decision of the Indiana Court of Appeals – which also found Bennett violated the Hatch Act – was not the final word in determining Hatch Act violations. Bennett has often said only the OSC can make Hatch Act determinations and even now contends that the OSC advisory opinion does not count as an official verdict.

It is “extremely misleading” to say the OSC has rendered an opinion, Bennett said Tuesday. Because the OSC did not do an independent investigation, it’s not clear whether he violated the Hatch Act or not, he said. “They didn’t do their own investigation or anything,” Bennett said. “So we don’t know whether I was in violation of the Hatch Act or not,” he said.

The OSC’s Hamrick said its true her office normally does an independent investigation into questions regarding the Hatch Act; however, the Bennett case was “unique” because it came to the OSC’s attention after the 2007 election when Bennett was no longer employed at the Hamilton Center. “So we relied on the judge’s findings of fact to issue our opinion,” she said.

Despite the fact that the OSC relied only on Bolk’s findings of fact – which are the facts a judge uses to make a ruling – Hamrick said she has never heard that Bolk’s findings were in question. “I think the judge’s findings of fact were pretty thorough and pretty detailed,” Hamrick said. “If they weren’t, we wouldn’t have relied on them,” she said.

Still, Lee, who is Bennett’s personal attorney as well as the city attorney, said he was more concerned with other matters when he contacted the OSC than with getting the agency’s view on Bennett’s eligibility during the 2007 campaign. Lee said his request for an opinion – which he said was supposed to remain confidential – was primarily motivated by concern with rumors circulating in City Hall early last year that Terre Haute might lose its federal funding if Bennett were found to have violated the Hatch Act. Lee said he was also concerned with what agencies were empowered with enforcing the act.

“I don’t know what [Lee’s] intention was but what question was posed to us is what’s answered in the letter,” Hamrick said. “If you have a copy of that letter [from the OSC to Lee], that’s what was asked of us,” she said.

The letter, signed by Hamrick and addressed to Lee at his private law office on Ohio Street, states it is “in response to your request for an advisory opinion concerning the Hatch Act.” The letter then details why the OSC found that Bennett was subject to the act when he ran for mayor. Next, the letter states that Lee inquired as to “which agencies have jurisdiction over enforcement of the Hatch Act.”

While the letter does not state that it is in response to a question regarding the possible loss federal funding, Lee says he asked Hamrick in a January e-mail what “ramifications” Terre Haute might face if Bennett was found to have been subject to the Hatch Act when he ran for office.

In that e-mail, which Lee provided to the Tribune-Star, Lee asked Hamrick, “if it is determined that [Bennett] was in violation of the Hatch Act, would there be any ramifications at this late date?”

While Hamrick does not specifically mention this question from Lee in her letter, dated March 7, one paragraph of her letter does address the question. In that paragraph Hamrick wrote that “even if we were to investigate further and conclude that [Bennett’s] violation warranted disciplinary action, we would be unable to obtain any meaningful disciplinary action in this matter. As such we have decided not to further pursue this matter.” That was the critical issue for Lee when he contacted the OSC, he said.

Meanwhile, former Mayor Burke said Tuesday that the OSC letter is proof that Bennett has “lied to all of us.” For months Bennett has “certainly created the impression” that the OSC has not ruled that he was in violation of the Hatch Act. Burke also asks whether Bennett would have made the letter public if the OSC had found in his favor. “If it had said he wasn’t Hatched and in violation, would they have hid it for over eight months and only produced it when they got caught?” Burke asked.

Bennett said he does not know what he would have done if the OSC had found he was not subject to the Hatch Act. Such a decision may have made no legal difference since Bolk had already ruled he was in violation when the OSC made its decision, he said.

Lee argues that it is important that the OSC decision was based only on Bolk’s findings of fact. If he had wanted to make a case that Bennett was not in violation of the Hatch Act, he would have provided more than just Bolk’s findings to the Washington-based agency, he said.

“If I’m doing this … trying to get an opinion to make it look good for Duke Bennett, I’m not just going to send the findings of fact,” Lee said, adding that he would have provided other parts of the Vigo County trial court testimony. “But that’s not what I did,” he said.

Hamrick said her letter makes clear the OSC does not intend to seek any sort of sanctions against Terre Haute, including cutting off federal funding to the city.

“I think our advisory opinion makes clear that we are not going to be seeking any kind of disciplinary action and the only way that the city would lose federal funding is if we try to seek disciplinary action,” she said. “I think that the advisory opinion makes it clear that that’s not our intention.”

Arthur Foulkes can be reached at (812) 231-4232 or arthur.foulkes@tribstar.com.

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