Politics not simple for public employees

By Patsy R. Brumfield/NEMS Daily Journal

It’s 2011, Mississippi’s statewide election year.
It’s also a cautionary time for state or local government employees.
The advice: Take care before you run for political office or volunteer in a campaign. Federal and state laws, as well as state employee policies, put limits on what you can do.
Years ago, state agencies such as the Mississippi Highway Patrol or the old Game and Fish Commission were notorious for using employees for rank-and-file campaign jobs.
They pressured employees to pressure friends to support certain candidates and causes.
“Until the State Personnel Board established a professional employment system for state employees, you could get yourself an agency and do just about anything you wanted to with them,” recalled Dr. Marty Wiseman, longtime director of the Stennis Institute of Government at Mississippi State University.
“Game and Fish was the big one,” he said.
“State employees were just expected to grateful and follow instructions back then,” Wiseman added. That especially applied to doing their superiors’ political bidding.
Today, that’s not appropriate – not that it isn’t still done sometimes. And neither is it legal.
And today, state agencies are prohibited from asking, pressuring or allowing any employee to be involved with a campaign at the expense of the state.
“I certainly would advise anyone with questions to ask their supervisor or look at the statutes,” said Sarah DeLoach, staff attorney for the Mississippi State Personnel Board, which oversees those policies published in the state employees’ handbook.
DeLoach also notes that state employers cannot interfere with an employee’s political participation, as long as it’s not during work hours.
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Generally, state policy prohibits employees from using state-paid vacation or leave time to “take any part whatsoever” in any election campaign, except the time it takes to cast a vote.
Unless specifically prohibited, they can be part of campaigns during regular days off and on unpaid leave.
The same goes for state employees who want to be candidates, unless they work closely with federally funded programs or agencies operating them.
That’s because the federal Hatch Act prohibits political activity by certain federal, state and local employees of agencies with federally funded programs.
In some instances, candidates have quit their jobs to avoid Hatch Act violations.
Under the Hatch Act, they need only to have begun preparations for a campaign to be considered “a candidate.”
Under state law, you are a “candidate” when you file qualifying papers or when you receive or spend more than $200 for your campaign.
Intersecting roles
Three candidates for the same statewide office show where state employment and politics intersect.
* Lynn Fitch is a state employee as executive director of the State Personnel Board. She’s expected to announce her candidacy for state treasurer this week.
She’s widely traveled the state, shaking hands and raising campaign money, although as of Friday she had not filed party qualifying papers to make it official.
She’s raised more than $163,000 for the race, including $125,000 from William Fitch of Holly Springs.
She’s also one of thousands of state workers her own agency’s policies warn about political activities, on or off the state clock.
But Fitch insists she’s been walking the straight-and-narrow between her campaign and her state job, “careful,” she said, to keep them separate.
Her earliest 2010 contributions are dated Nov. 17, and she says she’s had one fundraiser so far for family and friends.
The State Personnel Board reportedly receives no federal funds, but she still must abide by its proscribed policies.
Last week, she said she’s followed advice to separate work and campaign.
“Early in the process, I consulted with an attorney who is experienced in the Hatch Act to seek guidance,” she said. “He advised me that I am not covered by the Hatch Act since I do not exercise any functions that are connected to federally funded activities.
“He further advised me to keep my work time and campaign time separate. I have been careful to follow his advice.”
* Lucien Smith, a Jackson attorney who left the Governor’s Office as chief budget counsel in early December, also aims to run for treasurer to succeed Tate Reeves. While he hasn’t filed qualifying papers, his Jan. 31 financial report shows his campaign raised $256,549 during the month after he left his capitol post.
Smith admits his campaign preparation came before he resigned his state post, but he said he took care to take care of political business off state time. His earliest reported contributions are dated Dec. 6, which is about the time he exited the Governor’s Office. That departure ends any future problems he may have from the Hatch Act. And by leaving state government, he’s removed himself from those state policy conflicts.
“As one of the governor’s budget advisers, I saw how important the treasurer’s job was to the state’s finances, and began considering a run when it became clear Tate was not seeking re-election,” he said last week. “I resigned from the governor’s office and then set out on the arduous task of fundraising.”
Reeves officially launched his run for lieutenant governor last week, although he’s been widely believed to have made that decision months ago.
* Lee Yancey of Brandon, also in the treasurer’s race, reports raising $71,410 and launched his campaign recently. His personal political activity doesn’t fall under federal or state scrutiny because he is in the state Senate, an exempted elected official.
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Then, there’s Steve Simpson, slated to resign Tuesday as Gov. Haley Barbour’s appointed commissioner of the Department of Public Safety. Questions arose about his compliance with the Hatch Act after he had announced his candidacy for state attorney general.
Simpson vehemently denies any violation, saying he was not a candidate because he had not filed qualifying papers with the state Republican Party.
But the Hatch Act and state election law say otherwise.
The Hatch Act says it considers someone a candidate when he or she begins to prepare for a campaign. And state law looks at whether someone has filed qualifying papers or receives or spends more than $200 on a campaign.
Simpson did not file a year-end candidate financial report due Jan. 31. What he’s raised and who’s given it to him remain a mystery. His “Friends of Steve Simpson” campaign group also has yet to register with the state.
Simpson is an appointed agency head, not a sworn officer of the Highway Patrol.
State laws specifically prohibit certain political activity for employees of the Mississippi Highway Patrol, Department of Corrections, Department of Wildlife, Fisheries and Parks (old Game and Fish), Public Service Commission and Attorney General’s Office.
Ed LeGrand, executive director for the Department of Mental Health, one of state government’s largest agencies, said its policy requires immediate resignation of any employee who qualifies to seek partisan elected office.
“So much of our budget comes from federal funds,” LeGrand noted, in reference to the Hatch Act.
The Mississippi attorney general’s office, which also gets federal funds, has a similar policy for employees who want to run for partisan office.
“Our practice has been for the employee to resign to ensure that there is no appearance of impropriety,” said spokesman Jan Schaefer.
Exceptions exist for candidates who already are elected officials.
Using titles improperly
Some state employees, including agency heads, who work with federally funded programs, also can get into trouble with the Hatch Act by using their official titles in campaign endorsements or to encourage other employees to participate in a certain campaign, says Erica Hamrick, assistant director for the Hatch Act Division of the U.S. Office of Special Counsel, which oversees the act.
To answer questions, her agency maintains a Hatch Act Hotline – (800) 85-HATCH or (800) 854-2824.
“There’s no prohibition for state and local employees about volunteering for campaigns or raising money or getting involved,” Hamrick noted. But problems arise when their employment intersects with federally funded programs.
Insurance Commissioner Mike Chaney says he believes that what his agency’s employees do after they leave work is their own business.
But, he added, “We remind our employees that getting involved with local races can affect other people’s jobs here at the agency.”
Chaney says he believes that only the Insurance Department’s state fire marshal and the fire academy’s director are affected by the Hatch Act.
Complaints about violations often come to state Auditor Stacey Pickering, who sees a rise in calls during municipal and statewide election cycles.
“We take every complaint very seriously,” he notes, “but we want to be very careful, when it comes to someone’s character.”
Pickering says his agency recently tailored its policies beyond state personnel rules to “maintain our independence” in certain audit situations.
Legal problems also may arise for state or local employees, who work in the executive branch of government, and win election to a municipal office, considered in the legislative branch.
“The Court … may find that such dual service violates the separation of power doctrine,” an attorney general’s opinion notes.
The moral of all this: If you are a state or local government employee, tread carefully before you launch into politics as a candidate or a volunteer.
The job you save may be your own.
Contact Patsy R. Brumfield at (662) 678-1596 or patsy.brumfield@journalinc.com.

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