U.S. Judge John Tinder Is A Proud Representation Of Indiana Justice, Application of the Hatch Act is Not- by Legal Pub

Good national news out of Indiana. (No, this is not about the 11-1 Hoosier basketball team.) The U.S. Senate has unanimously approved U.S. District court Judge John Tinder's appointment to sit on the U.S. Court of Appeals for the Seventh Circuit. Judge Tinder has an excellent reputation for fairness and integrity. The Senate looked beyond politics and approved a great leader and scholar. As a result, the 7th Circuit of the Court of Appeals will become an even stronger leader in the fight for justice. Legal Pub congratulates Judge John Tinder.

In a less congratulatory mode, Legal Pub analyzes an Indiana city's recent mayoral election and the embarrassment arising from the Hatch Act challenge. Kevin Burke was an incumbent Democratic mayor in a town that had not elected a Republican mayor in 35 years. In short, he was a sure thing. But like that inside tip on the horse that can't lose, the bet did not pay off. Kevin Burke lost the election by 110 votes to the Republican candidate Duke Bennett. (With a names like "Duke" and "Indiana" it is still hard to believe that this article is not about basketball.) Mayor Kevin Burke demanded a recount. The recount confirmed Duke Bennet's victory. Then Mayor Burk played his trump card, the "Hatch Act."

Indiana statute allows a losing party to ask a court to disqualify a candidate for office if the candidate was ineligible. IC 3-12-8. Section 2 provides the cause of action, while Section 17 provides the remedy: "...if the judge agrees with the plaintiff that the "[winning] candidate is ineligible, the court shall declare as elected or nominated the qualified candidate who received the highest number of votes...."

After the election, Kevin Burke claimed that Duke Bennett was ineligible because of the Hatch Act, 5 U.S.C. § 1501 et seq., which prohibits "State or local officer[s] or employee[s from] ... be[ing] a candidate for elective office." § 1502(a). “State or local officer or employee” is defined by the act as "an individual employed by a State or local agency whose principal employment is in connection with an activity which is financed in whole or in part by loans or grants made by the United States or a Federal agency...." § 1501(4).

The Hatch Act, by its own terms, applies to officers and employees of a "State or local agency," (§ 1501(2).) Bennett works for a private health care provider. So Burke turned to 42 U.S.C. § 9851(a) which provides, private entities taking federal money are considered state or local agencies for purposes of the Hatch Act's limitations on political activity. § 9851(a) states: "any agency which assumes responsibility for planning, developing, and coordinating Head Start programs and receives assistance under this sub chapter shall be deemed to be a State or local agency." That sweeps a private healthcare provider into the Hatch Act and § 9851(a) effectively modifies § 1501(4). So in sum, Bennett may be barred from seeking office if his "principal employment is in connection with an activity [by his employer] which is financed in whole or in part by ... [federal Head Start money]."

In sum, Bennett was employed by a private health care provider that received federal funding including "Head Start money." However, Burke needed to not only prove that Bennett was employed by a healthcare provider that receives Head Start money; he had to also prove that Bennett's principal employment was connected with activities that are funded by Head Start. So how much is too much and how close is too close?

In Williams v. U.S. Merit System Protection Bd., the Fourth Circuit held that "an employee of a covered agency is subject to the Hatch Act if, as a normal and foreseeable incident to [their] principal position or job, [s/he] performs duties in connection with an activity financed in whole or part by federal funds. The Act does not cover state employees whose connection with federally-funded activities is merely a casual or accidental occurrence of employment, because such a de minimis connection does not justify application of the Act." Williams, 55 F. 3d 917 (4th Cir. 1995) (cert denied 516 U.S. 1071 (1996))

While Hatch Act challenges based on federal funding are very sensitive to the facts, state court Judge David Bolk was up to the task. On December 21, 2007, Judge Bolk ruled that Mayor-elect Duke Bennett did not violate federal law and thus could take office January 1. Judge Bolk rejected Mayor Kevin Burke's argument that Bennett was disqualified under the Hatch Act. While Bennett was the director of operations at Hamilton Center Inc., which operates an Early Head Start program funded by federal dollars, there was no evidence indicating that Bennett had "willfully flouted" the Hatch Act. "Although the Court finds Bennett was subject to the Hatch Act, it is clear that the violation was not willful or intentional." Judge Bolk further concluded that Bennett's contact with the Head Start program was de minimus and thus did not disqualify him from office.

Bennett took office January 2, 2008. While Burke was silent as to whether he would appeal, he encouraged his citizens to move forward towards progress in the city. Another provision of this Indiana law not only disqualifies a candidate if he violates the Hatch Act, it also disqualifies a candidate if the individual has ever been convicted of a felony or charged with a felony but plead down to a Class A Misdemeanor. This disqualifies thousands of potential candidates who have ever had a DWI. Putting felons and those who work in not for profit agencies in the same category appears ludicrous. Furthermore, deputy prosecutors running for prosecutor appear to be barred from being candidates. Strict application of the Hatch Act may lead to few candidates for public office. Would George Bush have been qualified to run for office in Indiana? Nevertheless, in Indiana, one better think twice before drinking and driving or working of a not for profit agency that accepts federal funds if you desire to run for political office.

Update 1-4-08: Former Mayor Burke is appealing the decision to the Indiana Appellate Court.

Update 11-21-08: The Indiana Appellate Court found that Bennett should not have been a candidate because of the Hatch Act. The court has ordered a new special election, a remedy neither side requested. It would appear that this matter will be appealed to the Indiana Supreme Court.

Update 6-17-09: The Indiana Supreme Court overruled the Indiana Appellate Court and confirmed Mayor Duke Bennett as the duly elected mayor of Terre Haute, Indiana.