Moreno’s Attempt to Withdraw from AD-69 & Hatch Act Implications
Posted by Chris Nguyen on April 12, 2012
The Orange County Register’s Andrew Galvin reported yesterday that on Thursday, March 29, AD-69 candidate Jose “Joe” Moreno (not to be confused with Anaheim City School District Trustee Jose F. Moreno) wrote a letter to the Registrar of Voters asking to withdraw from the AD-69 race:
I Jose Moreno a candidate running for the 69th Assembly District, request that the Orange County Registrar of Voters, effective immediately remove my name as a candidate for the aforementioned office. I have learned that I may be violating the Hatch Act, as an employee working for a federally funded agency.
Registrar Neal Kelley responded to Moreno the same day denying the request. (I do find it odd that the Registrar did not send this request to the Secretary of State’s office, as that office is the one that makes final determinations as to the appearance on the ballot of candidates for State offices, like the Assembly.)
After Kelley refused to remove Moreno from the ballot, the Register reported that Moreno decided that “he will continue to actively campaign for the Assembly seat.”
On Monday, April 9, I wrote a post speculating about Moreno’s eligibility to run due to the Hatch Act.
The Register wrote that Moreno “expects to lose his job” while his employer, ”the Social Services Agency, said the agency doesn’t comment on personnel matters.” Either Moreno’s speculation about losing his job is overblown or the County Social Services Agency is overreacting, as firing Moreno is the toughest penalty available under the Hatch Act.
The U.S. Office of Special Counsel is responsible for investigating and charging violations of the Hatch Act (essentially, they fulfill the enforcement role for the Hatch Act), which is adjudicated before the Merit Systems Protection Board.
In a 2007 advisory opinion to a candidate, the U.S. Office of Special Counsel wrote:
OSC did not open an investigation into the matter because you withdrew your candidacy once we informed you that the Hatch Act prohibited it. Because you attempted to come into compliance with the law, we did not view your violation as a knowing and willful one…OSC has not opened an investigation into this matter because you attempted to withdraw from the election…Accepting an appointment to this same position does not, in our opinion, evidence good faith on your part. Thus, if you were to accept an appointment to the [position]…OSC would consider the acceptance an aggravating factor in this matter, which likely would cause us to open an investigation.”
In other words, a good faith effort to withdraw from an election is enough to mitigate the penalties of the Hatch Act, provided the candidate does not attempt to pursue the office after the withdrawal effort.