Feds Could Rule on Lawmakers Taking State Jobs

By Beacon Staff

HELENA – Federal law and rules barring many government employees from running for office could make it difficult for the growing group of legislators getting new state jobs to seek re-election.

The Federal Hatch Act applies to state and local government employees who work in programs funded at least in part by federal money — and most state agencies receive at least some federal funding. It bars such government employees from running in partisan elections.

But the U.S. Office of Special Counsel said it will have to inspect each case individually.

The rules could make it hard on some of the lawmakers taking state jobs — while simultaneously keeping their legislative seats.

The Hatch Act does not ban sitting legislators from taking state jobs that get federal funding. It simply states they would not again be able to seek re-election, according to the federal guidelines.

That’s similar to the advice lawmakers have been given in the past.

Back in 2000 when former state Sen. Mike Halligan took a post in the Montana Justice Department partially funded by at federal grant, he was advised the act did not prevent the appointment as long as he did not seek re-election, according to a memo from the time.

But every situation is different.

State Rep. Jill Cohenour, D-East Helena, was a state employee at the Department of Public Health and Human Services before she ever thought of running for office.

She recalls asking whether the Hatch Act would prevent her from seeking election, and found it did not because the environmental lab she works in is paid for by fees, and does not get federal money.

“There are programs in the agency that receive federal funding, but not ours,” Cohenour said. “I definitely had to check that out before I threw my hat in the ring.”

At least nine sitting Democratic legislators have taken state jobs since 2006, prompting cries of cronyism from Republican opponents.

But some of them have already either resigned from the Legislature, said they won’t run again, or said they will stop working for state government prior to their next election. Several others have not publicly committed.

The U.S. Office of Special Counsel said the conflict is a common one, and it often asks public employees to either step down from office or withdraw from an election in order to avoid penalties.

The office said it prefers to offer advice in advice to employees or officeholders in such situations, rather than enforce penalties after the fact.

“Whether someone is covered by the Hatch Act is very fact specific to each job. It’s hard to give generalities about who covered and who is not,” said Erica Hamrick, deputy chief of the Hatch Act Unit.

Montana, unlike a dozen other states, does allow lawmakers to also take a second state job. The state does have an ethics law aimed at making sure the legislators don’t get paid twice for the same hours — but a recent Associated Press survey found very few file the compliance report.

The Hatch Act does have a big exemption for educational or research institutions — leaving room for all the teachers and professors in the Legislature to seek election.

The act is instead specifically written for other executive branch employees — many of whom work in areas at least partially paid for with the federal money that makes up a large part of state government funding.

Randy Koutnik recalls filing for election in the Legislature in 1988 when he worked at DPHHS as a social worker. He received a letter from the commissioner of political practices telling him the Hatch Act made him ineligible as a candidate.

At the time he thought it was unfair. But now he is mystified by the growing ranks of state legislators taking state jobs and appointments.

“It’s not right in the sense that you are straddling the fence— you are on both sides,” said the Clancy resident. “It’s almost like bigamy.”

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