SANTA ANA — I was going to let this go, partially out of pity for a guy who jumped into political quicksand and can’t seem to find something to grab hold of to pull himself out. But unfortunately Jose “Joe” Moreno keeps wading deeper and deeper into the mud. On Saturday, Moreno sent out a press release that he claims refutes the allegation that his candidacy for the State Assembly violates the Hatch Act. To put it mildly, Joe just doesn’t get it, and apparently never will.
The Hatch Act is a federal law enacted in 1939 that prohibits federal employees, and state and local municipal workers whose jobs are paid for in part or in whole with federal funding, from seeking partisan elected office. Moreno seems to feel that even though his job with the County of Orange Social Services Agency is funded by federal dollars, the Hatch Act does not apply to him. His reasoning is that the 2012 Primary election is a non-partisan selection since the top two vote-getters move forward to the general election, regardless of their party affiliation.
In his email release Moreno wrote:
A 2008 Federal Judge ruling that was upheld by the Supreme Court of the United States clearly supports my contention that our new non-partisan “Open Primary System”, is absolutely not a partisan election. In fact, our own California Secretary of State, refers to our California Voter Approved election system as a “voter nominated system.”
I’m unable to figure out how the case that Moreno cites applies to the Hatch Act and his primary contest. While the U.S. Supreme Court found the top-two primary in Washington State constitutional, that doesn’t mean those or California’s legislative contests are non-partisan where the Hatch Act comes into play. By placing all his eggs in this basket, Moreno is taking a big risk.
LiberalOC has a vast amount of information that it has gathered over the years regarding the Hatch Act. A quick review of our resources found that the Office of Special Counsel provides a set of FAQ’s to answer questions about the Hatch Act. One of those specifically addresses how a non-partisan election can become a partisan election, triggering the Hatch Act. (Emphasis Mine)
Can a nonpartisan election become partisan?
Answer: Yes. If state or local law mandates a nonpartisan ballot for a particular local office, there will be a presumption that the election for that office is nonpartisan. If evidence is presented, however, that shows that partisan politics actually enter the campaigns of the candidates, e.g., the employee solicits the endorsement of a partisan group, advertises the endorsement of a political party, or uses the party’s resources to further her campaign effort, the nonpartisan election can be transformed into a partisan one in violation of the Hatch Act.
On March 27th, Andrew Galvin over at the Orange County Register wrote a profile of Jose Moreno in Total Buzz, Lone Republican takes on four Democrats in 69th. From Galvin’s story:
With Hammond’s departure shortly before the filing deadline, there was no Republican in the 69th district race. Moreno called Scott Baugh, chairman of Orange County’s Republican Party, to ask if the party would pay his candidacy fees. After meeting Moreno for the first time, Baugh agreed.
In a phone interview, Baugh said he talked with Moreno about “the realities of that being a difficult seat for a Republican to win.”
Moreno “seemed eager and enthusiastic to go out and give it his best shot,” Baugh said, “and one of the reasons we like to field candidates in every district is it provides infrastructure support for our general get-out-the-vote operations.”
Moreno seals his fate with his comment in the story about County Clerk-Recorder Tom Daly, who is also a candidate for the same Assembly seat.
Daly, the only non-Hispanic in the race, has a reputation as a moderate, business-friendly Democrat. A familiar name, he’s likely to attract Republican votes. That prospect makes Moreno feisty.
“He’s coming across like he’s the Republican candidate,” Moreno said of Daly. “He’s not the Republican. I’m the Republican — the Republican who is like the average 69th district voter.”
Moreno is either stupid or deluded if he believes that his candidacy is non-partisan. It is partisan, and his own actions prove that it is.
But Moreno goes off the deep-end with the following from his release:
The Hatch Act has been used against my candidacy, which has resulted in a significant threat to my employment, which is my family’s main source of income and benefits. Shamefully, I have even been subjected to coordinated intimidation, which in my opinion has been unconstitutional and extreme.
I have steadfastly stated that I have absolutely not politicized my employment position to benefit my campaign. I do not have the ability to award jobs, government contracts, grant pay raises or give any other special favors in exchange for political support yet my main opponent, who is a County official, has done so and he is continually allowed to do so with no repercussions.
While some might say that this is business as usual, I say it is wrong regardless of one’s political point of view. This extrajudicial attempt to end my candidacy will not end government corruption, nor will it strengthen our democracy, instead it only serves to undermine our electoral process.
If Moreno is referring to fact that people have told him that they think he is violating the Hatch Act and that he should withdraw, he has a warped perception of intimidation. His suggestion that Daly, a county official, is being allowed to violate the Hatch Act is wrong. As an elected department head, Daly is exempt from the provisions of the Hatch Act.
Moreno isn’t being picked on. Absent a contrary opinion from the OSC stating that he is not covered, Moreno is subject to prior opinions of the OSC. Those opinions strongly indicate that he is covered by the Hatch Act and that he’s likely in violation of the act.
Unfortunately Moreno is going to have to accept that the facts of his situation are not the result of some extrajudicial attempt to end his candidacy. Eventually his employer, the County of Orange Social Services Agency, will be forced by the financial reality of the Hatch Act’s penalties to let him go.
Isn’t Michele Martinez guilty of a Hatch Act violation too?
Her employer is listed on campaign finance documents as NuPac. Also known as The Orange County Nutrition and Physical Activity Collaborative, this is a county operated collaboration of businesses and community organizations.
NuPAC functions as the Regional Network collaborative, a grant project funded by the USDA Supplemental Nutrition Assistance Program (SNAP).
Since a portion of their funding comes from a federal agency (the USDA) and Martinez is employed by this county collaborative, that seems to have the same conditions that are triggering Jose Moreno’s circumstances, and would mean she should also be subject to the Hatch Act.
Michele now works for Alliance for a Healthy Orange County (AHOC) which is a health advocacy coalition that split away from NUPAC a couple months ago. They operate under the fiscal agent OneOC. The project at this point appears to have no federal funding. It is operated solely with under a grant from the California Endowment. Martinez is listed as Executive Director, but there are no staff members or programs for her to direct. She is a glorified coordinator of an advocacy group.
Anyway, she is not paid under federal grants and is not covered by the Hatch Act.
This passage of Moreno’s statement:
“…my main opponent, who is a County official, has [awarded jobs, government contracts, granted pay raises and given other special favors in exchange for political support] and he is continually allowed to do so with no repercussions…”
does NOT say, as you caricature it, that Daly has violated the Hatch Act. What it says is that this usage of the Hatch Act is unjust and nonsensical, as it enables Daly to perpetrate the abuses the Hatch Act is supposed to prevent, while punishing Moreno who can’t and doesn’t engage in those abuses.
Dontchya think?
Aside from that I have no problem with his splitting hairs legalistically on whether or not this is a partisan election – regardless of whether or not he is a fiercely partisan candidate. That’ll be up to some judge to decide, and Joe’s argument is as good as the opposing one.
Any special reason you guys don’t want him in the race, by the way? I’ll admit up front I see him taking GOP votes from Daly, which tilts me in his favor.
I don’t think any of us have a problem with Jose being in the race. The issue of the Hatch Act is a matter of law. Given that Moreno has exhausted all possibility of exiting the race that possibility is moot. I do have a problem with him calling the matter of Hatch Act compliance a conspiracy to remove him from the race. There is no conspiracy or harassment here. Simply put he’s going to eventually lose his job. I hope someone has requested an advisory opinion from the Office of Special Counsel. That’s about the only thing that could save his jib.
Chris, has anyone looked for case law on the Hatch Act? My understanding has been, for example, that City Council and School Board races are nonpartisan, period. Yet we know that public employees often run for such positions and that they seek (and get) endorsements from partisan groups. One would think that the streets would be littered with the corpses of Hatch Act violators if its scope were as broad as suggested here.
But, again — I’m not saying that it’s not true, I’m saying that there’s an even better way that looking at an OSC FAQ to figure out the truth. That way is to look at what courts have actually done about enforcing it in practice. Has anyone at LibOC looked?
I looked for case law and could only find advisory opinions. For one thing it would be a violation for someone to run as an Independent or DTS candidate in an election where others represent a party or identify party affiliation on the ballot. An example would be Cecelia Iglesias who challenged Loretta Sanchez last cycle.
Moreno has three problems, 1) He identified His party affiliation on the ballot, 2) He has sought and received support for his campaign directly from the OC GOP, and 3) he has campaigned as a Republican. There is no case law that indicates a legislative race would be nonpartisan. For example, in Louisiana the top two vote-fetters in their Congressional elections (regardless of party affiliation, face off in their general election if no candidate gets more than 50% in the primary. The congressional elections are considered partisan in Louisiana for the purposes of the Hatch Act.
Chris,
I don’t know if Jose Moreno has exhausted all possibilities.
It seems or is alleged that the candidate filing extension was extended from a Friday to a Wednesday by mistake by the CA Secretary of State, and Jose came in within 2-5 minutes of closing time on Wednesday. And if this is the case, even if the CA Secretary of State admits to their mistake, it would take a Court Order to reverse this. He could argue that if the Secretary of State had not erred, he would never have qualified to be a candidate, and therefore he would be allowed to withdraw as he attempted to do, because his candidacy would be ruled invalid.
I suggested to Jose Moreno when I ran into him about 9 days, that he may want to explore this avenue, so as not to put his employment with the County at risk.
In my opinion, and I don’t mean to speak for the voters, Jose Moreno stands a good chance of being one of the top two vote-getters in June’s primary by the sole virtue of being the only Republican, in a field of 4 Democrats.
But, I seriously doubt, based on past history and the numbers that he would then win in November again because of the sole virtue of being a Republican in a “democratic” district.
P.S. I do hope that all voters, Democrats and Republicans take a serious look at each of our backgrounds, our ideas and solutions without regard to ethnicity, race or party affiliation…Our future depends on it.
Francisco “Paco” Barragán
For State Assembly 2012 – 69th AD
To Restore Our Future Now!
http://www.linkedin.com/in/franciscobarragancpacia
Interseting premise. But I do not think it works. I think her decision, while confusing, is on sound legal footing. At any rate, the time for a challenge of that decision expired and the error, if there was one, did not harm the public as it provided maximum opportunity for candidates to file.
The President, Senator, members of congress, and many other elected officials are employees of the various governments and some or all of their pay comes from federal dollars.
Why don’t all those democrats need to resign before they run for reelection or any election?
Well, as the LOC or anyone else will tell you, Cook, the Hatch Act doesn’t apply to elected officials. If it did, like you point out, nobody could run for re-election, or for a different office.
wow, then it seems the Hatch Act should go the way of the “poll tax” and “sepreate but equal” laws of the past that were not in line with the 14th amendment.
The Hatch Act should apply only to those guilty of violating it’s provisions – otherwise it is an incumbant protection law.