Don't You Have Enough Problems Already?

We have written copiously – if apparently still in vain – about the failings of the Office of Special Counsel and in particular the very serious legal questions raised about the activities of current Counsel Scott Bloch. We have called for his actions to be investigated—and more recently in the wake of FBI raids on his home and office and even his person—have demanded that he be fired...

But even we are quite surprised to find out recently that the OSC had inserted itself into elections for local county sheriffs in the State of Florida, forcing some officials to choose between their livelihoods and their political futures, and causing major upheavals in those local contests within 40 days of the election next Tuesday.

The legal underpinnings of this conflict are complicated and we do not pretend to be able to sort through them decisively. We can however raise one very pertinent question: is this really a good use of federal resources, to pounce upon the goings-on in sheriffs’ offices in small-town Florida?

The action begins with letters from the Office of Special Counsel, an independent agency charged with enforcing the Hatch Act that forbids politicking in federal offices, to employees of local sheriffs’ offices in Florida, warning them that they could not retain their jobs while running as candidates for the office of sheriff. On July 14th, a letter was sent to Kevin Rambosk, who had been Undersheriff in Collier County. When Rambosk decided to run to replace the retiring Sheriff, Don Hunter, Hunter moved Rambosk to the position of Executive Officer in order to avoid offending the Hatch Act. Despite this measure, the OSC letter sternly warns that Rambosk that he is still in violation of the law, largely because the Sheriff’s Office receives a number of federal grants from both the Justice and Homeland Security Departments.

As the letter, signed by Attorney Nicole Elredge of the OSC Hatch Act Unit, states: “The Hatch Act, 5 U.S.C. 1501-1508, restricts the political activity of individuals principally employed by state, county, or municipal executive agencies in connection with programs financed in whole or in part by loans or grants made by the United States or a federal agency.” To that sentence is appended the following footnote: “We have reviewed the Florida State Constitution, state statutes, and case law and concluded that sheriffs’ offices in Florida are executive branch agencies for purposes of the Hatch Act.”

The Florida Sheriffs Association and its attorneys and supporters jumped on that footnote, asserting strongly that in fact Florida sheriffs are members of the judicial, not the executive, branch.  Citing Florida statutes, as well as rulings of the Merit Systems Protection Board (MSPB) that hears cases brought by OSC to support that conclusion, they argued that the Hatch Act does not apply to them.

The OSC letter, however, seems to lean more heavily on the federal funding argument: “It has long been established that an officer or employee of a state or local agency is subject to the Hatch Act if, as a normal and foreseeable incident of his principal position or job, he performs duties in connection with an activity financed in whole or in part by federal funds.” In the case of Rambosk, OSC wrote, as Undersheriff he had “overall budget authority, supervisory authority over employees who handle federal grants, and supervisory authority over employees whose salaries were federally funded.” Thus, OSC concluded, he had “duties in connection with federally funded programs and [was] covered by the provisons of the Hatch Act.” Moving him from that position to Executive Officer was clearly “a temporary maneuver” and did not change the overall situation.

As we noodle around on OSC’s site, we find this is not the first time it has objected to campaigning on the part of some obscure local official in some tiny Smalltown USA. OSC may even be right about the law. But if the law supposes that, to quote Charles Dickens, then the law is a ass and probably should be changed.

Again, we have to ask Mr. Bloch, with the FBI and a grand jury breathing down your neck, with whistleblowers suffering retaliatory acts all across the federal government, is this really all you have to do?

-- Beverley Lumpkin

Comments

[Bill Lambert]

Is this another diversion attempt by Scott Bloch?

[Kim Rowe]

Beverly,

I'm confused...are you implying that this agency not enforce a federal law because they may have bigger fish to fry? It's been a while since I graduated law school, but last time I checked the enforcement of law was not optional or discretionary. Perhaps your crosshairs should be aimed at those who make the laws, not the agencies that are mandated to enforce them.

Kimberly Rowe, Esq
Los Angeles, CA