Thursday, Oct. 9, 2003 | 11:08 a.m.
Public employees who could face a decision of whether to give up their Assembly seats or their jobs say they have taken steps in the workplace toward protecting themselves from being in violation of the Hatch Act.
The Hatch Act prohibits federal employees from participating in political activities. It also applies to certain state and local government employees whose salaries are paid with federal money.
Assembly Speaker Richard Perkins, D-Henderson, is a deputy chief in the Henderson Police Department, and Assemblyman Kelvin Atkinson, D-North Las Vegas, is a senior management analyst for Clark County. Both say their salaries are not derived from federal grant money and they do not directly supervise anyone who deals with federal grants.
Amber Bell, an attorney with the Hatch Unit at the Office Of Special Counsel in Washington, said if a person works in more than one job or position, the office looks at where the person spends a majority of time or earns the majority of salary to figure out if the government-related job is primary.
"In Henderson we have had an attorney in Washington D.C. who is an expert in the Hatch Act help us develop a compliance program," said Perkins, who got a letter from the U.S. Office of the Special Counsel saying he is covered by the Hatch Act and cannot file to run for partisan political office next year.
"We will be meeting with the office of Special Counsel (later this month) and I am confident we will satisfy their concerns as well as improve our compliance program to avoid future concerns."
Perkins, who has served in the Assembly since 1992, said since the police department started getting federal grants in the mid-1990s for things like laptop computers in patrol cars and bulletproof vests, he has been "insulating myself" from those areas.
"I don't directly supervise anyone who gets federal grant money -- I am four to five levels removed" from those employees, Perkins said, noting that the two areas of concern by federal officials are that he was acting chief for two days and that as deputy chief he could advise the chief on federal grants.
Perkins said that his role is mostly administrative and he does not discuss federal grants on the job.
"I work very hard to stay above the line and use the best ethical approaches to address the issues," said Perkins, 41, who has 20 years on the force and could retire with penalties because he has not yet reached the age of 50.
He says he does not want to retire from the police force and he wants to continue serving in political office. He is tabbed as a potential gubernatorial candidate in 2006.
Atkinson, a community liaison to former County Commissioner Dario Herrera, had been considered for a position in family and youth services but went into management analysis to avoid conflict with the Hatch Act because family and youth services receives government grant money.
In his current position his salary is not derived from grant money and he does not supervise those who deal with grant money, Atkinson said.
"That's why the county has 42 departments so public employees who hold office can avoid conflict with the Hatch Act," Atkinson said. "I don't see any problems here. I think this is really stretching it."
Atkinson said states that ban public employees from holding office are states that have full-time legislatures, as opposed to Nevada, which has a part-time citizen's legislature.
Assemblywoman Kathy McClain, Assemblyman John Oceguera and Assemblyman Wendell Williams, all D-Las Vegas, also could be affected by the Hatch Act, as could Assemblywoman Sheila Leslie, D-Reno.
McClain is a senior advocate. Oceguera is a North Las Vegas fireman. Williams is an administrative officer for the city ofLas Vegas neighborhood services department.
Leslie works for the Washoe County District Court and also could be affected by the Hatch Act.
None could be reached for comment this morning.
Bell said once it is determined if a government-related job is an office-holder's primary mode of employment, her office contacts local agency to see what types of federal loans or grants it uses.
Bell cautioned that investigations follow all federal loan or grant money, even if passed through at the state level. She said here is no specific percentage of time or money spent through a program that makes someone covered by the Hatch Act once it is determined that is their primary job.
"It's a common misconception that is has to be 50 percent of your time or money, but it can be one day a week or 10 percent of a salary," Bell said.
Bell said the office looks at which programs get the federal money and a person working on the program, even in just a supervisory role, can be covered by the Act. The money does not have to be in a salary but just financing a program.
If covered by the Hatch Act, the employee is prohibited from being a candidate in a partisan election, using his or her official authority to affect the outcome of an election or coercing another Hatch Act covered employee from contributing money to a certain political party or candidate.
"This is a stretch, given that the original intent of the Hatch Act applied to federal office," said Jerry Simich, associate professor of political science at the University of Nevada, Las Vegas.
"I don't think it is going to happen," he said. "If people in Nevada are so bothered by it they should try to get a mini-Hatch Act enacted to cover our state."
In fact, a group led by anti-tax advocate George Harris is circulating an initiative petition to get a question on the ballot trying to prohibit public employees from holding state office. Harris was unavailable for comment this morning.
Simich said the issue can be boiled down to two theories of law.
"The first is that the separation of powers is seen as bright red lines between the branches of government," Simich said. "The other argument is that this does not violate the separation of powers because the framers (of the Constitution) never intended branches being hermetically sealed off from one another.
"This matter will probably have to be resolved in the courts, but I don't know if there is sufficient doctrine."
The law was passed in 1939, with the state employee version passed in 1940.
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