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of its discretion in these matters, the Board may, for example, find it advisable to limit the application of the principle to cases in which the participation in the election is sufficiently substantial and representative to warrant the presumption that "those who do not participate "* * * assent to the expressed will of the majority of those voting" (Virginian Railway case, 300 U. S. at 560). See Standard Lime case, supra, at p. 438.

Respectfully yours,

TOM C. CLARK.

REMOVAL OF EMPLOYEES FOR POLITICAL ACTIVITY The penalty provisions of the Hatch Act require the removal of an employee from the civil service position or office which he is holding at the time his violation of that act is established despite the fact that this position may be a different one from that held at the time the violation occurred. It is immaterial whether the second civil service position has been obtained by transfer, promotion or reappointment.

Such an employee, however, is not forever debarred from securing employment in the Federal Government. He will be prevented only from thereafter obtaining the position or office from which he was removed.

The PRESIDENT.

SEPTEMBER 12, 1947.

MY DEAR MR. PRESIDENT: I have the honor to respond to your request for my opinion on the following question, submitted by the Civil Service Commission, arising under the act of August 2, 1939, as amended, 53 Stat. 1147, 18 U. S. C. 61, et seq., commonly known as the Hatch Act:

"Do the penalty provisions of section 9 (b) of the Act of August 2, 1939, as amended, apply in the case of a Federal employee who leaves the civil service position he occupied at the time of his violation of section 1 of Civil Service Rule I and section 9 (a) of the Act of August 2, 1939, as amended, and is holding a second position by reappointment, and after a definite break in service, at the time the violation is established, there being no evidence that the employee has engaged in prohibited political activities during the period of his employment in the second position?"

The pertinent provisions of the Hatch Act are as follows: "SEC. 9. (a) It shall be unlawful for any person employed

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in the executive branch of the Federal Government, or any agency or department thereof, to use his official authority or influence for the purpose of interfering with an election or affecting the result thereof. No officer or employee in the executive branch of the Federal Government, or any agency or department thereof, shall take any active part in political management or in political campaigns. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects and candidates. * * *

"(b) Any person violating the provisions of this section. shall be immediately removed from the position or office held by him, and thereafter no part of the funds appropriated by any act of Congress for such position or office shall be used to pay the compensation of such person.

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"SEC. 12. (b) If any Federal agency charged with the duty of making any loan or grant of funds of the United States. for use in any activity by any officer or employee to whom the provisions of subsection (a) 1 are applicable has reason to believe that any such officer or employee has violated the provisions of such subsection, it shall make a report with respect thereto to the United States Civil Service Commission (hereinafter referred to as the "Commission"). Upon the receipt of any such report, or upon the receipt of any other information which seems to the Commission to warrant an investigation, the Commission shall fix a time and place for a hearing * *. After such hearing, the Commission shall determine whether any violation of such subsection has occurred and whether such violation, if any, warrants the removal of the officer or employee by whom it was committed from his office or employment, and shall by registered mail notify such officer or employee and the appropriate State or local agency of such determination. If in any case the Commission finds that such officer or employee has not been removed from his office or employment within thirty days after notice of a determination by the Commission that such violation warrants his removal, or that he has

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1 Section 12 (a) contains provisions similar to section 9 (a). It is applicable to officers or employees of State and local agencies "whose principal employment is in connection with any activity which is financed in whole or in part by loans or grants made by the United States or any Federal agency."

been so removed and has subsequently (within a period of eighteen months) been appointed to any office or employment in any State or local agency in such State, the Commission shall make and certify to the appropriate Federal agency an order requiring it to withhold from its loans or grants to the State or local agency to which such notification was given an amount equal to two years' compensation at the rate such officer or employee was receiving at the time of such violation.

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Section 4.1 of Civil Service Rule IV provides: 2

"Prohibition against political activity.-Persons in the executive branch shall retain the right to vote as they choose and to express their opinions on all political subjects and candidates, but such persons shall not use their official authority or influence for the purpose of interfering with an election or affecting the result thereof. Persons occupying positions in the competitive service shall not take any active part in political management or in political campaigns except as may be provided by or pursuant to statute."

Preliminarily it should be noted that section 9 (a) of the Hatch Act applies, with exceptions not pertinent, to all persons employed in the executive branch of the Federal Government, or any agency or department thereof. Accordingly, it governs employees in the classified civil service, as well as unclassified employees or other employees who are not subject to the Civil Service Act and Rules. On the other hand, section 4.1 of Civil Service Rule IV applies only to employees who have a status in the classified civil service and to other persons who, although they do not have such a status, nevertheless occupy positions in the classified civil service. See Federal Personnel Manual, C 2-5, of June 12, 1947. Since the question of the Civil Service Commission relates to any employee who violates both section 4.1 of Civil Service Rule IV and section 9 of the Hatch Act and is reappointed to a civil service position, this opinion is limited to employees in the categories mentioned in the preceding

sentence.

Section 9 (b) of the Hatch Act provides that any person

2 Civil Service Rule I, section 1, referred to in the Commission's letter, has been replaced by Rule IV, section 4.1, in the recently adopted Civil Service Rules. See 12 Fed. Reg. 1263, February 25, 1947.

who violates the provisions of section 9 (a) of the Act shall be immediately removed from the position or office held by him and thereafter no part of the funds appropriated by any act of Congress for such position or office shall be used to pay the compensation of such person. A person who violates section 9 (a) is not forever debarred from securing employment in the Federal Government; under section 9 (b) it is clear that such a person will be prevented only from thereafter obtaining the position or office from which he was removed.3

The provisions of section 9 (b) as to removal are mandatory. 40 Op. A. G. 14, January 8, 1941. There is no doubt that removal would be required where a Federal employee remains in the same position in which the violation occurred. The case posed by the Civil Service Commission involves a Federal employee who has resigned from the position he held at the time of the violation but who is holding another position by reappointment at the time the Civil Service Commission establishes the violation. The query is whether such an employee must be removed from the second position. The

The Senate version of section 9 (b) would have debarred a violator of the Hatch Act from forever thereafter holding any position in the Federal Government. As passed by the Senate, section 9 (b) provided "Any person violating the provisions of this section shall be immediately removed from the position or office held by him, and thereafter no part of the funds appropriated by any act of Congress shall be used to pay the compensation of such person" (S. 1871, 76th Cong., 1st sess.; 84 Cong. Rec. 9596). The House, however, adopted an amendment to section 9 (b) inserting the important limiting phrase "for such position or office" in the last clause so that it reads as follows: "Any person violating the provisions of this section shall be immediately removed from the position or office held by him, and thereafter no part of the funds appropriated by any act of Congress for such position or office shall be used to pay the compensation of such person. [Italics supplied.] 84 Cong. Rec. 9625, 9637, 9640. The House amendment is contained in the bill as enacted.

The very Congress which passed section 9 (b) interpreted it as not resulting in a permanent debarment from all Federal employment, in connection with the discussions on a subsequent amendment to the Hatch Act (viz., section 12). Senate Debates on S. 3046, 76th Cong., 3rd sess.; 86 Cong. Rec. 2850-2851.

This, too, is the view expressed by Mr. Justice Black in his dissenting opinion in United Public Workers of America v. Mitchell, 330 U. S. 75 (1947). He paraphrased section 9 (b) as follows: "The punishment provided is immediate discharge and a permanent ban against reemployment in the same position" (pp. 105-106). [Italics supplied.]

Compare section 117 of the Criminal Code (18 U. S. C. 207), pursuant to which an official convicted of accepting a bribe is forever barred from holding public office. See United States v. Lovett, 328 U. S. 303, 316 (1946), citing other "special types of odious and dangerous crimes" for which Congress has invoked "permanent proscription from any opportunity to serve the Government."

answer to this question depends on the meaning of the phrase "the position or office held by him" in the first clause of section 9 (b).

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Congress passed the Hatch Act "to prevent pernicious political activities." The Supreme Court had occasion to comment upon the reasons for the enactment of the statute in its recent decision in United Public Workers of America v. Mitchell, 330 U. S. 75 (1947), at page 103:

"Congress and the administrative agencies have authority over the discipline and efficiency of the public service. When actions of civil servants in the judgment of Congress menace the integrity and the competency of the service, legislation to forestall such danger and adequate to maintain its usefulness is required. The Hatch Act is the answer of Congress to this need." [Italics supplied.]

In order to eliminate the evils attendant upon mixing politics with civil service, Congress decreed that any violator of the Hatch Act should be immediately removed. Congress was not concerned with the particular position that the violator might hold. Section 9 (a), it will be seen, applies to an individual by reason of the fact that he is an officer or employee, with exceptions not pertinent, in the executive branch of the Government. This is clearly illustrated by the second sentence of section 9 (a) which prohibits civil servants from taking an active part in political management or political campaigns. It is, generally speaking, immaterial what the position of the violator is. "Congress has determined that the presence of government employees, whether industrial or administrative, in the ranks of political party workers is bad.” 5

Uneven, indeed, would be the removal sanction of section 9 (b) if it applied only to the position held at the time of the violation. Violations may not be detected immediately. Even if they are, the facts must be established prior to dismissal. In the interim the Federal employee may have been transferred or promoted. One of the ancient evils which Congress recognized and sought to rectify by the enactment of the Hatch Act was the system whereby promotions were

This is the title of the Hatch Act (53 Stat. 1147).

5 United Public Workers of America v. Mitchell, 330 U. S. 75 (1947), at p. 102.

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