The Hatch Act left Thomas S. Richards with only two choices.
He could resign as mayor of the City of Rochester in order to run for the seat in a special March election or he could keep the temporary post and not seek election, according to attorney Scott A. Forsyth, counsel to the Genesee Valley Chapter of the New York Civil Liberties Union.
Forsyth, of Forsyth and Forsyth, sees the Hatch Act as a violation of the First Amendment’s right to freedom of speech and a detriment to the electoral process.
Richards was sworn in as mayor Jan. 1 to replace Mayor Robert J. Duffy who is serving as lieutenant governor to Gov. Andrew Cuomo.
There is a question of whether Richards was ever mayor or acting mayor. A complaint filed with the U.S. Office of Special Counsel questioned whether it would be a violation of the Hatch Act for Richards to run for political office.
Forsyth said everybody thinks the Hatch Act applies to federal employees but that, under a 1947 extension of the original 1939 act, it applies to state and local employees “whose principal employment is in connection with an activity which is financed in whole or in part by grants made by the U.S.A.,” he said. “If you are a covered employee, then you are barred from being a candidate for elected office. Tom, in my opinion, was such a covered employee. His choices were to stay as mayor or whatever he was and not run or resign and run.”
Richards resigned Tuesday, announcing he will run as the Democratic candidate in the special election which has yet to be scheduled. He announced that Carlos Carballada, commissioner of Neighborhood Business and Development, will serve as acting mayor in the meantime. The change is effective Thursday when Richards is also hosting a fundraiser.
Richards, speaking from the City Hall Atrium, said the succession plan set up in the city charter almost 30 years ago had been interpreted by corporation counsel and City Council to mean the deputy mayor would become mayor upon the loss of a mayor.
Richards served as corporation counsel under Duffy until being named deputy mayor in late October.
Richards said the Hatch Act provides for the loss of some federal funding provided to local governments when individuals whose positions are funded with federal funds or the administration of such engage in certain kinds of political activity.
“I have never fit either category,” Richards said, noting there is an exemption for the position of mayor. He said the Office of Special Counsel indicated to the city that the language of its charter wasn’t clear enough to satisfy Richards’ role as mayor or acting mayor. The charter says the deputy mayor “shall act as mayor.” Richards said if the clause read “shall become mayor,” it may have been sufficient.
“In short, there was a potential trap lying in the charter for 30 years,” Richards said. “This means I am mayor in the eyes of our council and charter and have authority to act accordingly. The Hatch Act does not impact that. However, for the purposes of a potential penalty under the Hatch Act, I may not be sufficiently the mayor.”
He said the Hatch Act is now interpreted so broadly that it may apply to any local government employees who have part or all of their salaries paid by federal funds, administer federal funds or supervise any employee who administers federal funds.
Richards said that could apply to a large number of elected officials in Monroe County who have served in a government management, but that “oddly enough,” the law is only enforced when there is a complaint.
He said a political campaign could trigger Hatch Act penalties against the city which is facing a shortfall of nearly $50 million.
“The possible loss of one federal dollar is too much to risk even if it does not affect me personally,” Richards said. “I came to help Mayor Duffy make this the best city in which to live. We must move forward and not backward. This is no time to get sidetracked by intramural politics.”
He said his resignation puts an end to the matter which has already diverted the attention of City Council and would likely be a topic through the special election. He said it also ends any uncertainty with respect to city leadership, but that he intends to be the next mayor.
“I will now work hard to reach out to as many people as I can and to assure them about our future,” Richards said.
He agreed the charter needs to be revised, but said time should be taken to correctly complete the process and the revision should not be a reaction to the challenge against him.
Forsyth called the Hatch Act “a Draconian statute” that allows for no middle ground.
“You’ve got to give up the security of your day job in the hope of getting elected to a job in the future,” he said. “For a lot of folks who have to make that choice, they say nope, I’m not going to run.”
He has problems with it narrowing the field of candidates, depriving voters of a greater choice.
“There is case law saying that statutes that so narrow the field of candidates to the voters detriment are a violation of the First Amendment,” Forsyth said. “Having said that, I will acknowledge that the Supreme Court years ago upheld the constitutionality of all sorts of sections, including this one, of the Hatch Act.”
Citing Oklahoma v. United States Civil Service Commission 330 U.S. 127 (1947), he said the high court upheld the restrictions on state and local employees.
“There’s been a lot of case law since 1947, a lot of movement by the court on the subject of free speech which would lead me to believe that if the court were to face this issue anew, it would decide differently today.”