The Hatch Hitch
by Geoff Kelly - posted 11:43 am, September 25, 2008
As anyone who’d bother to read this post knows, South District Councilmember Mickey Kearns and Delaware District Councilmember Mike LoCurto submitted a resolution asking the city’s law department to draft a statute banning some city employees from engaging in politicking. The resolution, they say, is a response to complaints that workers in City Hall are made to carry petitions, donate to campaigns, and canvass for candidates whom the mayor instructs them to support. (I’m having trouble downloading the text, so no link, sorry.) This mini Hatch Act—so called because it is a local version of the federal law—is intended, say Kearns and LoCurto, to protect city employees from being pressured by their superiors to do political work.
Niagara District Councilmember David Rivera and Council President Dave Franczyk signed onto the resolution, and the fifth man in the majority coalition, Lovejoy’s Rich Fontana, voted yea to send the resolution to the legislative committee.
That’s where it ran into attorney Peter Reese, who excoriated the measure for 10 or 15 excruciatingly funny minutes. (I don’t watch City Hall TV myself, or whatever it’s called, because I don’t have cable; if you do, and if such things interest you, try to catch Reese’s performance.)
Reese said the proposed legislation did not represent reform at all, that in fact it was “politics as usual.” He called the proposed legislation anti-union, because as written it could make union activity grounds for dismissal.
Edit: Mike LoCurto tells me I have misunderstood the section of the proposed legislation that led me to write what is now in brackets and italics below: “The exemption would only be for employees who are currently committeemembers,” LoCurto write. “They could remain committeemenmbers for their current two-year term. They would not be permitted to donate to campaigns during that time.”
[He said it was racist, for several reasons, not least of which is this: Current employees would be grandfathered, so they could still politick. Only new employees would be excluded from political activity. If you sort city employees by councilmanic district and race, you’ll find a preponderance of white South Buffalonians. New Latino hires from the Lower West Side? You can’t campaign for a candidate from your community. New African-American hires from Cold Springs? You don’t get to pass petitions for you next door neighbor whose running for Common Council.
White guy from South Buffalo who has had a job since the Griffin administration and never fails to drop $50 into the hat at a Goin’ South beer bash? Keep writing those checks.]
(Later in the hearing, North District Councilmember Joe Golombek pointed out that a ban on City Hall employees politicking would deprive the mayor of some of his ground troops in his re-election bid next year; meantime, county and local state employees, who tend to align with the county chairman, would remain free to campaign for the mayor’s opponent.)
Reese said the legislation had been misnamed: Instead of the “City of Buffalo Employee Protection Act,” it ought to be called the “Minority Exclusion Act of 2008.”
Worst of all, he said, it created a “political superclass.” Only folks like plow drivers, clerks, cashiers, sanitation workers, etc. would be prohibited from politicking. Appointees who serve at the pleasure of the mayor, the comptroller, or the council—immediate staff of the three branches of city government, in other words, the people who are closest to politicians and most overtly political to begin with—would not be covered by this mini Hatch Act.
It compromises First Amendment rights, Reese said. And state courts have already ruled that passing designating petitions for a political candidate is an absolute right of every citizen.
“And these are the things I like about this bill,” Reese said.
After singling out the councilmembers who had written or supported the resolution for individual scorn, Reese concluded by recommending that the council emapnel a citizens commission to study opportunities for true reform, similar to the commission he served on for Erie County.
Reese’s performance was persuasive, and it unleashed the political hounds: Bonnie Russell thanked Reese and said she agreed completely, that she thought the whole measure unconstitutional and a political exercise. Brian Davis lit into the legislation and its sponsors and their political motivations, calling it “bad with a capital B and an exclamation point.” He moved to receive and file the legislation, hoping to halt its course that day; this was a meaningless gesture, however, since the Council had already, in adopting the resolution, instructed the law department to begin reviewing the legislation. Nonetheless, committee chair Golombek seconded the motion. Franczyk pointed out the futility of the motion, and eventually it was withdrawn.
LoCurto and Rivera offered defenses of the measure and its intentions.They reminded councilmembers and Reese that this was a draft, that the law department would put together a better piece of work before it came before the Council for a vote.
Golombek, in a long and mostly well considered response, said he didn’t fully believe the stories about employees being pressured by their bosses to do campaign work or make donations, because no one had ever come to him with such a story. (He added, “If we can’t fire [city employees] for incompetence, how can we fire someone for having the wrong sign on their lawn?”) No one had come forward and offered the name of someone to whom this had happened, so he didn’t believe it was as common a practice as the mayor’s opponents alleged.
That may have been a little disingenuous of Golombek; it is an issue, and everybody knows it—in both our city and county halls, there is a long tradition of compelled donations and campaign work. I’ve heard stories, and I’ve been given names, but if I told them the people who told me would feel at risk. (The threat isn’t so much that you might lose your job. It’s more like you might find you office has been moved to some otherwise abandoned floor where the bathroom doesn’t work.) Employees who feel they’re being pushed illegally to do something they don’t want to have recourse through their unions and the courts, certainly, but not everyone is spoiling for a fight. The existence of laws and protections that are supposed to prevent compelled political activity don’t work any better than our campaign finance laws.
Nonetheless, this legislation is a bad idea. Masten District Councilmember Demone Smith had it right when he called the measure “prohibition sold as protection.” Though it is the more difficult task by far, we need to find a way to expose and punish the perpetrators rather than restrict the victims.