As chief trial deputy, he isn't the supervisor of any federally-funded programs and oversees deputy prosecutors' trial work, but not the employees themselves. If any of their work is paid for in part by federal grants, Wyser said, his own connection to the money is merely casual. "Not only did I look into it, but I consulted with one of the leading experts on the Hatch Act in the country," he told me. "I don't need to do anything different than what I've been doing."If a candidate wanted to play it safe, he or she could ask for an opinion from the U.S. Office of Special Counsel; otherwise, someone who objected to his candidacy could file a complaint with that same federal agency seeking a contrary ruling.
I called the expert Wyser cited, James Bopp Jr., a Terre Haute lawyer involved in a lot of high-profile cases involving partisan issues. Among his clients was Terre Haute Mayor Duke Bennett, whose opponent, former Mayor Kevin Burke, launched a Hatch Act challenge based on Bennett's work for a mental health nonprofit agency that received federal funding for its Head Start program. A local judge ruled Bennett eligible, the Indiana Court of Appeals disagreed, and then the Indiana Supreme Court reversed, allowing Bennett to retain the office.
Bopp told me that, in his estimation, Wyser interacts so infrequently with prosecutors participating in federally funded programs that the connection is "de minimis." "I do believe, as I advised him, that he is not 'Hatched' -- that he is not prevented from running for office. I think he's sufficiently removed from any federal funds that are used in the office that he can do this."
It remains to be seen whether Democrats or any eventual opponents will press Wyser further on the issue.
Friday, January 22, 2010
More On Wyser's Little Hatch Act Problem
The Star's Jon Murray is posing the question on his blog as to why the Little Hatch Act kept former Brizzi Chief of Staff Helen Marchal from keeping her job and running as a candidate for prosecutor, while Brizzi's chief trial deputy, David Wyser, sees no obstacle in running for Hamilton County Prosecutor and retaining his job with the Marion County Prosecutor's Office. Here's Wyser's explanation of why the law doesn't apply to him: