OSC Clears One Dearborn County Official Of Hatch Act Violation

The incoming executive secretary of the state's Attorney Disciplinary Commission, Michael Witte, caused quite a stir in Dearborn Co. recently when, in a parting move as the county attorney, he publicly disclosed two county officials against whom he had filed complaints to the federal Office of Special Counsel to investigate possible violations of the Little Hatch Act  because they also held partisan, elected positions in county government. One of those officials has received an opinion from the OSC that he is not in violation of the Act because he was elected to his partisan position at a party caucus as opposed to a primary or general election. Eagle Country 99.3 FM reports on the OSC's finding:

At the May 17 meeting of the county commissioners, Witte alleged that two county employees - Prosecutor's Office victim advocate Bryan Messmore and Dearborn County Sheriff's Office and Special Crimes Unit detective Shane McHenry - were in violation of the Hatch Act, a 1939 federal law barring some public employees from running for or holding public office. Messmore sits on the Dearborn County Council while McHenry is a Republican candidate for District 3 County Commissioner.


Messmore, who was selected via caucus to fill a council seat vacated by Charlie Fehrman, has since been found not to be in violation of the Hatch Act. A letter to Messmore from the U.S. Office of Special Counsel's Hatch Act Unit dated May 28 says "the caucus vote is not an election for the purposes of the Hatch Act."

Hughes said he was "deeply troubled" by Witte's accusation which came as a surprise to he and others at the meeting.

"It appears that our Attorney acted completely on his own and without the authorization of his client, the Dearborn County Board of Commissioners. I feel that he may not have done an adequate job researching the issue before he acted on it," Hughes stated in a press release.

Witte has resigned as county attorney and been appointed as the new executive secretary of the Indiana Supreme Court's Disciplinary Commission starting mid-June. However, he may soon be under investigation by the same office as Hughes has filed a complaint against Witte.

Hughes said he "believes Mr. Witte may have possibly engaged in behavior that is within the jurisdiction of the Disciplinary Commission of the Supreme Court. I have requested an investigation to be conducted by the Disciplinary Commission and understand that any final determination is up to the Supreme Court."

The OSC's interpretation of the Act to exclude party caucuses from the meaning of an election is unfortunate. If the General Assembly had required in the election code that such vacant positions be filled at a special election, as is the case with congressional seats, the employee would be considered to be participating in a "election" and be covered by the Act. It seems to me to be a distinction without any practical difference. In both cases, the candidates are campaigning for a partisan, elected position, but appointment by caucuses means you can both run for the office and serve in that office while holding a government position that is paid in whole or in part by federal funds. In the case of Messmore, if he decides to run for re-election to that same position, he will be barred by the Act according to the OSC. You can read the OSC's opinion here.

As an observation, Andre Carson resigned his job as a state excise police officer assigned to the Department of Homeland Security after his election at a party caucus to fill a vacancy on the Indianapolis City-County Council because concerns were raised that his political activities violated the Little Hatch Act. According to this opinion, he could have continued in his federally-funded state job while serving on the council and through the caucus election to fill the congressional seat left vacant by the death of his grandmother, Julia Carson. He would not have become a candidate for a covered partisan election until he won the caucus vote and became the party's candidate for the special election in which the voters of the district were eligible to participate.