US. OFFICE OF SPECIAL COUNSEL 1730 M Street, NW Suite 218 Washington, D.C. 20036-1505 December 29, 2017 Dear Ms. Romeo: This letter concems a complaint you filed with the U.S. Office of Special Counsel alleging that Mr. Patrick O'Flynn, Sheriff of the Monroe County Sherif"s Office (MCSO). violated the Hatch Act by using photographs of uniformed members of his department for his campaign Facebook page and agency-owned Drug Abuse Resistance Education (DARE) Vehicles at his campaign events. Although we have concluded that Sheriff O'Flynn’ actions violated the Hatch Act, as explained below, we have decided not to pursue disciplinary a and instead issued him a warning letter. ‘The Hatch Act, 5 U.S.C. §§ 1501-1508, governs the political activity of certain state and local government employees in order to protect the public workforce from partisan political influence and ensure the nonpartisan administration of laws. State and local government employees who perform job duties in connection with a program or activity financed with federal grants of loans are prohibited from: (1) using their official authority or influence to affect the results of an election; and (2) coercing, attempting to coerce, commanding, or advising another employee to engage in political activity. See 5 U.S.C. § 1502(a)(1)-(2); § 1501(4). Examples of activities that violate these two prohibitions include advising other employees to volunteer for a political campaign or make a campaign contribution; campaigning in uniform or while using ‘your official title; using official resources to promote or oppose a candidate for partisan elective office, and asking subordinate employees to engage in political activity. However, it is OSC’s position that individuals holding elective office, whose elected position is their principal employment, would not violate the Hatch Act by using the title of their elective office while engaging in political activity.' This position is based on the faet that elected officials are in a unique situation ~ they may be covered by the Hatch Act, but they are elected to the office that subjects them to such coverage. Thus, the office is necessarily a political one. Indeed, Congress intended to give individuals whose principal employment is elective office ‘greater political latitude than other state or local employees covered by the Hatch Act; they are expressly exempt from the Act’s prohibition against being a candidate in a partisan election for " Similarly, itis OSC’s position that elected officials, such as sheriffs, would not violate the Hatch Act by wearing an official uniform or official insignia while engaging in political activityU.S. Office of Special Counsel Page 2 public office, 5 U.S.C. § 1502(c). In light of the fact that elected officials are given this allowance, it would be unreasonable to conclude that the Hatch Act prohibits them from using their official titles while engaging in political activity. We understand that in 2017 the MCSO received more than $1.5 million in federal funding? As head of the agency, Sheriff O'Flynn has ultimate oversight for all of MCSO’s functions, including the programs that are funded in part by federal grants. As such, Sherif O'Flynn has duties in connection with federally financed programs, and we believe he is covered by the provisions of the Hatch Act. During the course of our investigation, we found no evidence that Sheriff O’Flynn asked or instructed MCSO employees to participate in his reelection campaign activities. However, we received a video showing footage from the July 2017 Town of Rush Fire Departments Parade. The procession begins with an agency-issued DARE car and then Sheriff O'Flynn and Undersheriff Andrew Forsythe are seen in uniform marching in front of campaign volunteers who are holding a banner. After the campaign volunteers, a procession of uniformed officers follows. Sheriff O'Flynn explained during our investigation that every year the MCSO officially participates in various parades and uniformed officers present at these events are on duty. He also explained that his campaign volunteers attend these parades in election years only. ‘As previously mentioned, the Hatch Act prohibits employees from using official resources to promote a candidate for partisan elective office. Given the positioning of the procession described above, a reasonable person could conclude that the DARE car and on duty uniformed officers were being used to promote Sheriff O"Flynn’s candidacy. The video suggests that at an official agency event he allowed, as Sheriff, his campaign volunteers to march behind the agency-owned DARE car and before on duty uniformed officers, thus giving the appearance that the car and officers were part of his campaign procession. Because it appeared that Sheriff (0’Flynn used official resources to promote his candidacy for partisan elective office, we have concluded that he violated the Hatch Act. Although we have concluded that Sheriff O’Flynn violated the Hatch Act, it does not appear that his violation was knowing and willful. As such, we have decided to close our file in this case without further action. Sheriff O’Flynn has been warned that if in the future he engages in Hatch Act-prohibited activity while employed in a Hatch Act-covered position, we would consider such activity to be a willful and knowing violation of the law that could result in disciplinary action, 2 Specifically, the MCSO received federal funding in 2017 for the following programs: Per Diem Housing of Federal Prisoners, Miscellaneous Task Forces, Crime Victim Assistance, Public Safety Partnership Community Policing, Federal Equitable Sharing, State and Community Highway Safety, Homeland Security Grant Program, and National Explosives Detection Canine Team.U.S. Office of Special Counsel Page 3 Please contact me at (202) 804-7086 if you have any questions, Sincerely, Kelley E. Nobriga Attorney, Hatch Act UnitUS. OFFICE OF SPECIAL COUNSEL 1730 M Strest, NW, Site 218, Washington, D.C. 20036-4508 "02:804.7000 December 29, 2017 Ms. Jamie Romeo BY EMA: Sioa aaaa ei Re: OSC File No. H. 0249 ‘Dear Ms. Romeo: This letter concerns a complaint you filed with the U.S. Office of Special Counsel alleging that Mr. Andrew Forsythe, Undersheriff of the Monroe County Sheriff's Office (MCSO), violated the Hatch Act by taking photographs and marching in parades while in ‘uniform with a candidate for partisan political office and his campaign volunteers. Although we have concluded that Undersheriff Forsythe’ actions violated the Hatch Act, as explained below, we have decided not to pursue disciplinary action and instead issued him a warning letter. ‘The Hatch Act, 5 U.S.C. §§ 1501-1508, governs the political activity of certain state and local government employees in order to protect the public workforce from partisan political influence and ensure the nonpartisan administration of laws. State and local government employees who perform job duties in connection with a program or activity financed with federal grants or loans are prohibited from: (1) using their official authority or influence to affect the results of an election; and (2) coercing, attempting to coerce, commanding, or advising another employee to engage in political activity. See 5 U.S.C. § 1502(a)(1)-(2); § 1501(4). The prohibition against using one’s official authority includes, for example, using one’s official title, or otherwise trading on the influence of one’s position, while engaged in political activity. See 5 CER. § 734.302 (b)(1) (regulation interpreting the prohibition as it applies to federal employees where the language in the statute concerning the use of official authority or influence is identical for both state and local and federal employees), We understand that in 2017 the MCSO received more than $1.5 million in federal funding,' Undersheriff Forsythe is second in command and serves as acting Sheriff in the Sheriff's absence. In addition, he is responsible for the overall administration of the daily ‘operations of the divisions within all bureaus of the MCSO. As second in command, Undersheriff Forsythe has oversight responsibility for MCSO’s functions, including the programs that are funded in part by federal grants, As such, Undersheriff Forsythe has duties in " Specifically, the MCSO received federal funding in 2017 for the following programs: Per Diem Housing of Federal Prisoners, Miscellancous Task Forces, Crime Victim Assistance, Public Safety Partnership Community Policing, Federal Equitable Sharing, State and Community Highway Safety, Homeland Security Grant Program, and National Explosives Detection Canine TeamUSS. Offfice of Speci Page 2 Counsel connection with federally financed programs, and we believe he is covered by the provisions of the Hatch Act. During our investigation, we found a video and photographs of Undersheriff Forsythe in uniform at parades with Sheriff Patrick O’Flynn while Sheriff O’Flynn was a candidate in a partisan election. We understand that each year the MCSO officially participates in various parades and uniformed officers present at these events are on duty. We also understand that Sheriff O’Flynn’s campaign volunteers attend these parades in election years only. The video we have shows Undersheriff Forsythe in uniform at the July 2017 Town of Rush Fire Department’s Parade marching with Sheriff O'Flynn in front of Sheriff O'Flynn's campaign banner and volunteers. We also have photographs of Undersheriff Forsythe while in uniform posing with Sheriff O'Flynn and his campaign volunteers in front of a campaign banner. Given that the MCSO officially participates in parades each year, we have concluded that the video of Undersheriff Forsythe appearing in uniform at the parade does not violate the Hatch Act. Although Undersheriff Forsythe is shown marching near Sheriff O’Flynn’s campaign volunteers, we have insufficient evidence to conclude that he was present at the parade to use his official authority to affect the result of an election. Rather, the evidence suggests that Undersheriff Forsythe participated in his official capacity because the MCSO attends the event ona yearly basis. However, the photographs of Undersheriff Forsythe while in uniform posing with Sheriff O’Flynn and his campaign volunteers in front of a campaign banner appear to be political in nature, The campaign volunteers are clearly identified in white t-shirts, and the banner states “Sheriff Patrick O’Flynn” and “Republican, Conservative, Independence.” Because Undersheriff Forsythe appeared in these photographs while in uniform, we have concluded that he used his official authority to affect the result of an election in violation of the Hatch Act. Although we have concluded that Undersheriff Forsythe violated the Hatch Act, we have decided to close our file in this case without further action. Undersheriff Forsythe has been ‘warned that if in the future he engages in Hatch Act-prohibited activity while employed in a Hatch Act-covered position, we would consider such activity to be a willful and knowing violation of the law that could result in disciplinary action. Please contact me at (202) 804-7086 if you have any questions. Sincerely, Kelley E. Nobriga Attorney, Hatch Act Unit