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UPDATED: Jinkins may be violating federal ban on office-seeking

Post by Lewis Kamb / The News Tribune on Oct. 22, 2010 at 1:58 pm | 23 Comments »
October 22, 2010 4:46 pm

(UPDATE 4:44 p.m: New comments included from Jinkins at bottom of post.)

A Tacoma public health official campaigning as a Democrat for the state house may be violating federal law and ineligible to run for elected office, The News Tribune has learned.

Laurie Jinkins

Laurie Jinkins, the Tacoma-Pierce County Health Department’s deputy director, seeks to fill the vacant 27th District House seat representing parts of Tacoma and Fife.

But because Jinkins’ employer – the health department – receives federal funds, her partisan candidacy may be prohibited under the federal Hatch Act, according to a review of the law and information provided by the United States Office of Special Counsel.

“It has long been established that an officer or employee of a state or local agency is subject to the Hatch Act if, as a normal and foreseeable incident of his principal position or job, he performs duties in connection with an activity financed in whole or in part by federal funds,” Terilyn Dentino, attorney for the OSC’s Hatch Act Unit, wrote in an e-mail to the newspaper.

Jinkins said this week she did not seek an advisory opinion from the OSC before declaring her candidacy, “because it takes them about 10 months to issue an opinion.”

But Jinkins, a former assistant state attorney general, said she read the law and also sought advice from a private lawyer.

“It was one of the things that I looked at very closely before I decided to run,” Jinkins said. “As far as I can tell, I’m not violating the Hatch Act.”

Jinkins’ opponent in the race – fellow Democrat and two-term Tacoma City Councilman Jake Fey – isn’t so sure.

“From my read, it looks to me like she potentially violated the act,” said Fey.

Fey, who also works for a federally-funded public agency – he serves as director of Washington State University Extension Energy Program – appears to be exempt from the act, because it doesn’t apply to “individuals employed by educational or research institutions,” according to the OSC’s website.

A determination as to whether Jinkins is violating the federal law has not been made. OSC officials, who are authorized to investigate potential violations, declined to say whether they’ve received a complaint or are now actively investigating the matter.

Dentino’s email provided general opinions and cited case law in response to The News Tribune’s questions, based on facts about Jinkins’ employment and candidacy.

“Whether an individual is covered by the Hatch Act is a very fact specific inquiry,” Dentino noted. “… If the employee is covered by the Hatch Act, she would be prohibited from running as a candidate in a partisan election.”

Passed in 1939, the civil Hatch Act prohibits federal executive branch employees from engaging in partisan political activities. The law also extends to employees of local and state executive agencies who work “in connection with programs financed in whole or in part by federal loans or grants,” according to Dentino and clarifying case law.

As it relates to Jinkins, the operative part of the law appears to lie in the “in connection with” clause.

Jinkins has served as the health department’s deputy director for three years, handling the 270-employee agency’s day-to-day internal operations and overseeing its $36 million annual budget.

The $154,000 she makes in yearly pay and benefits is not paid by federal funds, but several programs within the department are federally funded. In recent years, about one-fifth of the agency’s budget consists of federal dollars, records show.

The question is: Does Jinkins’ work constitute “duties in connection with federally financed activities?”

Jinkins contends it does not.

“My salary isn’t paid using federal funds,” Jinkins said. “I’m not a decision-maker over where federal funds go. My job in terms of internal operations, it’s not about the programs that receive federal funds. And I don’t have anyone reporting to me that has authority over federal funds.”

Dentino and other OSC officials did not respond to follow-up questions about whether generally serving as a federally-funded department director constitutes a violation.

But other lawyers familiar with the law have specifically advised it applies to the kind of duties Jinkins performs.

“Whether the employee’s salary is paid by federal funds is not a relevant consideration,” Larry H. James, General Counsel for the National Fraternal Order of Police, wrote in a white paper on the Hatch Act.

James noted such duties that have been held to be “in connection with” a federally-funded activity have included an employee’s overall responsibility for the operations of federally-funded departments, reviewing federal grant applications and preparing annual reports regarding federal funding, among other activities.

Jinkins’ job description says she’s responsible for “planning, coordinating, evaluating and marketing major programs within the various divisions and the Department as a whole.” Her duties “may also include … preparing grant and program proposals.”

And, as a top budget official, she prepares and presents reports about the agency’s annual spending plan. In June, she delivered a presentation on the department’s 2011 budget that cited the agency’s use of federal dollars, records show.

Jinkins, who formally registered as a candidate in March, has been on unpaid leave from the department since July. Her reason for taking leave “wasn’t done specifically because of the Hatch Act,” she said, but “to focus on my campaign and to not mix my job and the campaign.”

Still, Jinkins said her on-leave status should be considered when viewing her candidacy in light of the law.

“My understanding is when folks look at the Hatch Act (to determine if a violation exists), they look at all facts and circumstances surrounding it,” she said.

Regardless of whether a restricted employee is working or on leave, the law’s prohibitions would still apply, Dentino said.

“If the employee is covered by the Hatch Act, she would be required to either resign from her Hatch Act covered position or withdraw her candidacy,” Dentino wrote. “Taking a leave of absence … during her campaign would not be sufficient to bring the employee in compliance with the law.”

The Jinkins-Fey race pits two well-liked Democratic candidates in a battle for the 27th District’s blue-leaning Position 1 seat, left open by Rep. Dennis Flannigan’s retirement.

Facing Fey and three others in the primary, Jinkins won the most votes and has since easily outraised Fey, the primary’s runner-up, for donations heading into the final days before the Nov. 2 general election.

Before declaring his candidacy, Fey said he checked about the Hatch Act with a WSU vice president and an assistant attorney general who advises the university.

“If that educational exemption wasn’t there, I wouldn’t have run,” Fey said. “The risk is not just putting people through the whole exercise, but it’s a show-stopper.”

Fey, who, as a city representative, now sits on the health board Jinkins reports to, said he has not filed a Hatch Act complaint against Jinkins.

But he added: “I’m aware that there are people that are concerned about it.”

Jinkins has run a positive campaign based on her qualifications as a longtime community activist and government administrator. She has won endorsements from a host of prominent officials, as well as from The News Tribune’s editorial board, who called her “a surefire leader.”

A potential Hatch Act violation by Jinkins for her state House campaign could put her employment or health department funding at risk.

If an investigation finds “the violation warrants dismissal … the employing agency must either remove the employee or forfeit a portion of its federal assistance equal to two years salary of the employee,” Dentino wrote.

A violation could also impact Jinkins’ future job options. The act prohibits an employee removed due to a violation from working at any state or local agency within 18 months, “or the agency from which the employee was removed may lose some of its federal funding,” Dentino wrote.

But should Jinkins make it to Election Day – and win — nothing in the federal law could undo her victory.

The federal Merit Systems Protection Board, which determines discipline for Hatch Act violators, “does not have the authority to invalidate the results of an election,” Dentino said, “even if the employee ran for public office in violation of the Hatch Act.”

Jinkins said Friday if the OSC were to advise her she is subject to the law, “I’ll do whatever they need me to do.”

UPDATED: Laurie Jinkins sent The News Tribune the following comments after publication of this blog post this afternoon:

Thanks for taking the issues I raised to your afteroon meeting. As I scoot out to my son’s soccer practice and you to a weekend off (hopefully), I just wanted to be clear about my request.

I believe that the headline and lead on the hatch act story are inaccurate and need to be adjusted. The headline and lead, suggest that I may somehow not be able to serve as a legislator. In fact, if found to be in violation of the hatch act, a candidate has three options 1) stop campaigning, or 2) make whatever adjustments are necessary to continue running and keep their job, or 3) resign from their job. There is nothing in the act that prohibits me from serving.

Obviously, I do not believe I’m in violation of the hatch act, otherwise I would have done one of the three above. I’ve done everything I can to make sure that I’m not violating the act.

I’m asking that you make the headline more accurate and that you either include some of my comments or some more accurate approach in the lead paragraph.

Please call me if you’d like to discuss it further. Thanks for the consideration. laurie jinkins

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