AGO 2010-4.

• Case Date: October 18, 2010
• Court: Indiana

Indiana Attorney General Opinions 2010. AGO 2010-4. October 18, 2010OFFICIAL OPINION 2010-4Mr. Steven J. JohnsonExecutive DirectorIndiana Prosecuting Attorneys Council302 W. Washington St., Room E-205Indianapolis, Indiana 46204 Dear Mr. Johnson: You have requested an opinion regarding whether or not the prosecuting attorney's office in Indiana is covered under the Federal Hatch Act. It is my opinion that in Indiana, the prosecuting attorney's office is not considered a "state or local agency" under the Hatch Act. Brief Answer Indiana offices of prosecuting attorneys do not fall under the definition of "state or local agency" for purposes of the Hatch Act. Because Indiana law shows that prosecuting attorneys are not a part of the executive branch of government, the prosecutors and their employees are not covered by the Act. Analysis Originally passed in 1939, The Federal Hatch Act was enacted to prevent certain government employees from participating in partisan political activity in hopes that it would prevent misuse of government funds. The Office of Special Counsel (OSC) has the important responsibility of investigating alleged violations of the Hatch Act. See 5 U.S.C. § 1216(a)(2). If the OSC brings charges, they are adjudicated by the Merit Systems Protection Board (Board). See 5 U.S.C. §§ 1504 - 1508. At the state and local level, the Hatch Act applies to employees of State or local agencies whose "principle employment is in connection with an activity which is financed in whole or in part by loans or grants made by the United States or a federal agency." 5 U.S.C. § 1501(4). A "State or local agency" is defined as the "executive branch of a State, municipality, or other political subdivision of a State, or an agency or department thereof" 5 U.S.C. § 1501(2). The Merit Systems Protection Board uses state law to determine whether a particular agency is a part of the executive branch of a state. See Ohio v. United States Civil Service Commission, 65 F. Supp. 776 (S.D. Ohio 1946), Special Counsel v. Bissell, 61 M.S.P.R. 637, 642 (1994). In Bissell the Merit Systems Protection Board took up the certified question of "whether the Tennessee Public Service Commission (TPSC) is an entity within the meaning of 5 U.S.C. § 1501(2)." Bissell at 639. In short, the Board had to determine if the TPSC belonged to the executive branch...