SANTA ANA — I was going to let this go, partially out of pity for a guy who jumped into political quicksand and can’t seem to find something to grab hold of to pull himself out. But unfortunately Jose “Joe” Moreno keeps wading deeper and deeper into the mud. On Saturday, Moreno sent out a press release that he claims refutes the allegation that his candidacy for the State Assembly violates the Hatch Act. To put it mildly, Joe just doesn’t get it, and apparently never will.
The Hatch Act is a federal law enacted in 1939 that prohibits federal employees, and state and local municipal workers whose jobs are paid for in part or in whole with federal funding, from seeking partisan elected office. Moreno seems to feel that even though his job with the County of Orange Social Services Agency is funded by federal dollars, the Hatch Act does not apply to him. His reasoning is that the 2012 Primary election is a non-partisan selection since the top two vote-getters move forward to the general election, regardless of their party affiliation.
In his email release Moreno wrote:
A 2008 Federal Judge ruling that was upheld by the Supreme Court of the United States clearly supports my contention that our new non-partisan “Open Primary System”, is absolutely not a partisan election. In fact, our own California Secretary of State, refers to our California Voter Approved election system as a “voter nominated system.”
I’m unable to figure out how the case that Moreno cites applies to the Hatch Act and his primary contest. While the U.S. Supreme Court found the top-two primary in Washington State constitutional, that doesn’t mean those or California’s legislative contests are non-partisan where the Hatch Act comes into play. By placing all his eggs in this basket, Moreno is taking a big risk.
LiberalOC has a vast amount of information that it has gathered over the years regarding the Hatch Act. A quick review of our resources found that the Office of Special Counsel provides a set of FAQ’s to answer questions about the Hatch Act. One of those specifically addresses how a non-partisan election can become a partisan election, triggering the Hatch Act. (Emphasis Mine)
Can a nonpartisan election become partisan?
Answer: Yes. If state or local law mandates a nonpartisan ballot for a particular local office, there will be a presumption that the election for that office is nonpartisan. If evidence is presented, however, that shows that partisan politics actually enter the campaigns of the candidates, e.g., the employee solicits the endorsement of a partisan group, advertises the endorsement of a political party, or uses the party’s resources to further her campaign effort, the nonpartisan election can be transformed into a partisan one in violation of the Hatch Act.
On March 27th, Andrew Galvin over at the Orange County Register wrote a profile of Jose Moreno in Total Buzz, Lone Republican takes on four Democrats in 69th. From Galvin’s story:
With Hammond’s departure shortly before the filing deadline, there was no Republican in the 69th district race. Moreno called Scott Baugh, chairman of Orange County’s Republican Party, to ask if the party would pay his candidacy fees. After meeting Moreno for the first time, Baugh agreed.
In a phone interview, Baugh said he talked with Moreno about “the realities of that being a difficult seat for a Republican to win.”
Moreno “seemed eager and enthusiastic to go out and give it his best shot,” Baugh said, “and one of the reasons we like to field candidates in every district is it provides infrastructure support for our general get-out-the-vote operations.”
Moreno seals his fate with his comment in the story about County Clerk-Recorder Tom Daly, who is also a candidate for the same Assembly seat.
Daly, the only non-Hispanic in the race, has a reputation as a moderate, business-friendly Democrat. A familiar name, he’s likely to attract Republican votes. That prospect makes Moreno feisty.
“He’s coming across like he’s the Republican candidate,” Moreno said of Daly. “He’s not the Republican. I’m the Republican — the Republican who is like the average 69th district voter.”
Moreno is either stupid or deluded if he believes that his candidacy is non-partisan. It is partisan, and his own actions prove that it is.
But Moreno goes off the deep-end with the following from his release:
The Hatch Act has been used against my candidacy, which has resulted in a significant threat to my employment, which is my family’s main source of income and benefits. Shamefully, I have even been subjected to coordinated intimidation, which in my opinion has been unconstitutional and extreme.
I have steadfastly stated that I have absolutely not politicized my employment position to benefit my campaign. I do not have the ability to award jobs, government contracts, grant pay raises or give any other special favors in exchange for political support yet my main opponent, who is a County official, has done so and he is continually allowed to do so with no repercussions.
While some might say that this is business as usual, I say it is wrong regardless of one’s political point of view. This extrajudicial attempt to end my candidacy will not end government corruption, nor will it strengthen our democracy, instead it only serves to undermine our electoral process.
If Moreno is referring to fact that people have told him that they think he is violating the Hatch Act and that he should withdraw, he has a warped perception of intimidation. His suggestion that Daly, a county official, is being allowed to violate the Hatch Act is wrong. As an elected department head, Daly is exempt from the provisions of the Hatch Act.
Moreno isn’t being picked on. Absent a contrary opinion from the OSC stating that he is not covered, Moreno is subject to prior opinions of the OSC. Those opinions strongly indicate that he is covered by the Hatch Act and that he’s likely in violation of the act.
Unfortunately Moreno is going to have to accept that the facts of his situation are not the result of some extrajudicial attempt to end his candidacy. Eventually his employer, the County of Orange Social Services Agency, will be forced by the financial reality of the Hatch Act’s penalties to let him go.