Wednesday, August 22, 2007

Something is Rotten in....

The State of Denmark and the Montgomery County District Attorney’s Office.

Three years ago Lou Sessinger, in a column in the May 4, 2004 Intelligencer, asked these questions:

If the offices of the top law enforcers in a county or state are so heavily influenced by politics that one's employment in such an office can be jeopardized by the "correctness" of one's politics, what is the average citizen supposed to think?

To what extent can the average citizen who happens to support the "wrong" party or who fails to support the "right" party expect fairness from a prosecutor's office that is so political it eats its own young if they're perceived to be disloyal?

He was talking about the Montgomery County DA’s office, in regards to matters discussed later in this post. And he has an excellent point.

Risa Vetri Ferman, currently first assistant district attorney, is running on the GOP ticket for District Attorney, since current DA Bruce Castor is running on the GOP ticket for County Commissioner, with incumbent Jim Matthews. Recently an employee of the District Attorney’s Office, more specifically Ferman’s administrative assistant, has drawn media attention for being on the payroll of Castor’s and Ferman’s campaigns and doing other part-time work for the local Republican party. Ferman conducted an investigation and found no wrongdoing, but basically she investigated herself, her campaign, and her office staff, and this just never looks good.

The situation came to light when County Controller Eric Kretschman received an email from the administrative assistant during what he said were office hours. Kretschman might have ulterior motives as his re-election plans were, for all intents and purposes, scuttled when another Republican who was planning to challenge him in the primary, questioned, with supporting evidence, some of the signatures on his ballot petitions. The challenger was another assistant district attorney, Bob Sander, who continues to work in the DA’s office while running for Controller. (“Kretschman: No coverup in Ferman’s office,” by Margaret Gibbons, Times Herald 8/07/07

It brings to mind another situation with an assistant district attorney a few years ago. Christian Marrone, who served as vice chairman of the Whitemarsh GOP while working as an ada, supported the party’s endorsed candidate for state Attorney General, Tom Corbett, over Castor, who ran against Corbett in the primary and lost. Prior to that Marrone had expressed interest in running for the 13th congressional district seat eventually won by Allyson Schwartz. Castor fired Marrone, who landed on his feet with a DC job.

As reported in the May 2, 2004 Intelligencer (“ADA who supported boss’s rival gets fired,“ by John Anastasi):, a Pennsylvania political news Web site, reported late last week that Castor tried to fire the former Penn State football star and son-in-law of Philadelphia state Senator Vincent Fumo because Marrone supported Corbett in his race against Castor. The report attributed a quote to Castor indicating that Marrone "made the wrong decision and (has to) live with the consequences."

"First of all, I didn't attempt to fire him, I did fire him," said Castor. "Second, I never made such a statement. But I see nothing wrong with the statement had I made it."

Castor explained that a district attorney could legally fire one of his assistants for any reason, even if the reason is based on the candidate the assistant supports.

"I can't say that happened in this case ... I'm not commenting on the reason Marrone was fired," he said. "But (in general) an ADA represents the DA and the DA relies on their loyalty and discretion and that they won't advance an agenda contrary to my own."

It was these comments that led to the column by Sessinger quoted at the top of this post. A similar situation in Bucks County in 2001 was also mentioned; more on this later.

Yet in an article in the Springfield Sun this past April (“Peter Amuso: DA’s office won’t be political farm system,” by Margaret Gibbons 4/26):

"I have been in this office for 15 years and I have never seen politics interfere with the business of this office," responded county First Assistant District Attorney Risa Vetri Ferman, a 42-year-old Abington Republican seeking her office's top job.

Maybe she was sick the day Christian Marrone was fired.

The DA’s office almost sounds like a political soap opera. I’m sure the assistant district attorneys, who work hard for much less than they would make in private practice, would prefer to focus on their work than be drawn into political intrigues. However, if they do want to dabble in electioneering there are no rules to prevent it. In other locales there are. In Philadelphia, for example, if an assistant district attorney wants to run for office he or she must resign before doing so.

Not having a clear policy, in writing, can lead to misunderstandings. In 2001 Terry Houck, a Bucks County prosecutor, decided to run for district attorney, against Diane Gibbons, who had been appointed to the job in 2000 when the long time DA resigned to accept a judicial position. According to an April 19, 2001 Inquirer article (“D.A.’s race pits the incumbent against her former employee,” by Stephanie Doster):

When Houck told Gibbons in February that he would run against her as a Democrat, she demanded his resignation, citing a 16-year-old policy that prohibited prosecutors from running for elected office. Houck refused to step down, and Gibbons, a Republican, fired him.

Houck said he had never heard of such a policy.

Later in the article one prosecutor said he was aware of the policy but another was quoted as saying he was not. Either something is in the personnel manual or it isn’t and if a paper copy of the rule can’t be produced the rule isn’t much of a rule.

The Democratic candidate for Montgomery County District Attorney Peter Amuso would enact new rules, as spelled out in an April press release:

* No prosecutor will run for political office while employed as an assistant district attorney.
* No prosecutor will serve as a committeeperson, an area leader or in any other office or position in a political party.
* No prosecutor will manage, serve on the staff of or volunteer for a political campaign.
* No prosecutor will solicit contributions for a political candidate.
* No prosecutor will engage in political activity in the office or while on duty.

This would not prevent people from attending fundraisers or debates or being educated voters. It just keeps them out of the active political process. Nor are these rules unusual. Below are four examples of existing rules for employees of various levels of government.

Hatch Act for State and Local Employees

The Hatch Act applies to executive branch state and local employees who are principally employed in connection with programs financed in whole or in part by loans or grants made by the United States or a federal agency. Employees who work for educational or research institutions which are supported in whole or in part by a State or political subdivision of the State are not covered by the provisions of the Hatch Act.

Employees of private nonprofit organizations are covered by the Hatch Act only if the statute through which the organization receives its federal funds contains language which states that the organization shall be considered to be a state or local agency for purposes of the Hatch Act, e.g., Headstart and Community Service Block Grant statutes.

An employee’s conduct is also subject to the laws of the state and the regulations of the employing agency. Additionally, employees should be aware that the prohibitions of the Hatch Act are not affected by state or local laws.
• Permitted Activities
• Prohibited Activities
• Penalties for Violating the Hatch Act
• Advisories for State and Local Employees

Permitted Activities
Covered state and local employees may-
• run for public office in nonpartisan elections
• campaign for and hold office in political clubs and organizations
• actively campaign for candidates for public office in partisan and nonpartisan elections
• contribute money to political organizations and attend political fundraising functions
Prohibited Activities
Covered state and local employees may not-
• be candidates for public office in a partisan election
• use official authority or influence to interfere with or affect the results of an election or nomination
• directly or indirectly coerce contributions from subordinates in support of a political party or candidate
Penalties for Violating the Hatch Act
If the Merit Systems Protection Board finds that the violation warrants dismissal from employment, the employing agency must either remove the employee or forfeit a portion of the federal assistance equal to two years salary of the employee. If the Board finds the violation does not warrant the employee's removal, no penalty is imposed.


§ 10-107. Political Activities.
(1) No person shall seek or attempt to use any political endorsement in connection with any appointment to a position in the civil service.
(2) No person shall, for the purpose of influencing the vote or political action of any person, or for any consideration, use or promise to use, directly or indirectly, any official authority or influence, whether possessed or anticipated, to secure or attempt to secure for any person an appointment or advantage in appointment to a position in the civil service, or an increase in pay or other advantage in employment in any such position.
(3) No officer or employee of the City and no officer or employee of any governmental agency whose compensation is paid from the City Treasury shall, from any person, and no officer or member of a committee of any political party or club shall, from any civil service employee, directly or indirectly demand, solicit, collect or receive, or be in any manner concerned in demanding, soliciting, collecting or receiving, any assessment, subscription or contribution, whether voluntary or involuntary, intended for any political purpose whatever. No officer or member of the Philadelphia Police or of the Fire Department shall pay or give any money or valuable thing or make any subscription or contribution, whether voluntary or involuntary, for any political purpose whatever. 30
(4) No appointed officer or employee of the City shall be a member of any national, state or local committee of a political party, or an officer or member of a committee of a partisan political club, or take any part in the management or affairs of any political party or in any political campaign, except to exercise his right as a citizen privately to express his opinion and to cast his vote.
(5) No officer or employee of the City, except elected officers running for re-election, shall be a candidate for nomination or election to any public office unless he shall have first resigned from his then office or employment.
(6) Any officer or employee of the City who violates any of the foregoing provisions of this section shall, in addition to any penalties provided for hereafter, be ineligible for one year for any office or position under the City.

Pennsylvania Code, Chapter 29, Subchapter M adopted November 24, 1998, effective immediately, 28 Pa.B. 6068, unless otherwise noted.

§ 29.471. Definitions.
(a) The term “partisan political activity” shall include, but is not limited to, running for public office, serving as a party committee-person, working at a polling place on Election Day, performing volunteer work in a political campaign, soliciting contributions for political campaigns, and soliciting contributions for a political action committee or organization, but shall not include involvement in non-partisan or public community organizations or professional groups.
(b) The term “court-appointed employees” shall include, but is not limited to, all employees appointed to and who are employed in the court system, statewide and at the county level, employees of the Administrative Office of Pennsylvania Courts, Court Administrators and their employees and assistants, court clerks, secretaries, data processors, probation officers, and such other persons serving the judiciary.
§ 29.472. Prohibition of Partisan Political Activity.
(a) Court-appointed employees shall not be involved in any form of partisan political activity.
(b) This prohibition shall not apply to court-appointed employees who are duly sworn Court-appointed full-time masters and members of Board of Viewers, who are attorneys in good standing admitted to the practice of law in this Commonwealth, who may become candidates for higher judicial office. Said employees shall, during such candidacy, be subject to the provisions of the Code of Judicial Conduct and, particularly, Canon 7, which governs judicial campaigns.
§ 29.473. Termination of Employment.
Except as provided in paragraph 2(b), above, henceforth, a court-appointed employee engaging in partisan political activity shall cease such partisan political activity at once or shall be terminated from his or her position. In the event an employee chooses to become a candidate for any office, such employee shall be terminated, effective the close of business on the first day of circulating petitions for said office.
§ 29.474. President Judge.
The President Judge of each appellate court or county court of common pleas shall be responsible for the implementation of these guidelines and shall be subject to the review of the Judicial Inquiry and Review Board for failure to enforce.

Commonwealth of Pennsylvania. Governor’s Office. Management Directive 580.25 Political Activities of Classified Service Employees

1. SCOPE. Applies to all classified service employes in state agencies identified in Section 3(d), Civil Service Act of August 5, 7941, l?L. 752, as amended, and political subdivisions of the Commonwealth which have contracts with the State Civil Service Commission (SCSC) for services and facilities as provided for in Section 212, Civil Service Act.

a. All classified service empioyes, regardless of status, are subject to Section 905.2 (Political Activity) of the Civil Service Act.
b. The Federal Hatch Act (Chapter 15, Title 5, United States Code) continues to apply to both classified service and non-classified service employes connected with programs wholly or partially financed by federal grants or loans. The Federal Hatch Act contains language regarding prohibited and permitted political activities which may differ from the State Civil Service Act.
c. Executive Order 1980-18, Code of Conduct, Part 1, Paragraph 8, also restricts certain
political activities of all Commonwealth employes, including classified service employes, in the Executive Branch under the Governor’s jurisdiction.
d. Exceptions:
(1) The provisions of Section 905.2 of the State Civil Service Act DO NOT apply to persons who have been furloughed or are currently on leave without pay because they are considered to be separated from the classified service. Upon returning to any classified position, including employment of a temporary nature, the employe must immediately cease ail partisan political activities. However, the empioye may complete a term of
public office if appointed or elected before returning from furlough or leave.
(2) An empioye holding an elected public office before beginning civil service employment may complete the balance of the term of office:
(3) Classified service empioyes may run for and hold the office of School Board Director.
However, empioyes should be aware that the Federal Hatch Act continues to apply and may prohibit empioyes covered by the Civil Service Act from running for or holding the office of School Board Director.
(4) Empioyes allowed to complete the term of public office as described in d.(i) and (Z), or who run for or hold the office of School Board Director may NOT engage in political activities while in office

An information sheet is attached to the policy providing other examples and further information.

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