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By Collin Breaux and Lillian Boyd
City Council candidate Howard Hart is halting campaign activity as federal officials investigate an allegation from political opponent John Alpay that he violated the Hatch Act. A candidate forum initially scheduled for Tuesday, Oct. 6, has been indefinitely postponed.
The Hatch Act of 1939, An Act to Prevent Pernicious Political Activities, is a United States federal law that, in general terms, prohibits civil service employees in the executive branch of the federal government from engaging in some forms of political activity. Alpay’s complaint asserts that because Hart is an employee for the U.S. Department of Homeland Security, a federal agency—and because Alpay has received endorsements from the Libertarian Party—Hart is violating the Hatch Act by running in a partisan election.
Experts, however, say City Council elections are traditionally nonpartisan. Alpay alleges his own acceptance of a political party endorsement makes the race partisan and means Hart is in violation.
“California local elections are largely nonpartisan because of a historical desire to limit political party participation in local government,” said Beth Rotman, Director of Money in Politics & Ethics for Common Cause. “These nonpartisan schemes are seen as a means to more efficient and responsive local governments, meanwhile eliminating a perception that political party bosses and party operators could control or even potentially corrupt local government.”
Common Cause is a Washington, D.C.-based nonpartisan organization that works toward transparency and accountability in government.
Complaint Filed to Office of Special Counsel
Alpay’s complaint was submitted to the U.S. Office of Special Counsel (OSC) on Sunday, Sept. 27. Pending a determination of the allegation, Hart is now ceasing campaigning activities. The complaint alleges that because Alpay has received endorsements from both the Orange County Libertarian Party and the California Libertarian Party, the race is now considered partisan—therefore, a violation of the Hatch Act.
“The Hatch Act was designed to instill trust at all levels of government, including at the local level,” Alpay stated in a press release issued on Sept. 28. “Howard Hart’s current employment as Regional Training Administrator for the Department of Homeland Security unmistakably subjects him to the federal Hatch Act. The Hatch Act provides that no current Executive Branch employee can run for office in a partisan election.”
In the complaint submitted to OSC, Alpay argues that the Hatch Act restriction on being a candidate for office bars any Executive Branch employee from running for any elective public office where any of the candidates in the election run as a Democrat, Republican, Libertarian or Green, or as representing any political party whose presidential electors received votes in the last presidential election.
While Hart distinguished that his campaign is not suspended, he has decided to cease all political activity pending an OSC decision. He’s since removed campaign signs and disabled campaign accounts on social media. According to Hart, the OSC is waiting for the Libertarian Party to reconsider their endorsement for Alpay before rendering an opinion. In order to protect his livelihood, Hart says he will abide by whatever is forwarded in the OSC opinion.
“This is about the residents of District 5,” Hart said. “Speaking as a fellow neighbor, I thank them from the bottom of my heart for their overwhelming support, and care shown towards myself and my family. What is just and right will ultimately prevail.”
OSC Communications Director Zachary Kurz said the agency cannot comment on or confirm whether they have any specific open Hatch Act investigations.
“Once an investigation is complete, OSC’s findings are typically provided to only the complainant and the subject of the complaint,” Kurz said.
Alpay has also alleged Hart has violated City Council Policy 011, approved in 1993, which covers a code of ethics for city council members and appointed officials, and further called for Hart to step down from his position on the city’s planning commission—to which he was appointed to in 2019.
Alpay says that Hart is disingenuous and alleged Hart’s campaign has continued campaigning behind the scenes.
“Early on in the campaign, Mr. Hart affirmatively encouraged me to report to the relevant authorities any known violations by his campaign as he would do the same. Before doing so here, we afforded him the courtesy of withdrawing before going public,” Alpay said. “His only reply was an email blast announcing new campaign events. This email blast was sent directly to my campaign manager, who neither lives in San Juan Capistrano and certainly did not sign up to receive his emails.”
A representative for Hart’s campaign said Alpay’s claims about the email blast are false since their now-cancelled Community Service Day email was sent on Friday, Sept. 25th, at 6:04 p.m. and his email was received the same day at 6:55 p.m., and subscribers only receive email updates by signing up for their newsletter.
Both Hart and Alpay are running for the District 5 seat, which is currently held by Brian Maryott. Maryott is running in the 49th Congressional District race against incumbent Rep. Mike Levin.
All five sitting councilmembers have endorsed Hart, including Mayor Troy Bourne, who says he is surprised and disappointed in Alpay.
“I believe his efforts to create a technical roadblock to Mr. Hart’s and District 5 voters’ participation in the upcoming election is underhanded and disingenuous,” Bourne said.
Alpay said he has not spoken directly to Bourne, and Bourne has not reached out to him. The Capistrano Dispatch asked Alpay how he anticipated being able to work alongside council should he win the election.
“The real question is how would Troy and the other Council members feel about sitting on the dais with someone who has and continues to knowingly break federal law,” Alpay said.
Libertarian Party Considering Rescinding Endorsement for Alpay
The California Libertarian Party could be rescinding their endorsement of Alpay during a Special Executive Committee meeting based on allegations he violated a non-aggression certification members are required to accept when becoming Central Committee Members.
The Capistrano Dispatch received documentation of a correspondence from the California Libertarian Party notifying Alpay of the meeting.
“You are invited to attend and fully participate in this meeting, and to give your response to these allegations. You may also have additional members of your campaign team, or other witnesses, on this meeting,” Mimi Robson, chair for the Libertarian Party of California, said. “Also, please be aware that this is an open meeting and representatives of the Hart campaign, as well as other interested parties, will likely be on the call.”
The non-aggression certification requires members to “certify that I oppose the initiation of force to achieve political or social goals.” The Capistrano Dispatch asked Alpay for his response to the possibility his endorsement would be rescinded.
“Are you suggesting that the Hart campaign is in communication with the state party?” Alpay said. “That sounds like continued campaigning and an on-going violation of law by Howard Hart and his team.”
Hart expressed his utmost respect for the Libertarian Party.
“I am confident that they will adhere to their values of non-coercion,” Hart said.
Attorney with Government Watchdog Group Questions Basis for Violation
In an email, Rotman with Common Cause told The Capistrano Dispatch that an endorsement should not have any bearing on whether a local election becomes partisan.
“While parties may still endorse candidates in most nonpartisan elections, some voters believe this defeats many of the goals of nonpartisan systems,” Rotman said. “Some localities have even amended their state constitutions to prohibit endorsements.”
However, Rotman concluded, that an individual receiving an endorsement does not transform a nonpartisan election into a partisan one.
While Hart said he respected Rotman’s opinon, he says Alpay has put his livelihood in peril and will therefore abide by the OSC’s opinion.
“Actions speak louder than words and Howard Hart’s purported announcement of a suspended campaign after consulting with legal counsel is hard to ignore,” Alpay said when asked about Rotman’s statement.
As for the potential policy violation, City Attorney Jeff Ballinger said his office is reviewing the city council policy, and could provide comments as soon as Wednesday, Oct. 7.
The California Libertarian Party’s Special Executive Committee meeting to consider rescinding Alpay’s endorsement will be held Monday, Oct. 5, at 8 p.m. over Zoom. Should Alpay hold onto the endorsement, it remains unclear when the OSC will make its determination on whether Hart violated the Hatch Act.
This is a developing story.