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. 

John Alpay

“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.”

Howard Hart

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.

About The Author Capo Dispatch

comments (5)

  • Howard Hart is violating Federal employment policy. Hart continued violating the Hatch Act by contacting the Libertarian Party. He is prohibited, no matter what the reason, to contact any party for his campaign political management. His contacting the Libertarian is in direct violation of the Hatch Act, political management/issue advocacy policy. Read it for yourself here:

    U.S. OFFICE OF SPECIAL COUNSEL
    1730 M Street, N.W., Suite 218 Washington, D.C. 20036-4505 202-804-7000
    July 29, 2020
    Mr. Howard Hart U.S. Citizenship and Immigration Services 24000 Avila Road, Room 4105 Laguna Niguel, California 92677 VIA EMAIL: hhart@yahoo.com Re: OSC File No. AD-20-000048

    Dear Mr. Hart:
    This letter is in response to your request for an advisory opinion concerning the Hatch Act. The U.S. Office of Special Counsel is authorized pursuant to 5 U.S.C. § 1212(f) to issue opinions interpreting the Hatch Act. Specifically, you asked whether the Hatch Act would prohibit you, an employee with U.S. Citizenship and Immigration Services (USCIS), from being a candidate for city council in the city of San Juan Capistrano, California. As explained below, assuming partisan politics do not enter the campaigns of any of the city council candidates, the Hatch Act would not prohibit your candidacy. The Hatch Act governs the political activity of federal civilian executive branch employees, including USCIS employees. 1 Among other things, the Hatch Act prohibits employees from being candidates for public office in partisan elections. 2 An election is partisan if any candidate is nominated or elected as representing, for example, the Republican or Democratic Party. OSC understands that the election for San Juan Capistrano City Council is designated nonpartisan and that party affiliation is not listed on the ballot. While the Hatch Act prohibits candidacy in a partisan election, it does not prohibit candidacy in a nonpartisan election. Accordingly, the Hatch Act does not prohibit you from being a candidate in the nonpartisan election for city council. Usually a nonpartisan election is designated as such by state or local law. The law, however, creates only a rebuttable presumption that an election is nonpartisan. 3 Evidence showing that partisan politics actually entered a candidate’s campaign may rebut this presumption. 4 But no bright-line rule exists that identifies the type or amount of conduct (either

    1 See generally 5 U.S.C. §§ 7321-7326. 2 5 U.S.C. § 7323(a)(3). 3 See Special Counsel v. Yoho, 15 M.S.P.R. 409, 413 (1983). 4 See McEntee v. Merit Sys. Prot. Bd., 404 F.3d 1320 (Fed. Cir. 2005)

    U.S. Office of Special Counsel
    Page 2

    by the candidate or party) needed to prove that a statutorily designated nonpartisan election, in fact, became a partisan one. 5 Each case will present a unique combination of facts that will either show that the candidate was politically independent or not. 6 So, the ultimate answer regarding what activity may change a nonpartisan election into a partisan one rests on the totality of the circumstances.
    7 Accordingly, a nonpartisan election could become partisan if, for instance, one of the candidates were to: participate in and win a party caucus; hold himself out as having the party’s political support by advertising this in his speeches, flyers, or mailings; seek and advertise the political party’s endorsement; or receive party support in the form of supplies (e.g., wooden stakes for signs, bulk mail permit), campaign volunteers, campaign publications (e.g., flyers, posters), or use of party headquarters. Please note, that the foregoing list is illustrative only and is not an exhaustive list of the unique combination of facts that could change a nonpartisan election into a partisan one.

    In conclusion, while the Hatch Act does not prohibit you from being a candidate in the nonpartisan election for the San Juan Capistrano City Council, you would need to refrain from engaging in any of the types of activities discussed above. In addition, should any of the other candidates engage in these types of activities, the presumption that the election is nonpartisan may be rebutted. If that were to occur, the Hatch Act would prohibit you from continuing to run for city council while employed by the federal government.
    If you have any questions, please contact Hatch Act Unit attorney Sherri Borman at (202) 804-7103.
    Sincerely,
    Erica S. Hamrick
    Deputy Chief
    Hatch Act Unit

  • I guess we’ll see if Mr Sanchez is correct in his “pronouncement” after the Libertarian Zoom meeting tomorrow night.

    https://ca.lp.org/calendar/

  • SJC City Council and it’s associated elective process is not partisan by California state law. If an endorsement by a political party were able to turn it into a partisan council, this would have happened many years ago.
    Former Mayor David Swerdlin was endorsed by the Orange County Republican Party.
    Former Mayor Sam Allevato was endorsed by the Orange County Republican Party.
    Swerdlin and Allevato campaign literature put in writing that city council candidate Laura Freese did not deserve to be elected to SJC city council because she was a Democrat. (Sorry David, I know how your view the ‘D’ word.)

    Our City Council election is not partisan.
    Regards, Dave Solt

  • Well the Libertarian Party met last night in a zoom call to consider rescinding Alpay’s endorsement. It was a very interesting meeting to say the least. It is my understanding that Mr Alpay needed needed 10 votes. The results were (I think) 8 no votes and 5 abstentions. Too bad, so sad. The good news is that District 5 voters will have a choice for City Council representation.

  • Mechelle Lawrence Adams Reply

    The winner should win from good old fashioned efforts, campaigning, canvassing, and public discourse. Not litigating their way to a seat. I took it seriously and lost because the other candidate out campaigned me. That’s the way it should be. I cannot support Alpay’s approach and voted in a way that matches my conscience. Our town is so precious and doesn’t benefit from these tactics in my humble view.

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