ChiefDqmty Joel Ordway

5!23 State Route 248

Canisteo, NY 14823
U.S. OFFICE OF SPECIAL COUNSEL
l730 M N.W., Suite 2.1R
D.C. 21J03ti..450S
202-254-3li00
October 16, 2008
VIA E-MAIL (ordwa;:jr@co.swuben.ny.us) & U.S. MAlL
Re: OSC File No. HA-08-3223
Dear Mr. Ordway:
This letter is in respt>ose: to information that the Office of Special Counsel (OSC) received
concerning the Hatch Act and your candidacy in the partisan election for the office of Sheriff of
Steuben County, New York. We understand that you are cunently the Chief Deputy for the
Steuben County Sheriffs Office (Sheriffs Office) in New York. For the reasons explained
below, this letter serves as notice that your current candidacy for Steuben County Sheriff is in
violation of the Hatch Act.
The Hatch Act, 5 U.S. C. 1501-1508, restricts the political activity ofindividuals
principally employed by state, county, or municipal executive agencies in connection with
programs financed in whole or in part by loans or grants made by the United States or a federal
agency. 5 U.S.C. 1501. lt has long been established that an officer or employee of a state or
Jocnl agency is subject to the Hatch Act if, as a normal and foreseeable incident of his principal
position or job, he performs duties in connection with an activity financed in whole or in part by
federal funds. In rc Hutchins, 2 P.A.R. 160, 164 (1944); Special Counsel v. Gallagher, 44
M.S.P.R. 57,61 (1990). Coverage is not dependent on the source of an employee's salary, nor is
it dependent upon whether the employee actually administers the funds or has policy duties with
respect to them. Sec Special Counsel v. Williams, 56 M.S.P.R. 277, 283-84 (1993); !!lEQ,
Williams v. M.S.P.B., 55 FJd 917 (4'" Cit. 1995). Sec also In re Palmer, 2 P.A.R. 590 (1959),
rerna11ded, Palmer v. United States Civil Service Commission, 191 F. Supp. 495 (S.D. HI. 1961),
rev'd, 297 F.2d 450,454 (7
1
" Cir. 1962), cert. denied, 369 U.S. 849 (1962) (individual who
em]llPYccs \YITCJ .. .....
because of his oversight responsibilities for those activities, even if his salary is not federally
funded and he has no direct duties in connection owith those programs). An employee covered by
the Act may not be a candidate for public office in a partisan election, i.e., an election in which
any candidate represents, for example, the Republican or Democratic Party. 5 U.S.C.
l S02(a)(3).
As Chief Deputy for the Sheriffs Office you directly oversee the Criminal Incident
Response Team (ClRT team), Criminal Investigations Unit (CIU), Civil Division, Cou.rt and
Building Security Division, Communications Division (Dispatch), Road Patrol Division, and
Navigation Division. Your responsibilities in this position also include the following: directing
U.S. Office of Spedal Counsel
Page 2
and the day-to-day operations of the above listed departments; providing training of
all personnel within those departments; and conducting public relations activities for the
Sheriff's Office. Lastly, we w1derstand that you are third in the chain-of-command ofthe
Sheriffs Office and report directly to the Undersheriff, Mr. David Cole.
Accordir\g to information obtained by OSC, the Sheriff's Office;; rcceives the following
federal funding: (I) an Edward Byrne Memorial Justice Assistance Grant (Byrne Grant) from the
U.S. Department of Justice; (2) a Commercial Equipment Direct Assistance Program Grant
(CEDAP Grant) from the U.S. Department of Homeland Security (D!-IS); and (3) an additional
equipment grant from DHS (DHS Grant).
1
ShcriffTweddell explained that the Byrne Grant is awarded to the Sheriff's Office for
narcotics investigations and finances officer overtime salaries. As to the CEDAP Grant, we
understand that the grant was awarded to purchase an Advanced Thermal Imager device. Lastly,
as you stated in a conversation with our office, you have applied for the DHS Grant to purchase
equipment for the C!RT team.
In relation to the federal funding received by the Sheriff's Office, SheriffTweddell stated
that as Chief Deputy you are responsible for researching grants, applying for grants, purchasing
equipment financed by the grant, handling grant administrative requirements, and supervising the
staff administering the program funded by the Byrne Grant.
Accordingly, we believe that yoll have dillies in connection with federally funded activities
and are covered by the provisions of the Hatch Act. As explained earlier, an employee covered
by the Act may not be a candidate for public office in a partisan election, i.e., an office for which
any candidate is to be nominated or elected as representing, for example, the Republican or
Democratic Party.
Thus, tbis letter serves as notice that OSC has reasonable grou.nds to bdieve that your
current candidacy for Steuben County Sheriff is in violation of the Hatch Act. Rather than
pursue disciplinary action against you at this time, we arc providing you with an opportunity to
immediately come into compliance with the law. You may withdraw your candidacy or resign
from your employment with the Sheriffs Office. Failure to pursue one ofthese actions could
fesufis Iii cllsCfpHi1a.ljaction cnargi:s Meri!Systcms
Protection Board.
If you choose to withdraw your candidacy, you must infonn the appropriate election
official that you are withdrawing from the election and follow his or her instructions as to what
actions arc necessary to effectuate your withdrawal. Also, you must make a public
announcement of your withdrawal and cease all campaign activities, including organizing or
1
Wr! believe the Sheriffs Office several other federal granrs. However, we have no.t rcccivr::d n
list.
U.S. Office of Special Counsel
Page 3
encouragi.ng a write-in candidacy; fundraising, soliciting, or accepting campaign contributions:
appearing at campaign functions or meet and greets; having a campaign website; distributing
campaign materials; at1d holding yourself out as a candidate.
However, if despite your best efforts to withdraw your candidacy, you arc elected because
your name remained on the ballot, be advised that you woul.d have been elected in violation of
the law (i.e., via a partisan election). Thus, altl1ough the Hatch Act does not prohibit an
employee from being appointed to or holding public office, under these circumstances, if you are
elected and you accept the position, the Hatch Act Unit will consider your acceptance a
significant aggravating factor causing us to reopen this case and warranting a recommendation to
the Special Counsel to prosecute this matter. Cf. SRecial Counsel v. Bradford, 69 M,S,P.R. 24 7,
250 (1995) (finding that tbe accepting and holding of a seat obtain(:d in violation of the law is
relevant in the context of imposing an appropriate penalty); ln re Schmitt, 1 P.AK 798, 799
(1959) ("refusal to accept the fruit of a prohibited contest may be considered evidence of good
faith").
Please provide OSC with evidence of your withdrawal or resignation by October 30, 2008,
Please contact me at (202) 254-3663 if you have any questions regarding this matter,
Sincerely,
' 7 / c h ~
Nicole Eldredge
Attorney
Hatch Act Unit