Applicability of Hatch Act to Service by United States Attorney and Assistants as Delegates to the Virgin Islands Constitutional Convention

May 31, 1977
77-31 MEMORANDUM OPINION FOR THE
DIRECTOR OF THE EXECUTIVE OFFICE
FOR UNITED STATES ATTORNEYS
United States Attorney, Virgin Islands—Hatch Act
Applicability
This responds to your request for our opinion regarding the applica­
bility of the Hatch Act or any other law or regulation to the questions
posed by the United States Attorney for the Virgin Islands. The first
question is whether employees of the Department of Justice (including
the attorney and his or her assistants) may run for and serve as dele­
gates to the forthcoming Virgin Islands constitutional convention; and,
if so, whether they must or should take a leave of absence from their
official positions during the proceedings of the convention.
The U.S. Attorney describes as a given “the nonpolitical, nonpartisan
description of the Office of Delegate to the Constitutional Convention,”
and he has forwarded the relevant Virgin Islands legislation authorized
for enactment by Congress in Pub. L. No. 94-584, 90 Stat. 2899. So far
as relevant here, the Federal statute merely authorizes the Virgin Is­
lands legislature to call a convention to draft a constitution for local
self-government. The Virgin Islands legislation sets forth the qualifica­
tions of delegates as follows (§ 4):
(a) a citizen of the United States; and
(b) a qualified elector of the Virgin Islands; and
(c) a resident of the legislative district from which he or she has
been elected for not less than three years immediately preceding
the date of election.
It further provides in § 6 for a special election for delegates and that
“no political party symbols nor political party designation shall appear
on any ballot.”
The Hatch Act, 5 U.S.C. § 7321 et seq., does not prohibit the pro­
posed activity. Section 7326(b) states that political activity of Federal
executive branch employees is not prohibited where the activity is “in
connection with . . . a question which is not specifically identified with
a National or State political party or political party of a territory or
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possession of the United States.” The section goes on to state that
“questions relating to constitutional amendments, referendums, approval
of municipal ordinances, and others of a similar character, are deemed
not specifically identified with a National or State political party or
political party o f a territory or possession of the United States.” It is
clear that the activity here involved is not prohibited.1
The applicable regulation appears in 28 CFR § 45.735.19, which
merely embodies the restrictions of the Hatch Act. We also note that
with respect to 5 U.S.C. § 7326, the Federal Personnel Manual states
that “Even if section 7326 permits the political activity involved in
securing and holding an office, the holding o f the office must not
interfere with the efficient discharge of the duties of the Federal office.
On this question the head o f the Federal department or agency is the
sole judge.” We believe that this is an issue for you to decide in the
light of whether the functions of the Virgin Islands office nevertheless
can be effectively carried on; obviously, the officials involved should
not be absent from their jobs for protracted periods that would leave
their offices vacant or be unduly diverted from performing their normal
tasks.
As to the second question, concerning a leave of absence, we are not
aware of any legal requirement therefor. It may be that what is meant
is “leave without pay.” O n this point we refer you to the Federal
Personnel Manual, Chapter 630, Subchapter 12. The appropriate offi­
cials in the Office of Management and Finance should also be
consulted.
L eon U lm an
Deputy Assistant Attorney General
Office o f Legal Counsel
1 It should be no ted that in 1966 this Office advised the D eputy A ttorney G eneral that
the H atch A c t did not permit a U nited States A ttorney to run for the office o f delegate
to a S tate constitutional convention w here the delegates w ould be nom inated by their
political parties and run under the p arty name and emblem.
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