All savvy politicians know a whisper campaign can take down an opponent faster than an outright lie.
So what better way to advance one's candidacy than by revealing one's challenger is under federal investigation?
Earlier this month, El Paso County Sheriff Terry Maketa issued a press release saying his primary opponent, Monument Police Chief Jake Shirk, was being investigated by the U.S. Office of Special Counsel, an independent federal investigative and prosecutorial agency, for a complaint alleging he violated the Hatch Act. The act restricts certain government workers from running for office.
Suddenly, Maketa's campaign said, the candidacy of Shirk, who grabbed 44 percent of the county assembly vote as a political nobody in the race for only two months, was in question.
Maketa, who flip-flopped about running in January saying he'd lost interest, now is fighting for a third term and using the Hatch Act as a weapon.
But is the complaint legit, and who filed it? Everyone is guessing, because even Shirk hasn't been allowed to see it.
Clear to run?
The Hatch Act was adopted in 1939 to bar federal employees from partisan politics after evidence surfaced that Works Progress Administration money had been used for political patronage. The act has since expanded to ban state and local candidates from running if they hold jobs with authority over federal funds. Incumbents are exempt from the Hatch Act.
According to a 2009 article written by Jason Miller, a law clerk to a U.S. Sixth Circuit Court of Appeals judge, if a Hatch Act violation is found and the state or local agency refuses to remove the employee-candidate, the agency loses federal funds equal to twice the employee's annual salary. However, the Hatch Act can't be used to remove a candidate from office once elected.
Shirk, paid roughly $80,000 a year as police chief, says he hasn't given a thought about resigning or dropping out of the race, because he believes the complaint is frivolous and "absolutely" political. "There's going to be complete vindication," he says.
Calling the law "arbitrary and confusing," Miller notes an assistant district attorney in an office that receives federal funds can be fired under the Hatch Act for challenging his boss in an election, while the incumbent DA strolls to another term. The amount of federal funds doesn't matter. The Hatch Act barred a police chief from running for sheriff in New York state because the city received $594 in federal funds, Miller reports. After the funds were returned, the chief was allowed to run.
In Colorado this year, the Hatch Act has arisen several times. Claudia Alexander, a Republican seeking an Eagle County commissioner seat, resigned as a property manager for a low income and senior housing project because it receives federal HUD money. Her Democratic opponent, the incumbent, isn't subject to the act.
A $200 campaign
In Shirk's case, the Monument Police Department received roughly $200 from the state-run and federally funded Click It or Ticket seatbelt campaign last year and another grant to buy protective vests. Because both predated Shirk's candidacy, Denver attorney Ryan Call, who's advised the state Republican Party and various GOP candidates, including Shirk, says he believes Shirk is clear to run.
But an Office of Special Counsel investigator is still combing through programs handled jointly by Monument police and other agencies, Call says.
Maketa has authority over lots of federal grants for equipment and programs, but, like other incumbents, isn't subject to the act, which is often referred to as an incumbent protective device. It discourages competition.
Another issue: If the complaint is kept secret by the Office of Special Counsel until the investigation is completed, how did Maketa know about it?
Most people were in the dark until Maketa's June 9 statement, saying, "It has been brought to the attention of our campaign committee Jake Shirk's candidacy may be in question, due to his alleged violation of FEDERAL LAW [Maketa's emphasis] concerning various provisions of the Hatch Act. If this matter has not been resolved, we believe it may be very problematic and bring into question the legality of his candidacy."
Asked how Maketa knew of the complaint, his campaign manager Wendy Habert, a former sheriff's office employee, says the information came "from numerous sources."
"People have been discussing the topic of the Hatch Act since Mr. Shirk announced his candidacy," she says, "including the Indy blogs..." Glad to know they're watching our blog so closely, but we found no references to the Hatch Act on our website until after Maketa issued the press release.
What bothers Call is that Maketa went public with information about a pending investigation. Call says disclosures that interfere with a federal investigation are a violation of federal law.
"Is it appropriate for a county sheriff to be talking about a federal investigation in a preliminary way when there's been no determination, especially when the complaint itself hasn't been made public?" Call says. "It does raise some questions."
Call says the public won't know who filed the complaint until the investigation is complete, which he hopes will be within days or weeks, hopefully before the Aug. 10 primary election.