Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1:04-cv-01376-KAJ Document 52-3 Filed 03/16/2005 Page 1 0f4
EXHIBIT A
PLAINTIFFS’ ANSWERING BRIEF IN
OPPOSITION TO NEW CASTLE COUNTY’S
MOTION TO DISMISS

Case 1:04-cv-01376-KAJ Document 52-3 Filed 03/16/2005 Page 2 of 4
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Mr. William Narcowich
2807 Rickdale Road
Wilmington, DE. i98l0—3433
Re: OSC Pile No. HA—O4·.289O
Dear Mr. Narcowich:
This letter is in response to information the Office of Special Counsel received
from you concerning allegations that Ms. Sherry l*`ree`uery’s candidacy in a partisan
election for New Castle County Executive in September 2004 may have violated the
Hatch Act, At the time of Ms. Freebery’s alleged activity, she was employed as the Chief
Administrative Officer of New Castle County After reviewing this infomation, we
believe that Ms Freebery was covered by the Hatch Act, and therefore, her candidacy
violated the Act. However, for the reasons stated below, we have decided to close our
tile in this matter.
The Hatch Act (5 U.S.C. §§ 1501-1508) restricts the political activity of
individuals 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. lt has long been established that an officer or
employee of a state or local agency is subject to the Hatch Act if, as a normal and
foreseeable incident of her principal position or job, she performs duties in connection
with an activity tinanced in whole or in part by federal funds ln re Hutchins, 2 PAR.
160, 164 (1944); Special Counsel v. Gallagher, 44 M.S.P..R. 57 (i990). An employee
covered by the Act may not be a candidateifor public office in a partisan election, ie., an
election in which any candidate represents, for example, the Republican or Democratic
Party
We understand that New Castle County receives grants from a number of federal
agencies, including the Federal Emergency Management Agency, and the Departments of
Housing and Urban Development, Agriculture, and Justice. These funds are primarily
managed by four departments within New Castle County, namely the Community
Services Department, the Department of`Land Use, the Police Department and the
Finance Department.
ln a conversation with our office, Ms. Freebery stated that she is a political
appointee of the County Executive. She executes the orders ofthe County Executive, and
assists the County Council in carrying out its mandate. She also stated that she does not
have any duties in connection with the federal funds received by the County, and that her

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knowledge ofthe federal funds received by the County arises because ofher familiarity
with the budget
We also spolte with Mr. Torn Gordon, County Executive. He stated that Ms.
Freebery works for him on such activities as proposing legislation and getting bills
passed. He also said that Ms Freebery does not have duties in connection with the
federal funds received by the County because staff within the departments that receive
federal funds manage and perform all duties in connection with these funds. Further, Mr
Gordon stated he is the individual who has oversight responsibilities and signs paperwork
for the federal grants
In addition, we spoke with officials in the County’s Land Use, Police and
Community Services Departments who stated that the duties pertaining to the federal
grants, such as day-to—day management, are performed by the Departments’ staff and not
by Ms, Freebery. However, Ms. Freebery reviews and approves the Police Departments
pre-grant application for federal grants and signs paperwork approving the use ofthese
grants to hire police officers.
Notwithstanding Mr Gordon’s and Ms. Freebery’s description of her duties, we
note that New Castle County Code § 14.01.006 gives Ms. F reebery as CAO the authority
to accept, enter an appendix to the grants budget, and authorize expenditures from grants.
These grants include federal grants. Further, an official in the County’s Finance
Department explained to our office that the County’s Chief Financial Officer (CFO)
sends a letter to Ms. Preebery for her approval ofthe grants budget prior to its submission
to the County Council.! Ms. Freebery stated to our office that she does not perform the
functions in § 14.01.006 because she believes they have been delegated long—terrn to the
County’s Finance Department. However, she acknowledged that since she reviews the
County’s budgets when they are completed, it is possible that she performs this same
function for the County’s grants budget Additionally, Ms. Freebery stated that she
ensures that County managers provide information about federal grants in a timely
manner to the Finance Department for the preparation ofthe budget Moreover,
information on the County’s website state that the CFO, who is responsible for the
County’s overall financial management and policy, including federal grants, reports
directly to Ms Freebery.
Based on the preceding, we believe that as a normal and foreseeable incident ofl\/is
Freebery’s position with New Castle County, she performed duties in connection with
federally funded activities at the time of the primary election. Therefore, her candidacy
was in violation ofthe Hatch Act. Nonetheless, in this instance, we have decided to close
our file in this matter. The penalty for violating the Hatch Act for state and local
employees is removal from employment. §_gg 5 U.S.C.. § l505. Because Ms Freebery is
no longer employed by New Castle County, even if we were to conclude that her
' We were unable to verify this information with Ms Freebery’s superior, Mr Gordon

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violation warranted prosecution, we would be unable to receive meaningful disciplinary
action. Furthermore, we have decided to take no further action in this matter because we
understand that the U.S. Attorney’s Office in Delaware has an ongoing criminal
investigation that, among other things, involves Ms Fr·eebery’s political activities,
Please contact me at (800) S5· matter
Sincerely, F
Mariarna Liverp e _ ·
Attorney
Hatch Act Unit