Hatch Act questions arise over Richard Del Toro fundraising email

Richard Del Toro

Republican Richard Del Toro, St. Lucie County Sheriff candidate, distributed an e-vite claiming law enforcement leaders backed his candidacy.

But such political activity by officers in an official capacity may violate Hatch Act limits. It could even impact Del Toro’s own activity as a candidate, as he currently serves as Port St. Lucie’s interim Police Chief.

And at one point, Del Toro’s campaign attributed Fort Pierce Chief Diane Hobley-Burney as part of a host committee for a fundraiser. Yet she has made no endorsement in the race, and said she never will.

The controversy comes in the midst of a heated race for Sheriff. Gov. Ron DeSantis appointed St. Lucie Sheriff Keith Pearson, a Republican, following the surprise resignation by Democratic Sheriff Ken Mascara. Pearson currently faces three opponents in a GOP Primary, including Del Toro, Preston DiFrancesco and Rich Williams.

Del Toro has quickly rallied local support from regional leaders. But his campaign also appeared to tout support from local law enforcement prematurely. A fundraiser e-vite widely circulated in the community and obtained by Florida Politics included the names of police, attributing them with the title of chief, including Sheriff’s Office Chief Deputy John Budensiek, Hobley-Burney and Stuart Police Chief Joe Tumminelli.

But Budensiek said he did not want to appear on the flier. “I should not have my name on any host committees representing myself as a Chief Deputy,” he said.

While Budensiek supports Del Toro for Sheriff, he said the Hatch Act prohibits partisan activity in his official capacity. He told the campaign as much when he saw what he believed to be a draft invitation, and asked to have his name removed.

He pointed to guidance from the National Sheriffs Association on the Hatch Act. It states that while public employees maintain the right to participate in politics as private citizens, they may not “use official authority or influence for the purpose of interfering with or affecting the results of an election or a nomination for office.”

The same guidance also says covered employees may not be candidates for public office or partisan elections.

The hatch doesn’t impact elected officials. The e-vite in question includes a number of state representatives on the host committee, and even former Sheriff William Snyder, but that’s no problem because all of those officials were elected to their post. The same isn’t true for chiefs.

Hobley-Burney also cited the Hatch Act and said she initially asked for her name to be taken off the invitation. Just as a practical matter, the Chief said she has no intention of being involved in the Sheriff’s race. Her agency works with both the Sheriff’s Office and the Port St. Lucie Police Department, and she does not want her working relationship with either Pearson or Del Toro compromised.

But she was dismayed that the document circulated in the community regardless.

“How it got out there, I do not know,” she said. “Once I learned of it, when someone else sent it to me, I spoke to Rich Del Toro personally and I told him I do not endorse and did not allow this to happen. I explained that under my official capacity, it should not have been done.”

Del Toro told Florida Politics the e-vite with Hobley-Burney’s and Budensiek’s name was not supposed to be widely released.

“I am proud of our campaign and the continued success of our community events,” he said in a statement. “Last week a draft invitation was inadvertently circulated that underwent several revisions prior to being finalized.  Our team is grateful for the community’s support and looks forward to more successes in 2024.”

Indeed, a final version of the e-vite provided by the campaign dropped both Budensiek’s and Hobley-Burney’s name. But it left Tumminelli, and still listed him on the host committee with the title of chief.

Tumminelli, who lives in St. Lucie County but leads a Martin County municipal police force, said he’s supporting Del Toro as an individual, and that has nothing to do with the city of Stuart or the police department. He attended the fundraiser, but in civilian clothing, he said.

“At no point was there any intention of utilizing my authority as such to influence anything,” he said. “That’s the least of what I was worried about. This was an after-hours event.”

He also questioned if the Hatch Act applied to the situation. He pointed to numerous political endorsements issued in other Florida races by state attorneys, lawmakers, and even law enforcement officers. Del Toro’s campaign also questioned if the Hatch Act applies involving state and local employees.

Passed in 1939, the Hatch Act primarily prohibits political engagement by employees of the federal government but also restricts many state and local government officials working at any agency that received federal funding, including police departments.

The matter has impacted political activity by police in the past. Last year, two Tennessee police chiefs were accused of violating the Hatch Act when they endorsed a candidate for Judge, as reported by Tennessee Lookout.

The Florida Attorney General’s office referred questions around the Hatch Act to Washington, as it involved federal statute. Officials at U.S. Office of Special Counsel said restrictions do apply whenever those employees act in an official capacity. “If an election is partisan, then a covered employee may not endorse candidates in that election in an official capacity,” said Zachary Kurz, a spokesperson for the OSC.

Questions have also been raised whether Del Toro could even run for Sheriff and still hold his job as chief in Port St. Lucie. In 2006, the OSC determined a Maryland county police chief had to retire from his post in order to run for county council, as covered at the time by The Washington Post.

The Hatch Act Modernization Act, passed by Congress in 2012, changed federal statute so covered employees can now seek partisan office. But federal guidance still strictly regulates how covered employees involve themselves in campaigning.

“The Hatch Act continues to prohibit covered state or local government employees from engaging in coercive political conduct or misusing their official authority for partisan purposes,” reads an opinion provided by the OSC. That means candidates cannot wear uniforms in advertisements or at events.

As a candidate, Del Toro has some leeway in using his title as chief. “The Hatch Act does not restrict candidates from limited use of their official title in connection with their own campaign,” the guidance reads. But it must be done only in presenting qualifications for the office sought.

“An employee may not, however, use her official title and/or position when, for example, signing campaign communications and solicitations or identifying herself on campaign signs (e.g. “Vote for Chief Deputy Joan Smith”). Doing so would create the impression that she is running in her official capacity with the authority of the agency behind her, and as such, would violate the Hatch Act. Moreover, she may not use her title and/or position when endorsing other candidates or political parties.