DHS v. Hughes

1 5 U.S.C. §§ 1501-1508 (2002).
2007 UT 30
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Utah Department of Human Services, 	No. 20050610
Petitioner,
v.
Brent N. Hughes and Career Service 	F I L E D
Review Board,
Respondents. 	March 27, 2007
---
Writ of Review from Career Service Review Board
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Debra J. Moore, J.
Clifford Petersen, Asst. Att’ys Gen., Salt Lake City,
for petitioner
Phillip W. Dyer, Carey A. Seager, Salt Lake City, for
respondent Hughes
Robert W. Thompson, Salt Lake City, for respondent
Review Board
---
On Certification from the Utah Court of Appeals
DURRANT, Justice:
INTRODUCTION
¶1 	This case concerns the Hatch Act (or the “Act”), a
federal statute that prohibits state employees whose principal
activity is directly related to a federally financed program from
running for elective office. 1 	Respondent Brent Hughes was
terminated by the Utah Department of Human Services (the
“Department”) from his position as a collections/compliance
supervisor based on the Department’s determination that he had
violated the Hatch Act by running for a seat in the Utah House of
Representatives.

2 Utah Admin. Code r. 477-9-4(6) (2004) (amended 2006).
No. 20050610 	2
¶2 	On appeal, the Utah Career Service Review Board (the
“State Board”) rescinded the Department’s letter terminating
Hughes. 	The State Board held that the federal Hatch Act preempts
state law, including agency rules and policies, and that only the
federal Merit Systems Protection Board (the “Federal Board”) can
make final determinations regarding alleged Hatch Act violations.
Thus, the State Board concluded that the Department exceeded its
authority in determining that Hughes violated the Hatch Act.
Additionally, the State Board noted that Hughes had been treated
differently from other employees, in potential violation of his
due process rights.
¶3 	We hold that, in enacting the Hatch Act, Congress did
not intend to preempt state law. 	Indeed, the Hatch Act’s very
purpose is to provide an incentive for states to comply with its
provisions and help achieve its overarching goals. 	Accordingly,
state agencies may voluntarily comply with the Hatch Act and make
independent determinations regarding perceived violations of the
Act with respect to their employees. 	We therefore reverse the
State Board’s decision and remand so that the State Board may
determine the sufficiency of Hughes’s due process claim.
BACKGROUND
¶4 	On March 17, 2004, a few months before his termination,
Brent Hughes filed his candidacy to run for a seat in District 20
of the Utah House of Representatives. 	On June 18, 2004, Hughes
was terminated from his employment as a collections/compliance
supervisor in the Office of Recovery Services in the Utah
Department of Human Services due to his failure to respond to the
Department’s request that he comply with the federal Hatch Act
and the Department’s conflict of interest policy.
¶5 	The Department’s conflict of interest policy provided
as follows: “During work time or during off time, when an
employee’s principal activity is directly related to a federally-
financed program . . . employees may not . . . be a candidate for
political office.” 	This policy explicitly referred to the Hatch
Act, which prohibits state employees whose principal activity is
directly related to a federally financed program from running for
elective office. 	Additionally, in 2004, agency rules gave the
executive director authority to investigate the validity of any
alleged Hatch Act violations 2 and terminate an employee for

3 Id. r. 477-11-2(2)(d) (2007).
4 See Utah Code Ann. § 67-19-18 (2006).
5 See id. § 67-19-18(1)(a)-(b) (stating that career service
employees may be dismissed “to advance the good of the public
service” or “for just causes such as . . . malfeasance”).
3 	No. 20050610
“adequate cause” 3 in accordance with certain statutory
procedures. 4 	Also, as part of every federal grant received by
the Department, the Executive Director signed an agreement
certifying that the Department would comply with the Hatch Act.
¶6 	Hughes had been employed by the State since October
1979. 	On or about March 17, 2004, the Department learned that
Hughes was a candidate for political office. 	Hughes’s position
with the Department’s Office of Recovery Services was financed in
whole or in part by federal funds, like most positions within the
office.
¶7 	On May 7, the Department advised Hughes that his
candidacy violated the Hatch Act and gave him one week to comply
with the Hatch Act by resigning his employment or withdrawing his
candidacy. 	On May 13, the Department offered Hughes a third
option of taking an unpaid leave of absence, pending the result
of the election. 	The next day, Hughes asked for clarification of
what would happen if he did not select one of the three options.
The Department informed Hughes that his employment would be
terminated if he failed to select one of the three options and
gave Hughes until May 21 to make his decision.
¶8 	Hughes did not exercise any of the above options, and
on June 1, 2004, the Department issued him a notice of intent to
dismiss. 	The notice stated that the reason for dismissal was
“malfeasance,” consisting of violating the Department’s conflict
of interest policy and failing to advance the good of the public
service by deliberately violating the Hatch Act. 5
¶9 	Hughes requested and received a pretermination hearing
before Executive Director Arnold-Williams. 	On June 18, 2004,
Arnold-Williams officially terminated Hughes’s employment.
¶10 	Hughes appealed his termination to the Career Service
Review Board. 	An evidentiary hearing was then held before a
State Board hearing officer. 	At the conclusion of the
Department’s case-in-chief, Hughes moved for a directed verdict,
based in part on his due process claim that the Department had
applied the Hatch Act inconsistently, treating him differently

No. 20050610 	4
from other employees. 	The hearing officer denied the motion,
concluding that, among other things, any inconsistent treatment
was because Hughes’s circumstances were different than those of
previous employees.
¶11 	In his November 2, 2004 Findings of Fact, Conclusions
of Law, Decision and Order, the hearing officer reversed the
Department’s decision to terminate Hughes’s employment, holding
that the Department was not authorized to enforce the Hatch Act
and therefore had not met its burden of showing a Hatch Act
violation. 	He concluded that “[o]nly the United States Merit
Systems Protection Board can make a determination that a party
. . . ‘absolutely, definitely, specifically, etc.’ violated the
Hatch Act,” and that the executive director’s saying a party
violated the Hatch Act “does not make it so.” 	The hearing
officer also found that Hughes’s violation of the Department’s
conflict of interest policy was premised on a violation of the
Hatch Act. 	This finding was based upon testimony from Arnold-
Williams, who specifically testified during cross-examination
that if there had been no alleged violation of the Hatch Act,
there would have been no other basis for discipline.
Additionally, the hearing officer again rejected Hughes’s due
process claim that the Department treated him differently from
other employees, concluding that Hughes’s claim was not
sustainable.
¶12 	Because the hearing officer found that the Federal
Board had exclusive jurisdiction to determine whether a Hatch Act
violation had taken place, he held that the State had “not met
its burden to show that the [Department] complied with all
relevant statutory and administrative requirements as to showing
‘adequate cause’ when terminating [Hughes’s] employment.” 	He
therefore rescinded the Department’s Final Decision-Dismissal
letter of June 18, 2004.
¶13 	The Department appealed the hearing officer’s decision
to the State Board. 	The Department argued that the Federal Board
does not have exclusive authority to determine violations of the
Hatch Act and that the hearing officer erred in requiring that
the Federal Board determine that the Hatch Act had been violated
before the Department could terminate an employee for violating
the Department’s conflict of interest policy. 	The State Board
heard oral argument and then issued its Decision and Final Agency
Action on June 17, 2005, affirming the decision of its hearing
officer. 	The State Board noted, however, its “deep concern” that
Hughes had been treated differently from other employees who had
allegedly violated the Hatch Act.

6 Associated Gen. Contractors v. Bd. of Oil, Gas & Mining,
2001 UT 112, ¶ 18, 38 P.3d 291.
7 See 5 U.S.C. §§ 1501-1508 (2002) (pertaining to “Political
Activity of Certain State and Local Employees”).
8 Id. § 1501(4).
9 Id. § 1502(a)(3).
10 See id. § 1506.
5 	No. 20050610
¶14 	The Department appealed the State Board’s final agency
decision to the Utah Court of Appeals pursuant to Utah Code
section 78-2a-3(2)(a). 	The Utah Court of Appeals certified this
case to us, and we have jurisdiction pursuant to Utah Code
section 78-2-2(3)(b).
STANDARD OF REVIEW
¶15 	The Career Service Review Board’s final agency decision
raises “general questions of law”; therefore, we apply a
correctness standard, granting no deference to the agency’s
decision. 6
ANALYSIS
¶16 	The federal Hatch Act directly regulates the political
activity of federal employees and indirectly regulates the
political activity of certain state and local government
employees. 7 	It covers state and local employees “whose principal
employment is in connection with an activity which is financed in
whole or in part by loans or grants made by [the federal
government].” 8 	The Hatch Act’s primary language states that such
employees “may not . . . be a candidate for elective office.” 9
The Hatch Act authorizes the federal government to withhold
funding to state agencies where agencies or their employees fail
to comply with the Act. 10
¶17 	It is clear that Hughes, whose principal employment was
financed in whole or in part by federal funds, violated the Hatch
Act when he filed his candidacy to run for elective office.
Thus, the key issue in this case is whether the Department may
voluntarily comply with the Hatch Act by making independent
personnel decisions based on perceived violations of the Act. 	In
other words, does the Hatch Act preempt state law, leaving
jurisdiction solely to the federal Merit Systems Protection Board
to make final determinations regarding alleged violations of the
Act?

11 Id. § 1504.
12 See id. (“When a Federal agency . . . has reason to
believe that the officer or employee has violated section 1502 of
this title, it shall report the matter to the Special Counsel.
On receipt of the report or on receipt of other information which
seems to the Special Counsel to warrant an investigation, the
Special Counsel shall investigate.” (emphasis added)).
13 Id.
14 Id. § 1505(1)-(2).
15 Id. § 1505(3).
No. 20050610 	6
¶18 	We hold that the Hatch Act does not preempt state law.
Thus, the Department may voluntarily comply with the Hatch Act
and make personnel decisions accordingly. 	Moreover, we hold that
the State Board has authority to review such decisions made by
the Department or any other state agency.
¶19 	We will first discuss enforcement of the Hatch Act and
how it relates to the issue of federal preemption. 	Second, we
will discuss the congressional intent in passing the Hatch Act
and how the State Board’s decision is at odds with the Act’s
overall purposes. 	Finally, we will briefly discuss Hughes’s due
process claim, which we remand to the State Board for further
consideration.
I. 	ENFORCEMENT PROVISIONS OF THE FEDERAL HATCH ACT
¶20 	The Hatch Act authorizes the federal Office of Special
Counsel (the “OSC”) to prosecute alleged violations of the Act. 11
Such violations occur when federal employees or, as in this case,
certain state employees engage in political activity prohibited
by the Act. 	The OSC investigates reports of alleged violations
filed by federal and state agencies, or even the public, 12 and
then presents its findings and any charges based on those
findings to the Merit Systems Protection Board. 13 	After an
opportunity for a hearing before the Federal Board, in which the
relevant employee and state agency are entitled to appear, the
Federal Board determines whether a violation has occurred and
whether the violation warrants the employee’s removal from his or
her employment. 14 	If the Federal Board determines a violation
has occurred that warrants the employee’s removal, it notifies
the offending employee and state agency of its final
determination and orders the removal of the employee. 15 	The
state agency must then comply with the Federal Board’s removal

16 See id. § 1506.
17 Id. § 1506(a)(1)-(2). 	Additionally, the Federal Board
may order the withholding of funds to the initial state agency if
“the State or local officer or employee has been removed and has
been appointed within 18 months after his removal to an office or
employment in the same State in a State or local agency which
does not receive loans or grants from a Federal agency.” 	Id.
§ 1506(a)(2).
18 English v. Gen. Elec. Co., 496 U.S. 72, 78-79 (1990).
7 	No. 20050610
order or risk the loss of federal funding. 16 	If the state agency
does not remove the offending employee from his or her employment
within thirty days after notice from the Federal Board, the
Federal Board certifies an order to the appropriate federal
agency requiring it to withhold from its loans or grants to the
noncomplying state agency an amount equal to two years’ pay at
the rate being received by the offending employee at the time of
the violation. 17
¶21 	The State Board erroneously concluded that this federal
enforcement scheme preempted state law. 	We now reverse the State
Board’s decision because such federal preemption is at odds with
the congressional intent and overall purposes of the Hatch Act.
In the next section, we will discuss federal preemption, the
intent and purposes of the Hatch Act, and the fundamental
inconsistencies of the State Board’s decision.
II. 	THE HATCH ACT DOES NOT PREEMPT STATE LAW
¶22 	The United States Supreme Court has identified two
types of federal preemption--express and implied. 18
Express preemption, often referred to as
“complete preemption,” exists where a federal
statute states an intent to preempt state
law. 	By contrast, the Supreme Court has
recognized that a federal statute implicitly
overrides state law either when the scope of
a statute indicates that Congress intended
federal law to occupy a field exclusively, or
when state law is in actual conflict with
federal law. 	These scenarios of implied
preemption have acquired their own labels and

19 Utah Div. of Consumer Prot. v. Flagship Capital, 2005 UT
76, ¶ 11, 125 P.3d 894 (internal quotation marks and citations
omitted).
20 Mount Olivet Cemetery Ass’n v. Salt Lake City, 164 F.3d
480, 486 (10th Cir. 1998).
21 Flagship Capital, 2005 UT 76, ¶ 13.
22 Id. ¶ 12 (noting express federal preemption in “certain
causes of action under the Labor Management Relations Act of 1947
and the Employee Retirement Income Security Act of 1974 (ERISA)”
(citations omitted)).
23 Id. ¶ 21 (quoting English, 496 U.S. at 79).
No. 20050610 	8
have become known as “field preemption” and
“conflict preemption,” respectively. 19
¶23 	The State Board based its decision on an implied field
preemption analysis. 	Thus, we discuss only briefly express
preemption and implied conflict preemption and their application
to the Hatch Act in this case. 	We will then discuss implied
field preemption as it relates to the Department’s authority to
independently determine violations of the Hatch Act and
voluntarily comply with its provisions.
A. 	There Is No Express Preemption of State Law
¶24 	Express preemption occurs “when the language of the
federal statute reveals an express congressional intent to
preempt state law.” 20 	The Hatch Act contains no explicit
statement “delivered in a clear congressional voice” 21 that
reflects an intent to preempt state law, including agency rules
and policies regarding the political activity of state employees.
Indeed, we recently noted that the United States Supreme Court
has found express preemption in only two circumstances, neither
of which involved the Hatch Act. 22
B. 	There Is No Implied Conflict Preemption of State Law
¶25 	State law is also preempted to the extent that it
actually conflicts with federal law. 	“Thus, the [United States
Supreme] Court has found pre-emption where it is impossible for a
private party to comply with both state and federal requirements,
or where state law ‘stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of
Congress.’” 23 	In this case, Utah law, including the Department’s
rules and policies regulating employee political activity, is not

24 See Utah Code Ann. § 67-19-19(3) (2006) (“Nothing
contained in this section may be construed to: . . . permit
partisan political activity by any employee who is prevented or
restricted from engaging in the political activity by the
provisions of the federal Hatch Act.”).
25 Utah Admin. Code r. 477-9-4(6) (2004) (amended 2006).
26 Utah Code Ann. § 67-19-18(1)(b) (2006).
27 English, 496 U.S. at 79 (internal quotation marks and
citations omitted).
9 	No. 20050610
incompatible with the Hatch Act. 	Indeed, Utah has adopted its
own “little Hatch Act,” which requires state compliance with the
federal version. 24 	Additionally, the Department’s rules and
policies specifically refer to the Hatch Act, requiring employee
compliance with its provisions. 	Furthermore, in 2004, the
Department’s Executive Director had authority, under Utah
statutory law, to investigate the validity of any alleged Hatch
Act violations 25 and to terminate an employee for “malfeasance,” 26
which may include the employee’s failure to comply with the
Department’s policies regarding political activity prohibited by
the Act. 	These statutes and policies are entirely consistent
with the Hatch Act’s primary purpose and do not conflict with its
overall enforcement scheme.
C. 	There Is No Implied Field Preemption of State Law
¶26 	In discussing implied field preemption, the United
States Supreme Court has explained as follows:
[I]n the absence of explicit statutory
language, state law is pre-empted where it
regulates conduct in a field that Congress
intended the Federal Government to occupy
exclusively. 	Such an intent may be inferred
from a scheme of federal regulation . . . so
pervasive as to make reasonable the inference
that Congress left no room for the States to
supplement it, or where an Act of Congress
touches a field in which federal interest is
so dominant that the federal system will be
assumed to preclude enforcement of state laws
on the same subject. 27
¶27 	The State Board rested its decision on an implied field
preemption analysis, holding that the Hatch Act preempts state
law because it “creates a scheme of federal regulation ‘so

28 Hughes, 8 CSRB 80 (2005) (final agency decision) (quoting
Barnett Bank v. Nelson, 517 U.S. 25, 31 (1996)).
29 Id. (citing 5 U.S.C. § 1504 (2002)).
30 Id. (citing 5 U.S.C. §§ 1504-1505).
31 Id.
32 Id.
33 Id.
34 Id.
35 Id.
No. 20050610 	10
pervasive as to make reasonable the inference that Congress left
no room for States to supplant it.’” 28 	The State Board observed
that the Hatch Act “exclusively charges federal agencies with a
duty to report suspected Federal Hatch Act violations to the
OSC.” 29 	Then, the OSC “exclusively must do an investigation and
report its findings to [the Federal Board]. 	If [the] OSC
concludes that a violation has occurred, it must file charges
with the [Federal Board] . . . , [which] is statutorily required
to afford a state and/or its employee an evidentiary hearing.” 30
Furthermore, the State Board noted that the Federal Board “has
jurisdiction over complaints regarding violations of the Federal
Hatch Act and has further required that the standard of proof in
Federal Hatch Act cases be a preponderance of the evidence
standard.” 31 	This evidence standard “differs significantly from
the substantial evidence standard the Department is required to
prove before the [State Board].” 32 	The State Board finally noted
that the federal courts have jurisdiction over appeals from the
ultimate findings of the Federal Board. 33 	Thus, the State Board
concluded that, in light of these factors, the Hatch Act
impliedly preempted state law through a pervasive federal
scheme. 34 	As a result, the State Board held that “the Department
exceeded its authority in determining that Mr. Hughes violated
the Federal Hatch Act.” 35 	We disagree.
¶28 	In enacting the Hatch Act, Congress did not intend to
create a pervasive federal scheme or dominate an entire field so
exclusively as to preempt state law. 	Accordingly, state agencies
may make independent determinations regarding perceived
violations of the Act and voluntarily comply with its provisions
in order to remain eligible for federal funding.

36 330 U.S. 127 (1947).
37 Id. at 143.
38 United States v. Nat’l Treasury Employees Union, 513 U.S.
454, 471 (1995).
39 See U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter
Carriers, 413 U.S. 548, 565-66 (1973) (“A major thesis of the
Hatch Act is that to serve this great end of Government--the
impartial execution of the laws--it is essential that federal
employees, for example, not take formal positions in political
parties, . . . and not run for office on partisan political
tickets. 	Forbidding activities like these will reduce the
hazards to fair and effective government.”); id. (“[I]t is not
only important that the Government and its employees in fact
avoid practicing political justice, but it is also critical that
they appear to the public to be avoiding it, if confidence in the
system of representative Government is not to be eroded to a
disastrous extent.”); id. (“Another major concern . . . was the
conviction that the rapidly expanding Government work force
should not be employed to build a powerful, invincible, and
perhaps corrupt political machine.”).
40 Id. at 566.
11 	No. 20050610
1. 	Congress Intended that States Voluntarily Comply with the
Hatch Act
¶29 	In Oklahoma v. United States Civil Service
Commission,36 the United States Supreme Court stated that “[t]he
end sought by Congress through the Hatch Act is better public
service by requiring those who administer funds for national
needs to abstain from active political partisanship.” 37 	Thus,
“Congress effectively designed the Hatch Act to combat
demonstrated ill effects of Government employees’ partisan
political activities.” 38 	With respect to the federal government,
and the States by virtue of its spending power, Congress intended
to foreclose the potential for political corruption and assuage
the public’s fear of political bias within federal, state, and
local governments. 39 	Additionally, Congress intended that
advancement in government service “not depend on political
performance” and that employees “would be free from pressure
. . . to vote in a certain way or perform political chores in
order to curry favor with their superiors rather than to act out
their own beliefs.” 40 	Thus, Congress used its spending power
relative to the States in order to withhold federal money from
state agencies whose employees do not comply with the Hatch Act’s
provisions, such as, in this case, by running for elective office

41 See Oklahoma, 330 U.S. at 143 (stating that, with respect
to the Hatch Act, “the United States is not concerned with, and
has no power to regulate, local political activities as such of
state officials, [but] it does have the power to fix the terms
upon which its money allotments to states shall be disbursed”).
42 824 P.2d 439 (Utah Ct. App. 1991).
No. 20050610 	12
while employed in a position funded in whole or in part by
federal money.
¶30 	The Hatch Act is not an exercise of any enumerated
power to regulate state and local political activity–-indeed,
because there is no such power, such regulation would be
unconstitutional. 41 	The overall scheme of the Hatch Act simply
provides monetary incentives for states to comply with its
provisions and help achieve the Act’s stated purposes. 	As a
result, the regulatory field that the Hatch Act occupies in
relation to the States relates to the enforcement of this federal
funding scheme. 	The Federal Board is given authority to withhold
federal funding when it (1) determines that the Hatch Act’s
provisions have been violated by a federally funded state
employee, (2) concludes that removal of the employee is
warranted, (3) orders the state agency to remove the employee,
and (4) the state agency does not comply with the removal order.
Hence, the “enforcement” of the Hatch Act, as it relates to the
States, is limited to this narrow authority to withhold federal
funding for noncompliance.
¶31 	Therefore, where a state agency makes a personnel
decision based on an independent determination of a perceived
Hatch Act violation, it is not “enforcing” the Hatch Act. 	A
state agency is instead enforcing its own rules and policies,
which may utilize provisions of the Hatch Act in order to achieve
compliance with the Act and remain eligible for federal funding.
A state agency is not treading upon federal authority reserved
solely for the OSC or the Federal Board–-a state agency has no
authority to prosecute alleged violations of the Act or make
findings under the Act that will ultimately determine on what
terms a state agency may receive federal funds.
¶32 	The Utah Court of Appeals’ opinion in Utah Department
of Corrections v. Despain 42 is helpful in illustrating the way in
which two separate governmental agencies can independently
determine the same legal issue for different purposes. 	In
Despain, the defendant, a prison guard employee for the Utah
Department of Corrections, was terminated for assaulting his wife
in violation of a departmental policy that prohibited “[a]ny act
or conduct that constitutes a wrongful practice as defined by

43 Id. at 444.
44 Id.
45 Id. at 444-45.
46 Id.
13 	No. 20050610
federal, state or local law.” 43 	The Department of Corrections
determined that the defendant had violated state criminal law and
as a result had violated its departmental policy. 44 	On appeal,
the Career Service Review Board found a factual basis for the
assault allegations; however, the State Board rescinded the
defendant’s termination, concluding that because the defendant
had not been convicted or even charged with assault, he did not
violate the departmental policy. 45
¶33 	The Utah Court of Appeals reversed the State Board’s
decision, holding that “a policy violation does not require a
conviction,” and that “the facts indicate that [the defendant]
violated [a state criminal statute] even though he was released
after his arrest.” 46 	Thus, the state agency had authority,
without a preceding criminal adjudication, to independently
assess federal or state law to determine whether its departmental
policy had been violated and make a personnel decision
accordingly. 	The state agency was not enforcing the criminal
law, which remained the sole function of a federal or state
prosecutor, but was rather determining that a violation of the
criminal law had taken place relative to its own departmental
policy.
¶34 	In this case, the Career Service Review Board erred in
holding that the Department must first obtain an advisory opinion
from the OSC officially determining that Hughes had violated the
Hatch Act before terminating his employment. 	As Despain
illustrates, although within a criminal context, the Department
in this case has authority, without a prior determination from
the OSC or the Federal Board, to independently assess whether the
Hatch Act was violated by an employee with respect to the
Department’s conflict of interest policy and to make personnel
decisions accordingly. 	In doing so, the Department is not
“enforcing” the Hatch Act and treading upon the federal roles
reserved for the OSC and the Federal Board. 	Furthermore, the
Hatch Act does not explicitly or implicitly require the
Department, or any other state agency, to obtain an advisory
opinion from either the OSC or the Federal Board before
independently determining perceived violations of the Act with
respect to federally funded employees.

No. 20050610 	14
2. 	The Career Service Review Board’s Decision Is at Odds with
the Congressional Intent of the Hatch Act
¶35 	For us to hold, as did the State Board, that the
Department did not have authority to assess whether the Hatch Act
had been violated by one of its federally-funded employees, we
necessarily would have to conclude that Congress intended to
preclude state agencies from voluntarily complying with the Hatch
Act. 	As we have discussed above, this cannot be the case.
¶36 	Under the State Board’s holding, if a state agency
becomes aware that its federally funded employee is a candidate
for partisan elective office, it cannot take personnel action to
protect against the potential loss of federal funding. 	Only the
Federal Board would have authority to make final determinations
regarding alleged violations of the Hatch Act. 	Thus, in this
case, the agency’s only recourse would be to wait and see if the
Federal Board concludes that the Hatch Act was violated--and
potentially face the costs of federal litigation and the possible
withdrawal of federal funding. 	This is not what Congress had in
mind when it passed the Hatch Act. 	And although an advisory
opinion may be obtained before personnel action is taken, it is
not required by the Act itself, and therefore, the potential
availability of such an opinion does nothing to change our
analysis.
¶37 	Ultimately, if we were to adopt the interpretation
offered by the State Board, we would have to conclude that,
notwithstanding the congressional intent to encourage states to
comply with the Hatch Act and assist in its overarching goals,
Congress also intended to preclude states from voluntarily
complying with the Hatch Act, or even guarding against potential
violations. 	These two positions are fundamentally inconsistent.
Thus, we reverse the State Board’s decision and hold that the
Hatch Act does not preempt state law.
III. 	HUGHES’S DUE PROCESS CLAIM
¶38 	Finally, we address the question of whether Hughes’s
due process rights were violated in that he was treated
differently from other employees. 	In the initial evidentiary
hearing, the State Board’s hearing officer rejected Hughes’s
claim that he was treated differently from other employees who
had violated the Hatch Act, in violation of his due process
rights. 	In its decision, however, the State Board noted that the
“evidentiary record undisputedly establishes that Mr. Hughes was
treated differently from four other individuals who were either
candidates for, or actually elected to, partisan political office
while employees of the Department.” 	Unlike the hearing officer’s

47 The Department argues that Hughes did not cross-appeal
the hearing officer’s finding with regard to his due process
claim. 	As a result, the Department claims that the due process
issue was not properly before the State Board and is not before
us now. 	While it is true that Hughes did not specifically argue
his due process claim on appeal to the State Board, he noted in
his reply brief in that appeal that “if the [State Board] does
not affirm the [hearing officer’s] Decision on the grounds
asserted in this Brief, [Hughes] asserts he should be entitled to
submit supplement[al] briefing on the theories posed in [his]
Motion [For A Directed Verdict],” which included his due process
claim. 	Thus, it appears that Hughes made at least some attempt
to preserve the due process claim in his reply brief to the
Department’s appeal to the State Board.
15 	No. 20050610
decision, the State Board discussed specifically the different
ways the Department treated previous employees that were in
circumstances similar to Hughes:
Three of these individuals were never asked
to resign after declaring their candidacy for
partisan elective office. 	One of these
individuals was asked to resign only after he
won election to the Utah State Senate in
1996. 	Another individual was not asked to
resign by the Department even after winning
election to the Utah State House of
Representatives because the Department did
not believe this individual’s position was
funded by federal funds.
¶39 	Although the State Board stated that the due process
issue was not before it on appeal because Hughes had prevailed in
the evidentiary hearing, 47 the State Board noted its “deep
concern regarding the Department’s inconsistent treatment of
Mr. Hughes in this case.”
¶40 	In contrast to an appellate court, the Career Service
Review Board has some fact-finding authority in reviewing the
initial decision of its hearing officer:
The [State Board] shall first make a
determination of whether the factual findings
of the [State Board] hearing officer are
reasonable and rational according to the
substantial evidence standard. 	When the
[State Board] determines that the factual
findings of the [State Board] hearing officer
are not reasonable and rational based on the

48 Utah Admin. Code r. 137-1-22(4)(a)(2007).
49 Id. r. 137-1-11.
No. 20050610 	16
[evidentiary] record as a whole, then the
[State Board] may, in its discretion, correct
the factual findings, and also make new or
additional factual findings. 48
¶41 	Additionally, “[i]f issues . . . are . . .
satisfactorily resolved, they may not qualify to be advanced
further . . . and the [State Board] may refuse to hear or take
action.” 49 	In this case, it is unclear whether the due process
issue was “satisfactorily resolved” and whether the State Board
made a new or corrected factual finding regarding Hughes’s
inconsistent treatment, and if so, whether this might be an
alternative basis for its reinstatement order. 	Accordingly, we
remand to the State Board to determine the sufficiency of
Hughes’s due process claim.
CONCLUSION
¶42 	We reverse the Career Service Review Board’s decision
and hold that, consistent with congressional intent, the federal
Hatch Act does not preempt state law. 	As a result, state
agencies may voluntarily comply with the Hatch Act and make
independent determinations regarding perceived violations of the
Act with respect to their employees. 	We remand to the State
Board, however, for further consideration of the sufficiency of
Hughes’s due process claim.
---
¶43 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.