"If there's some issue with the Hatch Act, then we were unaware," Davidson said.
He said the agency considered the issue settled as to whether Tabb and Miller could run while continuing to work for the department.
The state Department of Agriculture is already scrapping a long-held internal rule in its employee handbook that says its employees can't run for state office and stay in their positions.
Although the rule is still on the books, two agriculture employees are keeping their jobs even as they run to succeed Douglass, who is retiring.
Curry said recently in an interview that the rule has been on the books since at least the late-1980s, but it's his opinion the department shouldn't have the rule because it interferes with some employees' right to run for office.
State law prevents civil service employees from running for office. But Agriculture Department workers, including Tabb and Miller, are "will-and-pleasure employees," so the department is normally exempt from the ban. But the Hatch Act does seem to clearly apply to at least some of the department's workers, particularly people in the meat inspection division whose salaries are half funded using federal dollars.
Again, it's not clear if Tabb and Miller are covered or how much they work with federally funded programs.
An Internet search found that Tabb is the contact for at least one federal grant from the U.S. Department of Agriculture and he also signed off on a state rule change that allows the state to access federal money.
Similar documents could not be found in relation to Miller.
Tabb said he does not oversee the federal grant he is listed as a contact for.
"I'm removed from that, that's not part of my daily activities of doing it, I'm not the one that signed the agreements, the commissioner is the one who signs any cooperative agreements that are done," Tabb said.
Richard Painter, a law professor at the University of Minnesota, former chief ethics lawyer for the Bush White House and an expert on the Hatch Act, said some of the Hatch Act's provisions don't make sense as public policy but might apply.
"It shouldn't in the sense of policy, but it sounds like it applies," Painter said, based on a reporter's over-the-phone account of Tabb's situation. "If he's supervising a program that is funded in part by the federal government and federal grants, then he can't run for state elected office is what the Hatch Act says."
Tabb said it's "disappointing" that questions about the Hatch Act are coming up now, just over a week before the May 8 primary.
"I certainly haven't intended to do anything illegal or incorrect; I have tried my whole life to be aboveboard with everybody," Tabb said.
He suggested on Friday he would call the U.S. Office of Special Counsel to check on his case. Miller did not make a similar suggestion.
"If there's any fault on my part, it's not checking further on what I could and couldn't do; in my mind I felt I was totally legal what I was doing by filing to run for office while I was still an employee," Tabb said.
Lerner, the head of the special counsel's office, wrote a letter to Congress last year arguing that lawmakers need to fix the Hatch Act.
One of her top priorities since taking office in 2011 has been reforming the Hatch Act. The office receives about 2,000 inquiries annually regarding whether a particular candidate in a state or local race is eligible to run.
Painter also testified to a congressional committee that lawmakers need to fix the law and make it less broad.
"They need to fix it, but nothing's happened," Painter said.