Untitled Texas Attorney General Opinion ( 1975 )

August 6, 1975
The Honorable Grover E. Murray Opinion No. H- 659
President
Texas Tech University Complex Re: Whether Regents of a
P. 0. Box 4349 State college may provide for
Lubbock, Texas 79409 automatic termination of employee
faculty member who becomes a
political candidate.
Dear President Murray:
You have requested our opinion concerning the validity of a policy of
the Board of Regents of Texas Tech University, which provides:
The Board of Regents does not undertake to determine
whether an employee or a member of the faculty of the
Institution shall become a candidate for, or shall accept
a public office. In the event, however, that any member
of the faculty or any employee does become a candidate
for, or does accept, public office, such person shall
automatically cease to be a member of the faculty
or an employee, and his or her connection with the
institution will be dissolved immediately.
You have asked whether this policy may be effectuated by requiring a leave
of absence without pay and termination of employment when a faculty member
or, staff employee becomes a candidate for and accepts a public office, respec-
tively.
In Broadrick v. Oklahoma, 413 U.S. 601 (1973), the Court upheld an
Oklahoma statute which prohibited classified employees from taking part in
a broad range of partisan political activities, including candidacy for public
office. Conceding that the statute impaired the First Amendment rights of
government employees, the Court held such impairment justified as an attempt
to:
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The Honorable Grover E. Murray - page 2 (H-659)
[attract] greater numbers of qualified people
by insuring their job security, free from the
vicissitudes of the elective process, and by
protecting them from ‘political extortion’.
413 U.S. at 606.
Similar restrictions contained in the Hatch Act, 5 U.S. C. 7324, were upheld
in United StatesCivil Service Commission v. National Association of Letter
Carriers, 413 U.S. 548 (1973). The restrictions on the exercise of employees’
First Amendment rights were considered necessary to achieve impartial
execution of the laws, to avoid the appearance of “political justice, I’ to avoid
the building of a “powerful, invincible and perhaps corrupt political machine, ‘I
and to insure that employment and advancement do not depend on political
performance. 413 U.S. 565, 566.
While these goals may be better satisfied by the broader restrictions
involved in Broadrick and Letter Carriers, and although the Oklahoma statute
upheld in Broadrick excluded employees of institutions of higher education, 74
Okla. Stat. § 703, we are unable to rule that the instant policy would violate
the Federal Constitution. See also Willis v. City of Ft. Worth, 380 S. W. 2d
814 (Tex. Civ. App. -- Ft. Worth 1964, writ ref’d ‘n.r. e.).
Article 16, section 40 of the Texas Constitution provides in part:
State employees . . . shall not be barred from serving
as members of the governing bodies of school districts,
cities, towns, or other local governmental districts;
provided, however, that such State employees or other
individuals shall receive no salary for serving as members
of such governing bodies. . . . (emphasis added).
While we have held that this provision was not intended to supersede
the common law prohibition concerning incompatible offices, Attorney General
Letter Advisory No. 54 (1973), we have also held the provision to constitute
an exception to the separation of powers doctrine contained in article 2, section
1 of the Texas Constitution. Attorney General Opinion H-6 (1973). In our view
this provision of article 16, section 40 of the Texas Constitution reflects the
intent of the people that persons as a general matter may simultaneously be
employed by the State and serve as members of the specified governing bodies.
It appears to us that a necessary incident of this authorization is the right to be
p. 2890
The Honorable Grover E. Murray - page 3 (H-659)
a candidate for such an office. Accordingly, we believe it does violence
to this provision of the Texas Constitution for a faculty member or staff employee
to be routinely dismissed or placed on leave without pay upon becoming a
candidate for or holder of one of these local offices, so long as the office sought
or held is not legally incompatible with his employment. We do not suggest
that an employee may not be required to continue the adequate performance of
his duties, or that termination or a forced leave of absence may not be imposed
for failure to devote the time required for the satisfactory discharge of his
responsibilities. Letter Advisory No. 62 (1973). However, under article 16,
section 40 there can be no presumption that he will neglect his duties; any
actions taken against such an employee must be on the basis of actual inade-
quate performance. -See Pickering v. Board of Education, 391 U.S. 563 (1968).
As applied to candidacy for or acceptance of an office other than member-
ship on the governing bodies of school districts, cities, towns, or other local
governmental districts, we believe the Board’s policy to be valid. We have
discovered no statutory or constitutional provision which would restrict the
power of the Board to compel a leave of absence without pay while campaigning,
or termination upon acceptance of such an office. Section 109. 21 of the Education
Code vests “the government, control, and direction of the policies of the
university” in the Board. In our opinion, this section authorizes the Board to
establish and implement the instant policy insofar as it does not conflict with
any statutory or constitutional provision. See Foley v. Benedict, 55 S. W. 2d
805 (Tex. Sup. 1932). In addition, accepta= Rand qualification for an office
which an employee may not constitutionally hold simultaneously with his
employment at the university will result in an automatic surrender of such
employment. Attorney General Letter Advisory No. 4 (1973); Attorney General
Opinion H-155 (1973); see also Centeno v. Inselmann, 519 S. W. 2d 889 (Tex.
Civ. App. -- San Antonio 1975, no writ). In regard to dual office holding by
collegiate faculty and staff, see generally Attorney General Letters Advisory
Nos. 87 (1974), 55 (1973), 30 (1973), 22 (1973).
You have also asked if a party office such as County Democratic
Chairman is a public office within the meaning of the Board’s policy.
The matter is determined by the intent of the Board of Regents at
the time the rule was promulgated, and the determination of that intent is more
properly made by the Board.
p. 2891
The Honorable Grover E. Murray - page 4 (H-659)
SUMMARY
The Board of Regents of Texas Tech University may
not compel a faculty member or staff employee to take
a leave of absence without pay or terminate her or his
employment upon candidacy,for oracceptance df:a public office
ogmembership on the governing board of a school district,
city, town, or other local governmental district. While a
faculty member or staff employee must continue the
adequate performance of her or his duties, any termination
or compelled leave of absence must be a result of actual
inadequate performance.
The Board of Regents may compel a faculty member or
staff employee to take a leave of absence without pay while
campaigning for any other public office, and may terminate
her or his employment upon acceptance of such an office.
Very truly yours,
Attorney General of Texas
APPROVED:
DAVID M. KENDALL. First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
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p. 2892