Untitled Texas Attorney General Opinion ( 1988 )

September 27, 1988
Mr. Marlin W. Johnston Opinion No. JM-957
Commissioner
Texas Department of Human Re: Political activity by
Services employees of the Texas
P. 0. Box 2960 Department of Human Ser-
Austin, Texas 78769 vices (RQ-1471)
Dear Mr. Johnston:
You ask two questions regarding political activity by
employees of the Department of Human Services. First, YOU
ask whether an employee may become a candidate for the
political party office of county or precinct chairman
without violating 5 U.S.C. section 1502(a)(3). Further, YOU
ask whether the offices of county and precinct chairman may
be considered Wonpartisan 'Ias that term is used in 5 U.S.C.
section 1503.
Political activity of officers and employees of the
Department of Human Services (DHS) is governed by section
21.009 of the Human Resources Code which provides in
pertinent part:
(b) An officer or employee of the depart-
ment is subject to all applicable federal
restrictions on political activities.
However, an officer or employee retains the
right to vote as he or she pleases and may
express his or her opinion as a citizen on
all political subjects.
(c) An officer or employee of the depart-
ment who violates a provision of this section
is subject to discharge or suspension or
other disciplinary measures authorized by the
department's rules.
Hum. Res. Code 5 21.009.
The "federal restrictions on political activities"
referred to in subdivision (b) above are found in the Hatch
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Mr. Marlin W. Johnston - Page 2 (JM-957)
Act. 5 U.S.C. 5 1501 et seq. Section 1502(a) (3) prohibits a
state or local officer or employee from seeking elective
office. Section 1501 (4) provides:
(4) 'State or local officer or employee'
means anindividual employed by a State or
local agency whose principal employment is in
connection with an activity which is financed
in whole or in part by loans or grants made
by the United States or a Federal agency, but
does not include [certain exceptions not
relevant here].
5 U.S.C. s 1501 (4).
The determination of whether a particular individual's
"principal employment" brings him within that definition is
a fact question. We do not resolve questions of fact in the
opinion process. Attorney General Opinion JM-413 (1986).
Therefore, for the purpose of this opinion, we will assume
that the employees about whom you inquire meet that
definition and are included within the restrictions of the
remainder of the act.
Before 1975, the terms of the Hatch Act prohibited the
targeted individuals from holding political party offices.
gee., Oklahoma . United St&s&civil Service commis-
&2ll, 330 U.S. 127v (1947) in 1974 Congress
amended the statute so that *itHzz?Aot have that effect.
The amendment deleted language that prohibited state and
local officers and employees from Vak[ing] an active part .
in political management or in political campaigns." That
language had been held to prohibit state employees from
holding political party offices. &g Oklahoma suwra;
E aelhardt v. United Stat Civjl rvice Commissjon, 197
F:Supp. 806, aff'd, 304 F"zd .;82 (sz6l)i see also United
Public Workers of America V. chQ, 330 U.S. 75 (1947).
The reason for the amendment is revealed in 1974 United
States Code Congressional and Administrative News at page
5669, which states that the bill amends section 1502 of
Title 5, United States Code "to provide that State and local
officers and employees may take an active part in political
management and in political campaigns, except #at they may
not be candidates for elective office."
This statement of intent is less than clear when
applied in Texas, because in this state county and precinct
party officers are elected. Elec. Code 8 171.022. However,
p. 4852
Mr. Marlin W. Johnston - Page 3 (JM-957)
rules adopted by the Office of Personnel Management inter-
pret the 1974 amendment as allowing state employees to hold
party offices, including elective party offices. Those rules
are found at Part 151, Title 5, Code of Federal Regulations.
Section 151.101(i) defines "elective office" to mean
"any office which is voted upon at an election as defined at
section 151.101(f), above, but does not j.Dglude wolitical
-office." Section 151.111 sets out permissible
activities for affected personnel as including participation
"in all political activity not specifically restricted by
law and this part, including candidacy for office
* . in a
nonpartisan election and midacv for wolltlcal n r v
office." Finally, section 151.122(f) excepts from atke
general prohibition, candidacy "for a position of officer
of a political party, delegate to a political party
convention, member of a National, State or local committee
0f.a political party, or any similar position." 5 C.F.R.
5 151.122(f).
We conclude that an officer or employee of the Depart-
ment of Human Services may run for the office of precinct
chairman of a political party without violating the Hatch
Act.
You also ask whether the offices of county and precinct
chairman may be considered %onpartisan" offices as defined
by section 1503 of the Hatch Act. We assume that your
question is prompted by the exclusion of nonpartisan offices
from the Hatch Act8s restrictions. Section 1503 provides:
Section 1502(a)(3) of this title does
not prohibit any State or local officer or
employee from being a candidate in any
election if none of the candidates is to be
nominated or elected at such election as
representing a party any of whose candidates
for Presidential elector received votes in
the last preceding election at which
Presidential electors were selected.
5 U.S.C. g 1503.
As stated earlier, Texas candidates for the political
party offices of county and precinct chairman are elected at
the primary elections. The other candidates nominated in
those elections will represent their respective political
parties in the succeeding general election. By its very
terms, therefore, the exception in section 1503 cannot apply
p. 4853
Mr. Marlin W. Johnston - Page 4 (JM-957)
to the offices about which you inquire. Given our answer
to your first question, however, this fact is of no con-
sequence.
SUMMARY
An officer or employee of the Department
of Human Services may run for the office of
county precinct chairman without violating
the Hatch Act.
Jzyh
JIM MATTOX
Attorney General of Texas
MARYNELLHR
First Assistant Attorney General
LCUMCCRHARY
Executive Assistant Attorney General
JUDGE ZOLLIE STHANLHY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General
p. 4854