Judges: Winston Bryant, Attorney General
Filed Date: 2/3/1994
Status: Precedential
Modified Date: 7/5/2016
The Honorable Bynum Gibson State Representative 312 South Main Street Dermott, AR 71638-2439
Dear Representative Gibson:
This is in response to your request for an opinion regarding the enforceability or constitutionality of the following county personnel policy:
SEEKING PUBLIC OFFICE
Any non-elected employee of Ashley County receiving compensation by the use of Ashley County Public Funds must comply with the following guide lines:
1. When seeking a publicly elected office of Ashley County Government, employee must be removed from active employment by Ashley County by, i.e.: resignation, termination, or approved leave of absence without pay; for the time frame beginning with a public announcement such as a notice by a news media or the registration for candidacy with the County Clerk, which ever comes first, until it is determined by the Ashley County Election Commission that said employee has been eliminated from election, or said candidate (employee) has no further opposition to election to the office or position that was filed for.
My research has not revealed an Arkansas case addressing this precise issue. A conclusive answer may therefore require resort to the courts. I believe that an Arkansas court might be persuaded by cases from other jurisdictions that have upheld this type of regulation. It is therefore my opinion, particularly in light of the presumption of constitutionality accorded all legislative enactments, that the policy would probably withstand judicial scrutiny.
It should be initially recognized that the county, acting through its quorum court, may exercise "local legislative authority not expressly prohibited by the Arkansas Constitution or by law for the affairs of the county." A.C.A.
It is clear from the foregoing that the county may develop general employee policies, and I believe this could extend, as a general matter, to a policy restricting in some manner the political activities of public employees. A constitutional issue remains, however, concerning the scope of such a policy. State statutes and local governmental regulations in other jurisdictions which restrict political activities of public employees have been challenged as constituting an unconstitutional infringement on the employees' freedom of speech or association guaranteed under the
My research indicates that there is support for the proposition that statutes or ordinances restricting political activities by public employees are valid where the enactments serve the state or local governmental interest in maintaining discipline and providing for the effectiveness of employees. Id. It has been stated that "[n]either the right to associate nor the right to participate in political activities is absolute in any event." United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers,
While the governmental interest in insuring efficient and impartial administration of public service has, therefore, been upheld as a valid basis for restricting political activities of public employees, the breadth of the legislative abridgment has in some cases formed the basis for a successful constitutional challenge. Id. at 740; see, e.g., Allen v. Board of Education,
It is therefore my opinion that a persuasive argument can be made, based upon case law from other jurisdictions, in favor of the enforceability of this particular policy. As noted above, however, a conclusive determination will require a judicial ruling.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.
Sincerely, WINSTON BRYANT Attorney General
WB:cyh
Huerta v. Flood , 103 Ariz. 608 ( 1968 )
W.J. Hobbs v. Mayor Ronnie Thompson , 448 F.2d 456 ( 1971 )
Johnson v. State, Civil Service Department , 280 Minn. 61 ( 1968 )
walter-r-otten-v-john-schicker-suzanne-hart-james-crowe-james-conway-as , 655 F.2d 142 ( 1981 )
Ferguson Police Officers Ass'n v. City of Ferguson , 670 S.W.2d 921 ( 1984 )
United States Civil Service Commission v. National Ass'n of ... , 93 S. Ct. 2880 ( 1973 )
United Public Workers of America v. Mitchell , 330 U.S. 75 ( 1947 )
Pickering v. Board of Ed. of Township High School Dist. 205,... , 88 S. Ct. 1731 ( 1968 )
Wisconsin State Employees Ass'n, Council 24 v. Wisconsin ... , 298 F. Supp. 339 ( 1969 )