Untitled Texas Attorney General Opinion

The Attorney General of Texas
JIM MAlTOX ~u.ly15. 1986
Attorney General
Supreme Ocurl Building
Honorable Benjamin Iknesti Opinion No. JM-521
P. 0. BOX 125433
Austin. TX. 79711. 254S
Cameron County Attorney
512/475-2501 974 E. Harrison Strc!c:t Re: Authority of commissioners court
Telex 910/874.1287 Brownsville, Texas 78520 to prohibit county employees from
Telecopier 51214750286 running for office in a partisan
election
714 Jackson. Suite 700
Dallas. TX. 752024503 Dear Mr Euresti:
214i742-8944
You state that: the commissioners court of Cameron County has
4824 Alberta Ave., Suite 180
adopted a policy prohibiting county employees from running for office
El Paso. TX. 799052793 in a partisan elect!.on. This restriction states as follows:
915/5xxMS4
A count:y employee, other than an elected
official, 'may not be a candidate for elective
,lWl Texas. Suite 700
office in a partisan election. (A partisan elec-
louston, TX. 77002.3111
113X223-5888
tion is an election in vhich candidates are to be
nominated or elected to represent a party whose
candidates; for presidential electors received
808 Broadway, Suite 312 votes In .the last preceding election at which
Lubbock, TX. 79401379 presidential electors were selected.)
SW7476239
Personnel Policies Manual of Cameron County, Texas, 02.05.
4309 N. Tenth, Suite 6
McAllen, TX. 78501.1885 You ask whether this policy is binding on the staff of elected
512lS82-4547
constitutional count,yofficers other than members of the commissioners
court. You also ac.k. whether this policy, as applied to all county
200 Main Plaza, Suite 400 employees, is consistent with the Texas and United States Constitu-
San Antonio, TX. 78205.2797 tions.
5121225-4191
We note initia1Ll.y
that elected county officers are exempted from
An Equal OpportunityI
this policy. Arti1:l.eXVI, section 65, of the Texas Constitution
Affirmative Action Employer subjects elected county and precinct officers to the following
provision:
Provided, however, if any of the officers named
herein shs,llannounce their candidacy, or shall in
fact becone a candidate. in any General, Special
or Primary Election, for any office of profit or
trust unda!r the laws of this State or the United
States other than the office then held, at any
time when the unexpired term of the office then
p. 2392
Honorable Benjamin Euresti - Page 2 (m-521)
held shall exceed one (1) year, such announcement
or such candidacy shall constitute an automatic
resignation of th.e office then held, and the
vacancy thereby created shall be filled pursuant
to law in the sari...
manner as other vacancies for
such office are filled.
See Clements V. Fashing, 457 U.S. 957 (1982).
-
The commissioners court may exercise those powers implied from
express powers as well as :?owers that the constitution and statutes
have expressly conferred qmn it. Canales V. Laughlin, 214 S.W.2d
451 (Tex. 1948); Anderson V.--Wood, 152 S.W.2d 1084 (Tex. 1941). The
court has broad discretion in exercising expressly conferred powers.
Anderson V. Wood. supra.
Article V, section 18, of the Texas Constitution provides that
the commissioners court
shall exercise su:h powers and jurisdiction over
``-
all county business, as is conferred by i:his
Constitution and tgelaws of the State, or as may
be hereafter prescribed. (Emphasis added). _
Tex. Const. art. V. 918. Under this provision. and the statutes
defining its powers, the collmllssioners
court has implied authority to
employ persons necessary to carry out county business. See, e.g.,
Adams V. Seagler, 250 S.W. 413 (Tex. 1923); Gano V. Palo Pinto County,
8 S.W. 634 (Tex. 1888); &f: V. Hall, 280 S.W. 289 (Tex. Civ. App. -
Waco 1925, no writ). ---See also Pritchard & Abbott V. McKenna, 350
S.W.2d 333 (Tex. 1961). In addition, some statutes authorize the
court to hire employees to implement specific programs. See. e.g.,
V.T.C.S. arts. 39121; 6702-l. 162.002(b)(2). 3.101.
The court's authority to hire employees includes the implied
authority to establish workJ.ngconditions for them. Attorney General
Opinions H-402 (1974); V-110 (1947). See also V.T.C.S. art. 3912k
(statute governing compensation, expenses, and benefits of county,
precinct, and district employ#ees). We believe the commissioners court
may prohibit partisan political candidacies by the employees it has
authority to hire, where this condition is reasonably necessary to the
conduct of county business. The court's authority is subject to con-
stitutional and statutory l:initations. Cf. Stone V. City of Wichita
Falls. 646 F.2d 1085 (5th Cit. 1981) (homerule city charter provision
prohibiting fireman's candidacy for elective office was inconsistent
with section 22 of article 1269m. V.T.C.S., and therefore invalid
under article XI, section 5, IofTexas Constitution).
We turn to the first question -- whether the policy applies to
the staff of elected con!:titutional county officers, aside from
members of the commissioners court. We have determined that the
p. 2393
.
Ronorable Benjamin Euresti - Page 3 (JM-521)
court's implied authority to adopt this restrictlon is based on its
authority to hire employeeis and establish reasonable working con-
ditions. Necessarily, it may impose this condition only on the
employees which it has authority to hire and fire. See Newcomb v.
Brennan, 558 F.2d 825, cert. denied, 434 U.S. 96871977) (city
attorney could dismiss dep%y who announced his intention to run for
Congress).
Article 3902, V.T.C.!;..,provides that district, county, and
precinct officers shall appoint their deputies, assistants, and
clerks. The officer must apply to the court for authority to appoint
such personnel and the “wurt shall make its order authorizing the
appointment of such deputL:s. assistants and clerks . . . and deter-
mine the number to be appointed. . . ." V.T.C.S. art. 3902. The
court also establishes the compensation for each position, formerly
under article 3902, V.T.C.E,., and other specific statutes and now
under article 3912k. V.T.C.1. Attorney General Opinions H-697 (1975);
E-35 (1973); see Renfro V. Shropshire, 566 S.W.2d 688 (Tex. Civ. App.
- Eastland 1978,writ ref'di1.r.e.). However, article 3902, V.T.C.S.,
expressly prohibits the court from attempting "to influence the
appointment of any person as deputy, assistant or clerk in any
office." The commissioners court has "no legal right to screen
applicants or to veto appointments" made by county officers. See
Renfro v. Shropshire, 566 S.B.2d 688 (Tex. Civ. App. - Eastland 1978.
writ ref'd n.r.e.).
The commissioners court has no power to interfere in the hiring
decisions made by other county officers; therefore, it may not require
those county officers to te:rPainate
an employee who becomes a candidate
for partisan political office. This policy does not affect the
employment decisions of elected constitutional officers other than
members of the commissioner!;court.
We next consider whether the commissioners court may constitu-
tionally apply the policy to the employees It has authority to hire
and fire.
You do not identify an:,Texas constitutional provisions which you
wish us to address. Article XVI, section 40, of the Texas Constitu-
tion may be relevant to the court's policy. This provision states in
part:
State employees !": other individuals who receive
all or part of their compensation either directly
or indirectly frai funds of the State of Texas and
who are not State officers, shall not be barred
from servinn as m&bers of the noverninn bodies of
school districts, cities, towns, or other local
governmental districts; provided, however, that
such State employees or other individuals shall
p. 2394
Bonorable Benjamin Euresti - Page 4 (JM-521)
receive no salary for serving as members of such
governing bodies. (Emphasis added).
Tex. Const. art. XVI, 540. The quoted language has been construed to
authorize an employee compelsated from state funds to be a candidate
for election to a local aov~?rntnental
body. Attorney General Oninions
MW-149 (1980); H-659 (1975). See also S&e V. Cit; of Wichita'Falls,
477 F. Supp. 581 (N.D. Tex. 1979). aff'd. on other grounds, 646 F.2d
1085 (5th Mr. 1981). Such persons are protected from dismissal under
statutes and regulations prohibiting political candidacies by public
employees.
We turn to the validity of such policies under the United States
Constitution. The United States Supreme Court has upheld com-
prehensive restrictions on the outside political activity of federal
and state civil service eraployees. United States Civil Service
Cmission v. National Association of Letter Carriers, AFL-CIO, 413
U.S. 548 (1973); Broadrick ;. Oklahoma, 413 U.S. 601 (1973); United
Public Workers of America z. Mitchell, 330 U.S. 75 (1947). These
judicial decisions considerad extensive statutory prohibitions on
public employee's participation in political activities and upheld
them against challenges on first amendment grounds. See also Wachstnan
v. City of Dallas. 704 F.2d 160 (5th Cir. 1983), cert. denied, 464
U.S. 1012 (1983); Hickman v. City of Dallas, 475 F. Supp. 137 (N.D.
Tex. 1979), aff'd. mem., 6a F.2d 629 (5th Cir. 1980); Annot., 44
A.L.R. Fed. 306 (1979); Annot., 28 A.L.R. 3d 717 (1969).
In United Public Workls:s of America v. Mitchell, the Supreme
Court upheld the Hatch Act ban on political activities of federal
employees. The court concluded that the employee's first amendment
right to engage in politi:al speech and activity was subject to
regulation within reasonable limits to protect the competency and
integrity of the uublic service and to maintain authoritv over its
disciplihe and eificiency. United Public Workers of America v.
Mitchell, supra, at 102.
In United States Civil +vice CmnrnissionV. National Association
of Letter Carriers, AFL-CIO, 413 U.S. 548 (1973) the Supreme Court
referred to the balance to be: struck between the emrlovee's
. . interests
as a citizen in conmtentin~:on matters of public concern and the
government "as an employer, in promoting the efficiency of the public
services it performs through its employees." 413 U.S., at 564
(quoting Pickering V. BoardL)f Education, 391 U.S. 563, 568 (1968)).
The court identified the governmental interest in having its employees
administer the law in accordance with the will of Congress rather than
the will of a political part:y,in avoiding the appearance of partisan
bias in administering the law. and in preventing the use of a govern-
ment work force as a po1itic:a.lmachine. 413 U.S. at 564-65. A related
interest was to make employment and advancement in government service
not depend upon political performance. 413 U.S. at 566.
p. 2395
Honorable Benjamin Euresti - Page 5 (JM-521)
In Broadrick V. Oklahom!. 413 U.S. 601 (1973) the Supreme Court
determined that Oklahoma's restrictions on political activities of the
state's classified civil servants would not be struck down as facially
overbroad, even though the etatute was directed at political expres-
sion "which if engaged in b:y private persons would plainly be pro-
tected by the First and Fourteenth Amendments." It stated as follows:
But at the same i:J:me,5818 [of Oklahoma's Merit
System of Personnel Administration Act, Okla.
Stat. Ann., Tit. 74, 6801 et seq.] is not a
censorial statute, directed at particular groups
or viewpoints. . , . The statute, rather, seeks
to regulate polit::calactivity in an even-handed
and neutral manner.
413 U.S. at 616. See also C:lementsV. Fashing. 457 U.S. 957 (1982)
(restraints on political c&didacies established by article III.
section 19, and article XV::, section 65, of the Texas Constitution
have a rational basis and may be upheld under traditional equal
protection analysis); --
Wachsrvm v. City of Dallas, 704 F.2d 160 (5th
Cir. 1983). cert. denied, 464 U.S. 1012 (upholding Dallas city charter
provisions prohibiting certain kinds of participation by city
employees in local elections, including nonpartisan city council
elections).
The Supreme Court cams have upheld bans on a broad range of
political activities by public employees. However, the possibility
remains that such restricttons may be invalid as to a particular
public employee. In Hickmanp. City of Dallas, 475 F. Supp. 137 (N.D.
Tex. 1979). aff'd. men., 634,F.2d 629 (5th Cir. 1980), an employee of
Dallas challenned a citv charter urovision which reauired him to
forfeit his position if-he became 'a candidate for elective office
within the county. The court :Eoundthis provision invalid as violating
the first amendment rights of the employee, a nonsupervisory police
officer, who wished to run for city council in a different city.
Dallas did not show that his candidacy would impair the integrity of
city government or the lo:ralty and efficiencv of citv emulovees.
Hickman V. City of Dallas, '$.75-F.Supp. 137 (N:D. Tex. i979); aff'd.
nest.,634 F.2d 629 (5th Cir. 1980).
The court examined the city's objectives in adopting the policy.
It found that the city's interest in maintaining the loyalty,
efficiency and nonpartisanship of its employees would justify reason-
able restrictions on it the first amendment right of its employees to
become candidates for public office:
For example, conflicts might arise if an employee
were to challenge h:tssupervisor, or run for mayor
or the city council, in a Dallas city election.
p. 2396
Eonorable Benjamin Euresti - Page 6 (JM-521)
Candidacy for elec~::iveoffice. whether inside or
outside Dallas, by those in managerial or super-
visory positions might well create the possibility
and the appearance of conflicts of interest.
475 F. Supp. at 141.
Based on the authorities cited, we do not believe the courts
would hold the Cameron County policy facially invalid. See Willis v.
City of Fort Worth, 380 S.W.:!d814 (Tex. Civ. App. - Fort Worth, 1964
writ ref'd n.r.e.). However, it may be unconstitutional as applied to
Dallas v. Hickman, B.
particular candidacies. -- Whether particular
applications are invalid must be decided on a case by case basis.
SUMMARY
The cormnissionen~court of Cameron County has
implied authority to prohibit the county employees
which it hires from running for partisan office.
This policy does not apply to the staff employed
by elected constix~tional county officers. The
policy is not facially unconstitutional but may
have unconstitutioml applications under article
XVI, section 40, o:T the Texas Constitution or the
first and fourteenth amendments of the United
States Constitutior..
JIM MATTOX
Attorney General of Texas
JACK HIGETOWBR
First Assistant Attorney Genmal
MARY KELLER
Executive Assistant Attorney G.eneral
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 2397