Untitled Texas Attorney General Opinion

December 29, 1986
Honorable Oscar H. Mauzy Opinion No. .JM-597
Chairman
committee on Jurisprudence Re: Legality under article 6252-9f,
Texas State Senate V.T.C.S., of political campaign
P. 0. Box 12068 activities by community college
Austin, Texas 78711 students as optional course work
assignment
Dear Senator Mauzy:
You request an opinion about the application of article 6252-9f,
V.T.C.S., which prohibits state employees from engaging in certain
political activities, to political campaign activities undertaken by
community college students as an optional assignment in a government
course. Article 6252-9f, V.T.C.S., provides in part:
sec. 2. Except as expressly prohibited by this
Act, a state employee has the full rights of
freedom of association and political participation
guaranteed by the state and federal constitutions.
Sec. 3. (a) A state employee may not:
(1) use official authority or influence or
permit the use of a program administered by the
state to interfere with or affect the result of an
election or nomination of a candidate, or to
achieve any other political purpose; or
(7-I coerce, attempt to coerce, command,
restrict, attempt to restrict, or prevent the
payment, loan, or contribution of any thing of
value to a person or political organization for a
political purpose.
(b) For purposes of this section, a state
employee does not interfere with or affect the
results of an election or nomination if the
employee's conduct is permitted by a law relating
to his office or employment and is not otherwise
unlawful.
p. 2668
Honorable Oscar H. Mausy - Page 2 (JM-597)
Sec. 4. A state employee who violates Section
3 of this Act is subject to immediate termination
of employment.
You enclose a memo written by the attorney of a public community
college which states that section 3 of article 6252-9f. V.T.C.S..
brings into question the practice of allowing students to work in
political campaigns as optional assignments in government courses.
The memo recommends that no candidate or political party should have a
disproportionate number of students from a class working in a campaign
-- that is, an approximately equal number of students should work for
each of two candidates running for the same office. Your two questions
are directed at this recommendation:
Does the prohibition against certain political
activity by state employees in article 6252-9f.
section 3(a)(l) in turn limit the freedom of a
student in a state-supported school's government
class to choose a particular political campaign to
work for when attaining credit in an internship
program?
If not, does article 6252-9f. section 3(a)(l)
prohibit a teacher or school .administrator from
specifying a particular campaign, or from alloca-
ting students at random, more or less equally
among competing campaigns, i.e., would such an
allocation method constitur . . 'use [of]
official authority or influence . . . to interfere
with or affect the result of an election or
nomination of a candidate?'
Before we can reach questions about how such internship programs may
be conducted, we must deal with the threshold issue: Whether section
3(a) of article 6252-9f, V.T.C.S., absolutely prohibits teachers,
administrators, and other employees of state supported schools from
offering optional course work which involves student participation in
political campaigns. We turn to an examination of article 6252-9f,
V.T.C.S., and the prohibitions of section 3 of that statute.
The legislature enacted article 6252-9f, V.T.C.S., in 1983 as
Senate Bill No. 762. Acts 1983, 68th Leg., ch. 579, at 3763. The
bill was recommended by the Public Servant Standards of Conduct
Advisory Committee established by the Sixty-seventh Legislature. Acts
1981, 67th Leg., ch. 151, at 370. The Advisory Committee stated in
its final report that Senate Bill No. 762 removed the existing
restrictions on political activity of state employees, except for
employees of the Department of Public Safety, and outlines the extent
to which all employees may participate in political activity. Final
Report of the Public Servant Standards of Conduct Advisory Committee
p. 2669
Eonorable Oscar H. Mausy - Page 3 / (JM-597)
at IA (August 1983). The report expressed the opinion that the United
States Constitution protected political activity of public employees
to the extent that the activity occurs outside of office hours and
does not involve official duties or entail use of state property.
Background Report on Proposed Changes to Law Concerning Political
Activity of State Employees, completed in Final Report of the Public
Servant Standards of Conduct Advisory Committee at IB (August 1983);
see generally, Buckley v. Valeo, 424 U.S. 1 (1976); Broadrick v.
Oklahoma, 413 U.S. 601 (1973); Attorney General Opinion MW-243 (1980)
(Broadrick raised but did not answer questions as to whether First
Amendment protected employee in wearing campaign button off duty).
The Advisory Committee noted that
[t]raditionally, the need to protect employees
from coercion by supervisors has been mentioned as
justification for prohibition of political
activity. Also the state may impose some re-
straint on the political activities of its public
employees in order to promote efficiency and
integrity in public service. Nevertheless, sub-
coxsaitteeand full committee members felt that the
underlying basis for the statutory restrictions is
removed when the public employee is not on duty or
performing his official duties or utilizing state
property.
Final Report of the Public Servant Standards of Conduct Advisory
Committee at IA; but see United Public Workers of America v. Mitchell,
330 U.S. 75 (1947).
Thus, a major purpose of Senate Bill No. 762 was to remove
restrictions on political activity of public employees. In addition,
since state employees had no clearly outlined guide to participation
in political activity, Senate Bill No. 762 also sought to outline the
extent to which they might participate in political activity. Bill
Analysis to.S.B. No. 762, prepared for Senate Committee on State
Affairs, filed in Bill File to H.B. No. 762, Legislative Reference
Library. Section 3, in language that tracks provisions of the federal
Hatch Act applicable to certain state employees, outlines the limits
on a state employee's political activity. See 5 U.S.C. §§1501, 1502
(Hatch Act prohibitions applicable to state employees principally
employed in connection with a federally financed activity); Hum. Res.
Code 121.009 (DHR employees subject to Hatch Act); Attorney General
Opinion MU-149 (1980) (DPS employees subject to Hatch Act).
The political activity forbidden by section 3 of article 6252-9f.
V.T.C.S., was not necessarily permitted conduct before that statute
became effective. Article III, section 51, of the Texas Constitution
prohibits the legislature from using public funds for a non-
governmental purpose. Road District No. 4, Shelby County v. Allred,
p. 2670
Honorable Oscar H. Mauzy - Page 4 (JM-597)
68 S.W.2d 164 (Tex. 1934); see State v. City of Dallas, 319 S.W.2d 767
(Tex. Civ. App. - Austin 1959), aff'd, 331 S.W.2d 737 (Tex. 1960); see
also Tex. Const. art. III, §52 (similar prohibition applicable=
political subdivisions~);Tex. Const. art. XVI, 16 (no appropriation
for private purposes). Numerous Attorney General Opinions disapprove
attempts to divert public funds and other public resources to private
purposes. See, e.g., Attorney General Opinions JM-30 (1983) (state
funds may not be used to provide private individuals with telecommuni-
cations devices for the deaf); MW-532 (1982) (grant of state funds to
private landowners to reforest idle lands); MU-89 (1979) (school
district policy permitting teachers to work for professional associa-
tions while receiving salaries from the school district is unconstitu-
tional); MW-36 (1979) (county may not spend public funds to purchase
and mail Christmas cards); MM-22 (1979) (state funds may not be
granted to private individuals to pay their utility costs); M-661
(1970) (county may not donate funds to a private charity). Other
provisions of law already prevent a public employee from using his
official position to benefit himself in his private capacity. See
Penal Code ch. 39 (abuse of office); V.T.C.S. art. 6252-9b, §§6,
(provisions guarding against state officer or employee being
influenced by private interest). As Justice Douglas said in dissenting
to a Supreme Court opinion that upheld the Hatch Act against
challenges that it violated employees' First Amendment rights and that
it was void for vagueness,
no one could object if employees were barred from
using office time to engage in outside activities
whether political or otherwise.
United States Civil Service Commission v. National Association of
Letter Carriers, 413 U.S. 548, 597 (1973).
Thus, sections 3(a)(l) and 3(a)(2) of article 6252-9f do not
prohibit conduct that was formerly permissible under Texas law. These
provisions do expressly inform state employees that they may not
divert state resources to private political interests or direct their
official authority to serving such interests; violation of these
provisions subjects them to termination. If the college course work
you describe involves violations of section 3, article 6252-9f,
V.T.C.S., it probably was also impermissible under prior law.
We thus turn to a central question: whether the community
college personnel who are responsible for offering the optional
course work assignments you describe have violated section 3(a)(l) of
article 6252-9f. V.T.C.S. This section provides that a state employee
may not
use official authority or influence or permit the
use of a program administered by the state to
interfere with or affect the result of an election
p. 2671
Honorable Oscar H. Mausy - Page 5 ,(3-l-597)
or nomination of a candidate, or to achieve any
other political purpose. . . .
V.T.C.S. art. 6252-9f, 83(a)(l). An employee of a public junior
college is a "state employee" within section 3(a)(l). See V.T.C.S.
art. 6252-9f. §(l)(B), (2); Educ. Code §61.003(2). (7). -
Community college courses are reviewed by the Coordinating Board,
Texas College and University System, before they are offered.
Community colleges offer both university-parallel programs and
occupational programs. Educ. Code 1130.005. A community college
course of study in freshman and sophmore college work must be
submitted to the Coordinating Board, Texas College and University
System, for approval before it is offered. Educ. Code P130.004; see
Educ. Code 9130.005 (public junior colleges renamed "commune
colleges"). The board of trustees of a community college must each
year submit to the Coordinating Board a comprehensive list of all
courses, with a description of content and scope, to be offered the
following year. Educ. Code 161.052. The Coordinating Board may order
a deletion or consolidation of any courses as submitted. Id.; Educ.
Code 5161.053-61.054; see Educ. Code 5561.060-61.063 (Coordinating
Board authority over Gunity colleges). See also Educ. Code
1851.301-51.302; Attorney General Opinion M-143 (1967) (courses must
- be offered in American history and government). The governing body of
the community college may offer government courses subject to the
statutory requirements and Coordinating Board review already
described. See Educ. Code 59130.002, 130.084; see also Educ. Code
023.26. The-governing body of the community college also has
authority to hire and supervise employees to teach the course
offerings.
In our opinion, article 6252-9f does not prohibit community
college employees from authorizing and offering optional assignments
which involve student work for a political campaign. We cannot
provide comprehensive guidelines for offering internship assignments;
that is within the discretion of the community college trustees and
the Coordinating Board. We can, however, point out some essential
restrictions.
The assignments must be designed to carry out the educational
purposes of the course and of the community college. The course
presumably will go through the approvals required by the Education
Code, and the instructor, in exercising his authority delegated by the
college trustees, will design and direct the assignments to carry out
the educational purposes of the institution. The instructor and other
employees responsible for this program must not allow their political
preferences to influence the operation of the program; decisions about
such optional assignments must be based on the educational benefit to
the student, and not consider the benefit or detriment to the
P
political entity. If the assignments are conducted to fulfill the
p. 2672
,
Honorable Oscar H. Mausy - Page 6 (JM-597)
educational purposes of the college, and if any.effect they may have
on the political campaign is entirely incidental and minimal in
degree, the instructor and other responsible college employees will
not, in our opinion, violate section 3(a)(l) of article 6252-9f,
V.T.C.S.
You ask whether a government student may be assigned to
participate in a particular campaign against his will. You have
characterized the internship assignments as optional. Presumably, no
student is required to participate in an internship at all, and
students may complete that segment of the course work by preparing
some other type of assignment. Moreover, section 3(a)(2) prohibits a
state employee from coercing the "contribution of any thing of
value . . . to a political organisation for a political purpose."
This prevents a teacher from "coercing" a student to contribute his
services to a political organization for a political purpose.
SUMMARY
Section 3(a)(l) of article 6252-9f, V.T.C.S.,
does not absolutely prohibit a community college
from offering as course work in a government class
an optional assignment which involves student
1
participation in a political campaign. Section
3(a)(2) of the statute prevents a teacher from
"coercing" a student to contribute his services to
a political organisation for a political purpose.
JIM MATTOX
Attorney General of Texas
JACK HIGHTONER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 2673