This dispute involves the extent to which state civil service employees may exercise their fundamental rights to speech and association during nonworking hours by engaging in political activities. Specifically at issue are Michigan Civil Service Commission Rule 7, which imposes a blanket ban on political activity by classified employees, and the so-called "political freedom act”,
*423 The case went to trial on stipulated facts. Plaintiff American Federation of State, County and Municipal Employees Council 11 represents approximately 6500 employees in the classified civil service. Plaintiff Robert Cusack was employed as an "Attendant Nurse 04” until he was discharged for the sole reason that he had filed a petition to become a candidate for sheriff in Ionia County. The other individual plaintiffs are current employees in the classified civil service. In view of the passage of MCL 15.401 et seq.; MSA 4.1702(1) et seq., plaintiffs brought suit to challenge defendant commission’s continued enforcement of Rule 7 which prohibits any political activities by classified employees.
The trial court issued a declaratory judgment which concluded that while the commission’s power to regulate conditions of employment was broad, the commission did not possess authority, either express or implied, to regulate an employee’s private off-duty activities until and unless such activities affect, interfere with or conflict with job performance. Further the trial court concluded that
Both sides present compelling constitutional and policy arguments. In its most basic terms, the dispute involves the clash between commission rules, promulgated under Const 1963, art 11, § 5, which are designed to keep politics out of the state civil service and the fundamental freedoms of speech and association guaranteed all citizens by both the Michigan and Federal Constitutions.
Defendant commission contends the Legislature is without power to legislate in any area within the sphere of authority of the commission. According to the commission, Const 1963, art 11, § 5 grants the commission exclusive jurisdiction to prohibit any political activities by civil servants since the commission is empowered to regulate all conditions of employment.
The constitutional amendment which established the Michigan Civil Service Commission has been in effect since January 1, 1941. It is undisputed that the civil service system was established to put an end to the evils of the "spoils system” which had politicized all levels of state government. The goal of the amendment was to improve the classified civil service by the adoption of a merit system.
Reed v Civil Service Comm,
In pertinent part, Const 1963, art 11, § 5 reads:
"The commission shall classify all positions in the classified service according to their respective duties and responsibilities, fix rates of compensation for all classes of positions, approve or disapprove disbursements for all personal services, determine by competitive examination and performance exclusively on the basis of merit, efficiency and fitness the qualifications of all candidates for positions in the classified service, *425 make rules and regulations covering all personnel transactions, and regulate all conditions of employment in the classified service.” (Emphasis supplied.)
In essence, the commission takes the position that in view of the history surrounding the amendment, the grant of power to "regulate all conditions of employment” allows the commission to impose a blanket ban on political activity because such activity is inherently at odds with the goals of the amendment.
Pursuant to the amendment the commission has promulgated the following rules:
"Rule 7.1 Prohibited Activities. — No employee in the state civil service shall engage in any political activity while on duty, nor shall he be or become: An officer in a political party or organization; a member of any political party committee formed or authorized under the general election laws of the state; a delegate to any state, district or county convention held by any political party in this state; a member of any national political party committee; a delegate from this state to any national political party convention.
"Rule 7.3 Candidates for Public Office. — No employee in the state civil service shall become a candidate for nomination to any partisan elective office without first obtaining a leave of absence. The leave of absence shall remain in force and effect until the candidacy becomes official by the filing of petitions or by the action of a caucus or a convention, or by a filing fee. When a state civil service employee becomes an official candidate for elective office set forth as above, he shall at once resign from his civil service position.”
According to the commission, the purpose of the amendment was to eliminate politics from the classified service and enforcement of these rules is necessary to carry out that purpose. Such sweeping prohibitions are necessary, the commission *426 argues, to prevent political considerations from, however subtly, infecting the integrity and efficiency of the civil service.
In 1976 the "political freedom act”, MCL 15.401 et seq.; MSA 4.1702(1) et seq., was enacted to permit civil service employees (and employees of political subdivisions of the state) to engage in certain political activities. Several of the more important statutory sections provide:
MCL 15.402; MSA 4.1702(2):
"An employee of the state classified civil service may:
"(a) Become a member of a political party committee formed or authorized under the election laws of this state.
"(b) Be a delegate to a state convention, or a district or county convention held by a political party in this state.
"(c) Become a candidate for nomination and election to any district, county, city, village, township, school district, or other local elective office without first obtaining a leave of absence from his employment. If the person becomes a candidate for elective office in the executive or legislative branches of the state or for the supreme court or court of appeals, the person shall request and shall be granted a leave of absence without pay when he complies with the candidacy filing requirements, or 60 days before any election relating to that position, whichever date is closer to the election.
"(d) Engage in other political activities on behalf of a candidate or issue in connection with partisan or nonpartisan elections.”
MCL 15.404; MSA 4.1702(4):
"The activities permitted by sections 2 and 3 shall not be actively engaged in by a public employee during those hours when that person is being compensated for the performance of that person’s duties as a public employee.”
*427 MCL 15.405; MSA 4.1702(5):
"A public employer, public employee or an elected or appointed official may not personally, or through an agent, coerce, attempt to coerce, or command another public employee to pay, lend, or contribute anything of value to a party, committee, organization, agency, or person for the benefit of a person seeking or holding elected office, or for the purpose of furthering or defeating a proposed law, ballot question, or other measure that may be submitted to a vote of the electors.”
MCL 15.406; MSA 4.1702(6):
"(1) An employee of a political subdivision of this state whose rights under this act are violated or who is subjected to any of the actions prohibited by section 5 may make a complaint to that effect with the department of labor. The department shall hold hearings to determine whether a violation has occurred. If a violation has occurred, the department shall so state on the record and may order the issuance of back pay and reinstatement as an employee for a person whose rights were violated.
"(2) Upon motion by the department to the circuit court, the court may issue an injunction to enforce the order of the department.
"(3) The department of civil service shall promulgate rules for hearing alleged violations of this act by a state employee.”
In short, the act permits civil servants to engage in certain types of political activities in their off-duty time. Further the act prevents any unwilling employee from being coerced into engaging in political activity.
Believing its rules are constitutionally mandated and believing the Legislature is without power to legislate in the area of civil service employment, the commission has ignored the statute and continues to enforce Rules 7.1 and 7.3.
*428 No one challenges the broad authority of the commission to regulate on-duty activities of classified employees and to regulate those off-duty activities which actually conflict with job performance. While we recognize that off-duty political activity may affect job performance in some cases, we do not believe that the commission has the authority to impose a blanket ban on all political activities by all civil service employees. Insofar as the commission rules ban all off-duty political activity, they are impermissibly overbroad and invalid.
It is clear that the state cannot require an individual to relinquish rights guaranteed him or her by the First Amendment as a condition of public employment.
Abood v Detroit Board of Education,
"There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of 'orderly group activity’ protected by the First and Fourteenth Amendments. NAACP v Button,371 U.S. 415 , 430 [83 S Ct 328 ;9 L Ed 2d 405 (1963)]; Bates v Little Rock,361 U.S. 516 , 522-523 [80 S Ct 412 ;4 L Ed 2d 480 (1960)]; NAACP v Alabama,357 U.S. 449 , 460-461 [78 S Ct 1163 ;2 L Ed 2d 1488 (1958)]. The right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom. Williams v Rhodes,393 U.S. 23 , 30 [89 S Ct 5 ;21 L Ed 2d 24 (1968)]. Cf. United States v Robel,389 U.S. 258 [88 S Ct 419 ;19 L Ed 2d 508 (1967)].”
When political activities of a public employee are unrelated to his or her job responsibilities, the employee must be treated as a member of the
*429
"general public” for the purpose of adjudicating First Amendment rights.
Phillips v City of
Flint,
There is no question that the commission is granted broad plenary powers to regulate internal civil service procedures and that such procedures are not subject to legislative controls.
Viculin v Dep’t of Civil Service,
When First Amendment rights are being restricted, the state must justify the restriction by demonstrating a "compelling state interest”.
Advisory Opinion on Constitutionality of
The commission cannot demonstrate a compelling interest to uphold Rules 7.1 and 7.3 which impose a sweeping prohibition on all political ac *430 tivities of civil servants. Public employment cannot be conditioned on relinquishing one’s right to participate in the political process. Abood, supra, Elrod, supra, Kusper, supra. As the trial judge noted, "It is the purpose of the Commission to keep politics out of the classified state service, not to keep classified employees out of politics.” Absent a showing by the commission that an employee’s off-duty political activities actually affect his or her job performance, the commission is powerless to abridge an employee’s fundamental constitutional rights.
Plaintiff Cusack’s situation highlights the need for a case-by-case approach rather than a blanket ban on all political activity. At the time of Mr. Cusack’s discharge, he was classified as an "Attendant Nurse 04”. It cannot be seriously contended that an attendant nurse can carry out his or her duties in a Republican or Democratic way. If, for example, Mr. Cusack’s campaign activities cause him to miss work or neglect his job duties, then the commission would have grounds to discharge him. But so long as plaintiff Cusack is carrying out his assigned duties during working hours, the commission has no interest in prohibiting his off-duty political activity.
We are certainly aware that there are situations, particularly involving high-ranking administrators, where partisan activities could conflict with job performance. However the potential for such conflicts does not justify a blanket ban on the large number of classified employees who do not exercise policy-making or discretionary authority. The commission is clearly empowered to promulgate rules which deal with classified employees whose political activities actually affect job-performance.
*431
Defendant’s reliance on
MacLellan v Dep’t of
Corrections,
Defendant’s reliance on
Broadrick v Oklahoma,
*432 We conclude that insofar as Rules 7.1 and 7.3 impose a blanket ban on all off-duty political activity, they are impermissibly overbroad. While the commission is granted broad powers within its sphere of authority, it does not possess the power to abridge fundamental rights without a showing that an individual’s off-duty political activities have an actual effect on job performance.
Because the commission is without authority to impose a blanket ban on off-duty political activity, the Legislature has not encroached on the jurisdiction of the commission by the enactment of
We reverse that portion of the lower court ruling which dismissed plaintiff Cusack’s complaint. While the trial judge may be correct in his observation that political campaigns require a personal, emotional and physical commitment, the judge *433 was incorrect in concluding that campaign activities per se conflict with job performance. Whether there is an effect on job performance must be evaluated on a case-by-case basis. Because plaintiff Cusack was terminated under an overbroad commission rule and without any showing that his activities affected his job performance, 1 we reverse and remand.
Affirmed in part; reversed in part; remanded for further proceedings._
Notes
Although plaintiff Cusack was discharged before the effective date of