Case Information
*1 The Attorney General of Texas JIM MAlTOX ~u.ly 15. 1986
Attorney General Supreme Ocurl Building Opinion No. JM-521 Honorable Benjamin Iknesti P. 0. BOX 125433 Cameron County Attorney Austin. TX. 79711. 254S 974 E. Harrison Strc!c:t Re: Authority of commissioners court 512/475-2501 Brownsville, Texas 78520 to prohibit county employees from Telex 910/874.1287 running for office in a partisan Telecopier 51214750286
election 714 Jackson. Suite 700 Dear Mr Euresti: Dallas. TX. 752024503 214i742-8944
You state that: the commissioners court of Cameron County has adopted a policy prohibiting county employees from running for office 4824 Alberta Ave., Suite 180 in a partisan elect!.on. This restriction states as follows: El Paso. TX. 799052793 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 tion is an election in vhich candidates are to be 113X223-5888 nominated or elected to represent a party whose
candidates; for presidential electors received votes In .the last preceding election at which 808 Broadway, Suite 312 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,y officers other than members of the commissioners
court. You also ac.k. whether this policy, as applied to all county employees, is consistent with the Texas and United States Constitu- 200 Main Plaza, Suite 400 tions . San Antonio, TX. 78205.2797 5121225-4191
We note initia1Ll.y that elected county officers are exempted from this policy. Arti1:l.e XVI, section 65, of the Texas Constitution An Equal OpportunityI subjects elected county and precinct officers to the following Affirmative Action Employer provision:
Provided, however, if any of the officers named herein shs,ll announce 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 *2 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).
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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.ng conditions 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, Iof Texas 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 *3 . 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 th e 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 *4 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 Cmnrnission V. 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.l machine. 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.
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::cal activity in an even-handed and neutral manner.
413 U.S. at 616. See also C:lements V. 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 :Eound this 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:ts supervisor, or run for mayor or the city council, in a Dallas city election.
Eonorable Benjamin Euresti - Page 6 (JM-521)
Candidacy for elec~::ive office. 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.:!d 814 (Tex. Civ. App. - Fort Worth, 1964 writ ref'd n.r.e.). However, it may be unconstitutional as applied to particular candidacies. Dallas v. Hickman, B. 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