[1994/oagheade.htm]

OAG 94-3

January 12, 1994

Daniel F. Egbers

Managing Attorney

Department of Personnel

Capitol Annex

Frankfort, Kentucky 40601

Dear Mr. Egbers:

You have asked "whether a Merit System employee under KRS Chapter 18A may lawfully participate on a steering committee or serve as an officer on a committee the function of which is to advance 'United We Stand America.'" You point out that KRS 18A.140 prohibits merit employees to engage in partisan political activity, and you are concerned that United We Stand America, while professing to be a nonpartisan organization, retains a close association with former independent Presidential candidate H. Ross Perot, and therefore "appears to be functionally indistinguishable from a political party."

It is our opinion that KRS 18A.140 does not prohibit merit employees from engaging in nonpartisan political activity, including activity conducted on behalf of United We Stand America.

The applicable statute

KRS 18A.140(4) says:

No employee in the classified service or member of the board or its executive director shall be a member of any national, state, or local committee of a political party, or an officer or member of a committee of a partisan political club, or a candidate for nomination or election to any paid public office, or shall take part in the management or affairs of any political party or in any political campaign, except to exercise his right as a citizen privately to express his opinion and to cast his vote. Officers or employees of the classified service may be candidates for and occupy a town or school district office if the office is one for which no compensation, other than a per diem payment, is provided and the election is on nonpartisan basis.

This statute contains four basic prohibitions. A merit employee may not:

The first and last of the prohibitions are implicated by your question. If United We Stand America is a political party, then merit employees may not hold management positions within the organization. If the activities of United We Stand America constitute a political campaign, then merit employees may not take any part in the management or affairs of that campaign.

KRS 18A.140 (formerly KRS 18.310) was enacted in 1960 as part of the act that created the merit system for state employment. Shortly after the adoption of the act, we said that it "was designed to prohibit pernicious political activity on the part of classified employees and prohibit them from holding party offices and participating in political campaigns." OAG 60-1183. While we cited no authority for that statement, it is obvious that we were influenced by the stated purpose of the federal Hatch Act, which uses the phrase "pernicious political activity." In later years, our opinions dropped the reference to "pernicious" political activity in favor of a broader view that excluded merit employees from participating in virtually every election campaign. Typical of these opinions is OAG 76-637, in which we said that a merit employee may not participate in judicial campaigns. We based that conclusion in part on the observation that the term "political campaign" as used in the statute must carry a broader meaning than mere "political party" activities, because political party activity is separately provided for in the statute. Similarly, in OAG 88-81 we said that a merit employee may not campaign for a school board candidate. We said that this narrow construction was not illogical, even though a merit employee could, by virtue of an exception provided in the statute, be a candidate in the school board race.

While our opinions have made occasional reference to the Hatch Act, the federal cognate of KRS 18A.140(4), we have not examined the judicial history of that act as a source of reasoning and precedent for interpreting our own statute. The Hatch Act (5 U.S.C. � 7324) is particularly relevant to this study for two reasons. First, there are no Kentucky cases construing KRS 18A.140(4) in the context applicable here. Second, in the terms of the Hatch Act we find language quite similar to that in our own statute. In particular, the term "political campaign," which is directly implicated in the question we now examine, appears in a comparable context in both statutes:

 

KRS 18A.140(4): 5 USC � 7324:
No employee in the classified service . . . shall . . . An employee in an Executive agency may not
take part in the management or affairs of any political party or in any political campaign . . . take an active part in political management or in political campaigns.
except to exercise his right as a citizen privately to express his opinion and to cast his vote. An employee . . . retains the right to vote as he chooses and to express his opinion on political subjects and candidates.

Because we believe that the Hatch Act's interpretation is persuasive in construing KRS 18A.140(4), we now examine the federal court decisions construing the Act.

The Hatch Act

The Hatch Act was enacted in 1939 as "[a] bill to prevent pernicious political activities." 84 Cong.Rec. S2935. Provoked by reports of improprieties concerning the WPA during the 1938 election, Congress extended to all federal employees the terms of federal Civil Service Rule 1, which forbade active participation in political management or political campaigns. Because of first amendment concerns, Congress departed from the language of the civil service rule by removing the word "privately" from the rule's description of permitted expression of opinion.

In the first major case under the Hatch Act, the U.S. Supreme Court upheld the constitutionality of the act, stating,

Modern American politics involves organized political parties. Many classifications of Government employees have been accustomed to work in politics-national, state, and local-as a matter of principle or to assert their tenure. Congress may reasonably desire to limit party activity of federal employees so as to avoid a tendency toward a one-party system. It may have considered that parties would be more truly devoted to the public welfare if public servants were not over active politically.

United Public Workers v. Mitchell, 330 U.S. 75, 100, 91 L.Ed. 754, 67 S.Ct. 556 (1947).

In 1973 the Court explained the objective of the Hatch Act in this way:

A major thesis of the Hatch Act is that to serve this great end of Government-the impartial execution of the laws-it is essential that federal employees not, for example, take formal positions in political parties, not undertake to play substantial roles in partisan political campaigns and not run for office on partisan political tickets.

United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 565, 37 L.Ed.2d 796, 93 S.Ct. 2880 (1973).

In these quotations it is apparent that the overriding concern of the Court in construing the Hatch Act was the limitation on federal employee involvement in partisan political activity. This is particularly noteworthy inasmuch as the word "partisan" does not even appear in the Hatch Act.

Subsequent federal cases have continued to construe the term "political campaign" to refer to organized activity conducted by a political party. In Blaylock v. United States Merit Systems Protection Board, 851 F. 2d 1348, 1352 (1988), the U.S. Court of Appeals for the Eleventh Circuit, in discussing the 1947 Mitchell decision, said that the Court was concerned with

the concomitant dangers that would be created if advancement in the public service were tied to partisan political activity. The Hatch Act guarded against the possibility that government employees would be used by superior officers to build a political machine. . . .

The Court emphasized that Congress had limited the Hatch Act's prohibitions to the particular evil that the Act was designed to prevent: the influence of partisan politics on governmental activity. . . . Expressions, public or private, on public affairs, personalities and matters of interest, not an objective of party action, are unrestricted by law so long as the Government employee does not direct his activities toward party success.

(Emphasis in original.) Regarding the two evils that the Hatch Act was designed to address, the court said:

The Hatch Act stops party bosses from using government employees to establish their party irremovably in power. The Act also hinders executive branch officers from offering government employment as a reward for politically faithful but inefficient party workers.

Id.

Although the complete redefining of "political campaign" as "partisan political campaign" might appear somewhat judicially intrusive, the court went even farther in delineating the kind of partisan activity that the Act proscribes. Political activity is proscribed only if it is "taken in concerted effort with partisan activity." Id. at 1356. "Congress intended the statutory term 'political campaigns' to refer to the formal efforts of organized political parties to secure the election of their candidates." Id. at 1355. Or, expressed another way,

[T]he statutory prohibition against taking an "active part in political management or in political campaigns" encompasses only active participation in, on behalf of, or in connection with, the organized efforts of political parties or partisan committees, clubs, and candidates.

Id. at 1354.

Another judicial circuit has expressed this requirement in terms of a nexus test:

[T]he concern is that federal employees-through coercion or machine politics-will act in concert and produce an inordinate influence on the way government executes the laws and provides services. Thus, finding "partisan activity" implicitly requires a nexus between the government employee and the effort to promote the political party or elect its candidate. It is not enough that the federal employee and the candidate pursue the same political goals independently; the two must work in tandem or be linked together for there to be a violation of the Hatch Act.

Biller v. United States Merit Systems Protection Board, 863 F.2d 1079, 1090 (2nd Cir. 1988).

Illustrative of this sharp dichotomy between partisan and nonpartisan political activity are the administrative regulations promulgated by the U.S. Office of Personnel Management. In a listing of permitted activities, 5 CFR � 733.111 states that federal employees may not only participate as candidates or supporters in a nonpartisan election, but they may also participate in partisan elections as supporters of independent candidates.

Hatch Act analysis applied to KRS 18A.140(4)

We discern no reason why the construction of KRS 18A.140(4) should differ in any material respect from the construction given to the corresponding portions of the Hatch Act. The Kentucky statute was enacted thirteen years after the Supreme Court clarified the scope of the Hatch Act in United Public Workers v. Mitchell. Both statutes are intended to prevent an organized political party from exerting its influence on government employees in a manner that unfairly strengthens the party's power or inhibits the efficient operation of government. This objective is not met by restricting employees' activities relating to advocacy groups, nonpartisan elections, and partisan activity that is not conducted in concert with organized party efforts. We therefore conclude that the only political advocacy or management activity constrained by KRS 18A.140(4) is active participation in, on behalf of, or in connection with the organized efforts of political parties or partisan committees, clubs, and candidates. To the extent that they conflict with this opinion, prior OAGs, including OAGs 76-637 and 88-81, are overruled.

Regarding an employee's right to be a candidate, we find that the provisions of KRS 18A.140(4) are not limited to "political campaigns," a term that we have construed to denote organized partisan activity. The statute says that a merit employee may not be "a candidate for nomination or election to any paid public office." We find this provision sufficiently clear to prevent a merit employee from running for any office other than the offices specifically mentioned in the statute.

United We Stand America

We have been furnished material from United We Stand America that sets out the organization's purpose. A letter from the general counsel states:

United We Stand America, Inc. has been organized as a nonprofit corporation under the District of Columbia Nonprofit Corporation Act to operate on a nonprofit basis for the promotion of social welfare, including specifically to educate and inform the public on subjects intended to benefit the community and nation, to conduct research and to involve citizens in government and government decision making, to disseminate information regarding public policy issues, to serve as an advocate before the public on public policy issues and to conduct other related educational and social welfare activities.

A document entitled "Most Frequently Asked Questions About United We Stand America" includes the following:

8. WILL STATE CHAPTERS OF USWA BE ENCOURAGED TO ENDORSE SPECIFIC CANDIDATES FOR OFFICE IN THEIR RESPECTIVE STATES (FOR NATIONAL, STATE AND LOCAL OFFICE)?

No, we will not endorse candidates, but we will keep our members informed on the candidates' record, and open that record up to debate. We may provide "Report Cards" on candidates. We will not be fielding candidates.

9. Is USWA a third party?

No, it is a nonpartisan, nonprofit citizens' action group.

10. What is Ross Perot's role in USWA?

He is the chairman and will be the national spokesman in USWA's efforts.

11. Will any contributions or membership fees be used to defray previous expenses of the Perot 92 campaign?

No, all contributions and membership fees will be used to cover future expenses of USWA.

We have no reason not to take United We Stand America at its word. While it remains closely associated with a former independent candidate, the organization does not conduct partisan activity and does not constitute a political party. Therefore it does not fall within any of the proscriptions in KRS 18A.140(4).

Conclusion

It is the opinion of the Attorney General that KRS 18A.140(4) is intended to serve the same purpose as the federal Hatch Act, and that federal interpretations of that Act should be consulted in construing corresponding portions of the Kentucky statute. Under this analysis, the Kentucky statute prohibits merit employees from engaging in partisan political activity as part of the concerted effort of an organized political party and from becoming candidates in any office for which compensation is paid. The statute does not prohibit other activity such as support for nonpartisan candidates and management of groups such as United We Stand America.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General