Alabama Advisory Opinions October 02, 2018: AGO 2019-001 (October 02, 2018)

Advisory Opinion Text

Honorable Mike Oakley

President, Bibb County Board of Education

721 Walnut Street

Centreville, Alabama 35042

Political Activities - Education, Boards of - County Employees -Schools - Fair Campaign Practices Act - Term of Office

Political activities by school employees discussed.

Use of school property for political activities discussed.

A person elected to the county board of education takes office on the certification of the county general election results, which occurs on the second Friday next after the general election.

A person appointed to fill a vacancy in the office of an elected county school superintendent is entitled to serve the remainder of the term of the previously elected superintendent. The school board is not authorized to remove that person and appoint a new person.

Dear Mr. Oakley:

This opinion of the Attorney General is issued in response to your request on behalf of the Bibb County Board of Education ("Board").

QUESTIONS

(1) It is clear that public officials cannot solicit employees to work on or contribute to their campaigns, but is it permissible for an employee of the Bibb County Board of Education to independently volunteer for his or her superintendent or board members' campaign?

(2) What rules apply to school employees wishing to support a candidate on public property? Can employees have large magnetic signs on personal vehicles on school property? Can employees put a large political placard or billboard in the bed of a personal truck on school property?

FACTS AND ANALYSIS

Section 17-1-4 of the Code of Alabama sets forth the rights of city, county, and state employees to participate in political activities and states, in pertinent part, as follows:

(a)(2) No person in the employment of any county, whether classified or unclassified, shall be denied the right to participate in city, county, or state political activities to the same extent as any other citizen of the State of Alabama, including endorsing candidates and contributing to campaigns of his or her choosing.

(4) All persons in the employment of any city, county, or state shall have the right to join local political clubs and organizations, and state or national political parties.

(5) All persons in the employment of any city, county, or state shall have the right to publicly support issues of public welfare, circulate petitions calling for or in support of referendums, and contribute freely to those of his or her choosing.

Ala. Code § 17-1-4 (2010).

This section of the law allows school employees to support any candidates they so choose. This includes endorsing candidates and contributing financially to the campaigns and volunteering to work on the campaigns. There are, however, some limitations on when, where, and how this support may be given.

Section 17-17-5 of the Code of Alabama sets forth the limitations of employees engaging in political activities as follows:

(a) No person in the employment of the State of Alabama, a county, a city, a local school board, or any other governmental agency, whether classified or unclassified, shall use any state, county, city, local school board, or other governmental agency funds, property, or time, for any political activities.

(b)(1) No person in the employment of the State of Alabama, a county, a city, a local school board, or any other governmental agency may arrange by salary deduction or otherwise for any payments to a political action committee or arrange by salary deduction or otherwise for any payments for the dues of any person so employed to a membership organization which uses any portion of the dues for political activity. For purposes of this subsection only, political activity shall be limited to all of the following:

a. Making contributions to or contracting with any entity which engages in any form of political communication, including communications which mention the name of a political candidate.

b. Engaging in or paying for public opinion polling.

c. Engaging in or paying for any form of political communication, including communications which mention the name of a political candidate.

d. Engaging in or paying for any type of political advertising in any medium.

e. Phone calling for any political purpose.

f. Distributing political literature of any type.

g. Providing any type of in-kind help or support to or for a political candidate.

(2) Any organization that requests the State of Alabama, a county, a city, a local school board, or any other governmental agency to arrange by salary deduction or otherwise for the collection of membership dues from persons employed by the State of Alabama, a county, a city, a local school board, or any other governmental agency shall certify to the appropriate governmental entity that none of the membership dues will be used for political activity. Thereafter, at the conclusion of each calendar year, each organization that has arranged for the collection of its membership dues from persons employed by the State of Alabama, a county, a city, a local school board, or any other governmental agency shall provide the appropriate governmental entity a detailed breakdown of the expenditure of the membership dues of persons employed by the State of Alabama, a county, a city, a local school board, or any other governmental agency and collected by the governmental entity. Any organization that fails to provide the required certifications, that reports any expenditures for political activity, or that files false information about political activity in any of its reports shall be permanently barred from arranging for the collection of its membership dues by any governmental entity. The Examiners of Public Accounts shall annually review a sample of at least 10 percent of the certifications filed with each governmental entity and report its findings to the appropriate governmental entity.

(c) Any person who is in the employment of the State of Alabama, a county, a city, a local school board, the State Board of Education or any other governmental agency, shall be on approved leave to engage in political action or the person shall be on personal time before or after work and on holidays. It shall be unlawful for any officer or employee to solicit any type of political campaign contributions from other employees who work for the officer or employee in a subordinate capacity. It shall also be unlawful for any officer or employee to coerce or attempt to coerce any subordinate employee to work in any capacity in any political campaign or cause. Any person who violates this section shall be guilty of the crime of trading in public office and upon conviction thereof, shall be fined or sentenced, or both, as provided by Section 13 A-10-63.

Ala. Code § 17-17-5 (Supp. 2017) (emphasis added).

Section 17-17-5 prohibits a public employee from using public funds, property, or time for political activities and provides that any person who violates this section is guilty of the crime of trading in public office. Any employee engaging in political activity must also be on approved leave or be on personal time before or after work or on a holiday.

This Office also notes that the Students First Act prohibits the grant or denial of tenure, terminations, or transfers and reassignments of school board employees based on personal or political reasons on the part of the employer. Ala. Code §§ 16-24C-4, 16-24C-6, 16-24C-7 (2012). Thus, these employment decisions should not be based on whether an employee contributed, volunteered, or declined to volunteer for a particular political campaign.

This Office has previously determined that the wearing of buttons, banners, or the like is considered symbolic speech and is protected by the First Amendment. Opinion to Honorable Donald B. Sweeney, Jr., Attorney, Pell City Board of Education, dated July 28, 1984, A.G. No. 94-00255, citing Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 505 (1969). The Board of Education, however, can regulate speech in schools that would interfere with the educational process; and thus, may promulgate rules which regulate the wearing or displaying of political buttons or banners while at work to avoid disruption in the classroom and in school. Id. Employees are not allowed to campaign or engage in political activities during normal working hours.

The Sweeney opinion also stated that an employee may place bumper stickers on his or her personal vehicle which is parked in the school parking lot while the employee is at work. You question whether a magnetic sign can be placed on the car door of a personal vehicle in the school parking lot. It would seem reasonable that a magnetic sign on the side of a car would be similar to a bumper sticker and would be similarly permissible.

You further question whether a personal truck with a large political sign or billboard placed in the bed of the truck could be parked in the school parking lot. Whether this type of sign would be permissible would depend on many factors such as the size of the sign, the size of the parking lot, its location on school grounds, and whether the sign could be obstructing the school parking lot or in some way disruptive to school activities. Thus, the Board may promulgate rules regulating the use of large signs or billboards in the back of trucks in school parking lots taking into consideration the interests of the employees and the interests of the schools.

CONCLUSION

School employees may volunteer to work on campaigns, contribute to candidates, and endorse candidates for school superintendent or for school board positions as long as the employees do not use public property, time, or funds to do so. An employee engaging in political activity must be on approved leave, on personal time before or after work, or on a holiday.

The school board may promulgate rules that regulate the wearing or displaying of political buttons or banners during work hours to avoid disruption in the school. Employees may place bumper stickers or magnetic signs on personal cars in the school parking lot. The school board may promulgate rules that regulate the use of large signs or billboards in or on personal vehicles in the school parking lot to avoid obstructing the parking lot or disruption of school activities.

QUESTION

(3) What rules apply to board members, superintendents, or non-incumbent candidates running for election regarding the use of public property? Can these candidates film a campaign ad in a quasi-public space like a school hallway or hold a political event in a gymnasium? Can candidates place flyers in the teachers' school mailboxes? Can they send email to all staff? Can they use footage from a school board meeting in a campaign ad?

FACTS AND ANALYSIS

As stated above under questions one and two, section 17-17-5 prohibits the use of public property for political activities. This Office has, however, opined that any common or public areas of public buildings and grounds can be used for holding press conferences or videotaping political advertisements provided that access to those areas is available to all candidates on an equal basis and subject to reasonable scheduling restrictions to ensure that such activities do not interfere with the conduct of the public business. Opinion to Honorable Gregory D. Wren, State Representative, dated September 8, 1998, A.G. No. 98-00211. That opinion further stated that any areas in public buildings that are not open for equal access to all candidates should not be used by any candidate, including public officials and employees.

You specifically ask whether political flyers may be placed in school mailboxes. This action is clearly prohibited as it would be using public property for political activities. See Sweeney. Similarly, an employee or public official is prohibited from using a school email account to send political messages to school employees using school email accounts.

You also question whether non-incumbent candidates may use school email accounts to send political messages to school employees and officials. This Office is not aware of any law that prohibits a non-incumbent candidate or an incumbent candidate from using a private or personal email account to send political messages to school employees at their school email addresses. This is assuming that the school email addresses are available to the public. An incumbent school official should not use their official position to obtain employee email addresses that are not equally accessible to the public or non-incumbent candidates. School employees and officials receiving those political messages on their school email accounts should not respond to or forward those political messages.

You also question the use of film footage from a school board meeting in a campaign advertisement. Your request does not state the origin of the footage. Because a school board meeting is open to the public, film footage from the public meeting can generally be used in a campaign advertisement.

CONCLUSION

Any common or public areas of school buildings and grounds can be used for holding press conferences or videotaping political advertisements provided that access to those areas is available to all candidates on an equal basis and subject to reasonable scheduling restrictions to ensure that such activities do not interfere with school business.

Political flyers may not be placed in school mailboxes and school email accounts may not be used to send political messages to school employees. A non-incumbent candidate or an incumbent candidate may use a private or personal email account to send political messages to school employees at their school email addresses if the school email addresses are available to the public. Film footage from a public school board meeting may generally be used in a campaign advertisement.

QUESTION

(4) When do county board of education members take office after a general election?

FACTS AND ANALYSIS

Section 16-8-2 of the Code of Alabama provides for the election and term of office of members of the county board of education as follows:

At the general election of state and county officers, a member or members shall be elected for terms of six years to succeed the member or members whose term or terms of office expire at that time. The members of the county board of education shall hold office until their successors have been elected and qualified. Before exercising any authority or performing any duties as a member of the county board of education, each member thereof shall qualify by taking and subscribing to the oath of office prescribed by Article XVI of the state constitution, the certificate whereof shall be filed in the office of the judge of probate of the county.

Ala. Code § 16-8-2 (2012) (emphasis added).

Section 17-14-5 of the Code of Alabama, a provision in the election laws, similarly provides for the election and term of office of county board of education members as follows:

Except as otherwise provided by local law, at the general election of state and county officers in November 2006, and biennially thereafter, a member or members of the county board of education shall be elected for a term of six years to succeed those whose term or terms of office shall expire at that time. Each member shall hold office until his or her successor has been elected and qualified.

Ala. Code § 17-14-5 (2006).

Both of these sections provide that the term of office for members of the county board of education expire at the time of the general election and that the member holds office until a successor is elected and qualified. Thus, the question is when a successor is considered elected and qualified after the general election.

This Office has previously stated that the results of an election are not official until the canvassing and declaration of the results are made by the county canvassing board for county offices and the state canvassing board for state offices. Opinion to Honorable Nancy Worley, Secretary of State, dated November 10, 2004, A.G. No. 2005-016 (what constitutes the certification of the results of the election for purposes of commencing a recount). The Worley opinion determined that in a county election, the official canvassing of the results described in section 17-12-15 of the Code of Alabama and the subsequent declaration of the results described in section 17-12-16 of the Code of Alabama constitute the certification of the results of the election. Id. at 5.

Sections 17-12-15 and 17-12-16 provide that the county election results are to be canvassed and certified "on the second Friday next after the election." Ala. Code §§ 17-12-15, 17-12-16 (2006). Therefore, a person is considered officially elected and qualified when the results of the election are certified on the second Friday next after the election. Accordingly, a person elected to the county board of education takes office on the certification of the county general election results.

CONCLUSION

A person elected to the county board of education takes office on the certification of the county general election results, which occurs on the second Friday next after the general election.

QUESTION

(5) Once the Board appoints a replacement for an elected superintendent pursuant to section 16-9-11 of the Code of Alabama, does the Board have the authority to remove the replacement and appoint another person before the election?

FACTS AND ANALYSIS

Section 16-9-11 provides for the filling of a vacancy in the office of county superintendent, in pertinent part, as follows:

(a) A vacancy in the position of county superintendent shall be filled by the county board of education within 180 days after such a vacancy occurs. Within 90 days after the occurrence of a vacancy, the county board of education shall announce, in a regularly or specially called meeting, a proposed process and time-line for posting and selecting a superintendent.

Ala. Code § 16-9-11(a) (2012).

The term of office of a successor appointee is set forth, in pertinent part, in section 16-9-8(b) of the Code of Alabama as follows:

(b) An elected county superintendent of education holding office on May 27, 1997, shall continue to serve the remainder of his or her term. If an elected county superintendent of education resigns or dies in office, his or her successor shall serve only until January 1 following the election of a successor. This section shall apply to the term of any county superintendent of education elected after May 27, 1997.

Ala. Code § 16-9-8(b) (2012).

This Office has previously stated that in accordance with section 16-9-11, if there is a vacancy in the office of superintendent, the Board must appoint a successor within 180 days of the vacancy occurring and that section 16-9-8(b) authorizes the appointed superintendent to serve the remainder of the term of the previously elected superintendent. Opinion to Honorable John F. Porter, III, Attorney, Jackson County Board of Education, dated June 8, 2015, A.G. No. 2015-049. There is no authority in the Code of Alabama for the Board to remove the appointed person and appoint another person to the position or to shorten the duration of the term of the appointed person. Opinion to Stanley A. Wade, Judge of Probate, Walker County, dated April 29, 1982, A.G. No. 82-00308. Thus, the appointed person is entitled to serve the remainder of the term of the previously elected superintendent.

CONCLUSION

A person appointed to fill a vacancy in the office of an elected county school superintendent is entitled to serve the remainder of the term of the previously elected superintendent. The school board is not authorized to remove that person and appoint a new person.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact me.

Sincerely,

STEVE MARSHALL, Attorney General.

G. WARD BEESON, III Chief, Opinions Division.