Kentucky Advisory Opinions August 13, 2015: OAG 15-011 (August 13, 2015)

Advisory Opinion Text

Subject: Whether KRS 150.081 imposes additional restrictions on political activity by employees of the Kentucky Department of Fish and Wildlife Resources

Requested by: David B. Wicker, General Counsel Kentucky Department of Fish and Wildlife Resources

Written by: Matt James

Syllabus: KRS 150.081 imposes additional restrictions on political activity by all employees of the Kentucky Department of Fish and Wildlife Resources, including prohibitions on running for public office, whether partisan or nonpartisan. KRS 150.081 does not violate the free speech rights given in the Kentucky and United States Constitutions.

Statutes construed: KRS 18A.140; KRS 150.081

OAGs cited: OAG 94-3; OAG 91-59; OAG 84-143; OAG 84-101

OPINION OF THE ATTORNEY GENERAL

David B. Wicker, General Counsel for the Kentucky Department of Fish and Wildlife Resources (“Fish and Wildlife”), has asked four questions pertaining to KRS 150.081:

1) Whether KRS 150.081 applies additional political participation restrictions on the Department’s classified employees in addition to those set forth in KRS 18A.140?

2) Do the political restrictions of KRS 150.081 apply to the Department’s unclassified employees?

3) What activities are prohibited?

4) Does KRS 150.081 violate classified or unclassified employees’ free speech rights under the Kentucky and United States Constitutions?

We advise that KRS 150.081 applies additional political participation restrictions on all Fish and Wildlife employees, both classified and unclassified, beyond the restrictions provided in KRS 18A.140. These restrictions include prohibitions on running for public office and actively participating in a campaign, whether partisan or nonpartisan. KRS 150.081 does not violate an employee’s free speech rights under the Kentucky and United States Constitutions.

KRS 150.081 provides:

While retaining the right to vote as he may please and to express privately his opinion of all political subjects and issues, no employee or officer of the department including the commissioner, shall take any active part in political management or political campaigns, nor shall he use his office or influence for the purpose of interfering in any election or affecting the results thereof, or for the purpose of coercing the political action of any body or person or for the purpose of directly or indirectly influencing any person in the selection or appointment of a member to the commission.

KRS 150.081 forbids employees of Fish and Wildlife from taking an active part in political campaigns, using their influence for the purpose of affecting the results of an election, or influencing the selection of Fish and Wildlife commissioners. This office is unable to find any authorities interpreting KRS 150.081.

KRS 18A.140(4) places similar but distinct limitations on political activities for classified employees:

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 partisan 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 an elected office if the election is on a nonpartisan basis, the officers or employees have complied with the requirements of KRS 61.080, and the duties of the elective office do not interfere with, or create any conflicts of interest with, the state duties of the officers or employees in the classified service.

KRS 18A.140(4) prevents all classified employees from holding political office and from taking part in the management of political parties or campaigns, although it does allow them to be candidates in nonpartisan elections. By its terms, it only applies to employees in the classified service. It does not contain the additional prohibitions in KRS 150.081 concerning using employment at Fish and Wildlife for the purpose of affecting elections or influencing the appointment of Fish and Wildlife commissioners.

“When construing multiple statutes, it is our duty to read all statutes in harmony with one another in order to effectuate all statutes, if possible.” Castle v. Commonwealth , 411 S.W.3d 754, 757-58 (Ky. 2013). We must interpret KRS 151.081 and KRS 18A.140 in order to give effect to both, and since KRS 151.081 imposes additional obligations not found in KRS 18A.140, those additional obligations also apply to employees of Fish and Wildlife. Regarding whether those obligations apply to both classified and unclassified employees, KRS 151.081 does not distinguish between classified and unclassified employees. “To determine legislative intent, we look first to the language of the statute, giving the words their plain and ordinary meaning.” Abel v. Austin , 411 S.W.3d 728, 738 (Ky. 2013). “It is fundamental that we will not read provisions into a statute that are not expressed therein by the legislature in the statutory text.” Commonwealth v. Dulin , 427 S.W.3d 170, 176 (Ky. 2014). If the legislature had intended for KRS 151.081 to apply to only classified employees of Fish and Wildlife, it would have so stated. Since the legislature used only the term “employee” in KRS 151.081, it applies to all employees of Fish and Wildlife, and not only classified employees.

Regarding what activities are prohibited by KRS 151.081, we cannot specify in advance what activities it prohibits. We advise using opinions interpreting KRS 18A.140(4) as general guidance. In OAG 91-59, we provided a general list of activities that a merit employee may or may not engage in:

Classified employees may participate in nonpartisan voter registration drives, may write a letter concerning a political candidate in a newspaper so long as that letter is not part of a concerted effort or part of a political campaign; a classified employee may take friends to the polls so long as he does not do so as an election worker or as part of an organized political effort, and may contribute to a political party so long as not solicited. Finally, a classified employee may purchase tickets to political party functions so long as it is voluntary and unsolicited, but may not sell tickets to the function.

. . . Contributions of labor or services by a classified employee toward a political campaign are prohibited by KRS 18A.140(4).

Id. (citations omitted); see also OAG 94-3 (“The Kentucky statute prohibits merit employees from engaging in partisan political activity as part of the concerted effort of an organized political party . . . .”); OAG 84-143 (“State merit employees may voluntarily attend a county party convention and vote for their choice of delegates to the state congressional convention.”).

However, we do note that KRS 18A.140(4) expressly allows classified employees to run for nonpartisan offices. See OAG 84-101 (“The above statute clearly permits a merit employee to become a candidate for a school district office and at the same time hold that office, if elected, since such office is filled on a nonpartisan basis . . . .”). KRS 151.081 contains no such exception, and prohibits taking active part in the management of political campaigns. Further, KRS 150.081 additionally provides that a Fish and Wildlife employee shall not “use his office or influence for the purpose of interfering in any election or affecting the results thereof.” It does not distinguish between partisan and nonpartisan elections. Accordingly, we advise that a Fish and Wildlife employee is prohibited by KRS 150.081 from running for office or actively participating in a campaign, whether partisan or nonpartisan.

Regarding whether KRS 150.081 violates a Fish and Wildlife employee’s free speech rights under Ky. Const. § 1, cl. 4 and U.S. Const. amend. I, “the law complained of is generally called a ‘resign-to-run’ statute.” Yonts v. Commonwealth ex rel. Armstrong , 700 S.W.2d 407, 408 (Ky. 1985). “Both the United States Supreme Court and the Kentucky Supreme Court have held that ‘[r]esign-to-run’ statutes do not violate the First Amendment, emphasizing that ‘[c]andidacy for public office is not a fundamental right.’” Lewis v. Commonwealth , No. 2002-CA-000990-MR, 2003 WL 21773838, at *1 (Ky. Ct. App. Mar. 10, 2004) (citing Yonts and Clements v. Fashing , 457 U.S. 957 (1982)). Accordingly, we advise that the restrictions on candidacy in KRS 150.081 do not violate freedom of speech under the Kentucky or United States Constitutions.

In summary, KRS 150.081 imposes additional restrictions on political activities on all Fish and Wildlife employees beyond those found in KRS 18A.140. KRS 150.081 prevents Fish and Wildlife employees from running for public office and actively participating in a campaign, whether partisan or nonpartisan. The “resign-to-run” provisions of KRS 150.081 do not violate the freedoms of speech in the Kentucky or United States Constitutions.

JACK CONWAY ATTORNEY GENERAL

Matt James, Assistant Attorney General

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Notes:

The penalty for violations of KRS 150.081 is a fine of “not less than fifty dollars ($50) nor more than five hundred dollars ($500). KRS 150.990(3).

Although in OAG 94-3, we advised 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,” we interpret the additional language in KRS 150.081 prohibiting the use of an employee’s “office or influence for the purpose of interfering in any election or affecting the results thereof” as providing an additional restriction applying to nonpartisan elections.

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