Oregon Advisory Opinions March 16, 1962: OAG 62-29 (March 16, 1962)
Collection: Oregon Attorney General Opinions
Docket: OAG 62-29
Date: March 16, 1962
Advisory Opinion Text
OAG 62-29.
District Attorney, Clackamas County
You inquire if the political activities of the Clackamas County Civil Service employes are limited only by § 41 (2) of the Clackamas County Act, or if the political activities are also limited by the provisions of rule XVIII of the Clackamas Civil Service Commission.
The authority of the county civil service commission is governed by the terms of the statute creating it and also by any other statute affecting the same subject matter. Opinions of the Attorney General, 1952-1954, p. 71.
Section 13 of the county civil service act provides in part:
"(1) The commission shall make suitable regulations not inconsistent with this Act to carry out the provisions thereof. * * *"
In compliance with this duty the Clackamas County Civil Service Commission promulgated rule XVIII which, being too long and involved to set out in full, contains at least six prohibitions against political activities of county employes.
Section 41 of the county act provides:
"(1) No person holding any position subject to civil service is under any obligation to contribute to any political or religious fund or to render any political service to any person or party. No person shall be removed, reduced in grade or salary or otherwise prejudiced for refusing to do so. No person shall discharge, promote, demote or in any manner change the official rank, employment or compensation of any person subject to civil service or promise or threaten to do so for giving, withholding or neglecting to make any contribution of money or services or any other valuable thing for any political, racial or religious purpose.
"(2) The commission shall prohibit persons subject to civil service under this Act from furthering the cause of any candidate for nomination or election to the governing body of the county."
These subsections of the county act place only two limitations on political activities and they provide that no civil service employe shall:
1. Be obligated to contribute funds or services, and
2. Further the cause of any candidate for the governing body of the county.
However, the general law---ORS 260.230 and 260.240---the Corrupt Practices Act, also places certain limitations on the political activities of holders of public positions. We assume that county civil service employes are included in this category. See opinion of the Attorney General No. 5162, dated February 8, 1961.
The purpose of the civil service act is to establish a classified service based upon merit principles with its primary object being the "promotion of efficiency and honesty in public service, and to remove employes from political domination and influence." Opinions of the Attorney General, 1946-1948, p. 31.
In carrying out this purpose the Clackamas County Civil Service Commission has the authority, under § 13 of the county act, to adopt rules and regulations. However, the scope of the rule-making power is limited by § 41 of the county act, as well as the provisions of state law, including the Corrupt Practices Act. As provided in Gouge v. David, (1949) 185 Or. 437, 459, 202 P. (2d) 489:
"* * * A statute which creates an administrative agency and invests it with its powers restricts it to the powers granted. The agency has no powers except those mentioned in the statute. It is the statute, not the agency, which directs what shall be done. The statute is not a mere outline of policy which the agency is at liberty to disregard or put into effect according to its own ideas of the public welfare. * * *"
"* * * Administrative rules and regulations can go no further than fill in the interstices of the dominant act. They can not overcome and override any of its provisions. * * *"
Civil service rule XVIII appears to contain many provisions entirely outside the scope of the statutes governing it.
Therefore, it is our opinion that the Clackamas County Civil Service Commission in promulgating rules must act within the confines of the statutes and that any part of the civil service rules inconsistent with those statutes must fall as being outside the scope of the commission's authority.
The question has also been raised as to whether or not a county civil service employe may be a party convention delegate or a precinct com
mitteeman. Although there is no prohibition in the county act concerning a precinct com
mitteeman, ORS 260.240 contains a specific prohibition against such activities. Based on previous opinions of this office, Opinions of the Attorney General, 1938-1940, p. 5, and Opinions of the Attorney General, 1946-1948, p. 47, it is our opinion that county civil service employes fall within the provisions of ORS 260.240 and are prohibited from being precinct committeemen.
The prohibition contained in ORS 260.240 against holders of public positions being a delegate to a convention as it pertains to this question refers only to a political convention for the county. This provision is probably obsolete since party candidates are no longer nominated at conventions. See Opinions of the Attorney General, 1946-1948, p. 47.