Oregon Advisory Opinions March 18, 1968: OAG 68-41 (March 18, 1968)

OAG 68-41.

No state statute prohibits a state employe from running for the legislature, however federal law provides sanctions if such person's employment (with certain exceptions) is principally connected with an activity financed in whole or in part by the Federal Government.

A state employe must resign in order to serve as a legislator because of the separation of powers between legislative, judicial and executive branches of government required by Article III, § 1, Oregon Constitution. Within the meaning of this constitutional provision, a state employe remains such even though on leave of absence.

You advise that you have been asked by a state employe to request our opinion of "* * * what is necessary for him to be a candidate for the Oregon State Legislature."

You then ask:

"Can he run for this office and still hold his position with the State? Must he take a leave of absence while the Legislature is in session, and would the State grant such a leave? If he were elected and took a leave during the session, could he return to the position from which he took the leave?"

In answer to your first question, there is no statute prohibiting a state employe from running for the legislature. Former ORS 240.705, which prohibited state employes under civil service from running for office, was repealed by § 5, chapter 630, Oregon Laws 1967. If, however, such person's employment is principally connected with an activity financed in whole or in part by the Federal Government, with certain exceptions noted below, he would fall within the provisions of 5 U.S.C.A., § 1502, which provides in part:

"(a) A State or local officer or employee may not---

"(3) take an active part in political management or in political campaigns."

"State or local officer or employee" as used in 5 U.S.C.A., § 1502, supra, is defined in 5 U.S.C.A., § 1501, to mean:

"* * * an individual employed by a State or local agency whose principal employment is in connection with an activity which is financed in whole or in part by loans or grants made by the United States or a Federal agency, but does not include---

"(A) an individual who exercises no functions in connection with that activity; or

"(B) an individual employed by an educational or research institution, establishment, agency, or system which is supported in whole or in part by a State or political subdivision thereof, or by a recognized religious, philanthropic, or cultural organization * * *."

The Federal Civil Service Commission is empowered under 5 U.S.C.A., § 1505, to determine at a hearing whether a state officer or employe is in violation of 5 U.S.C.A., § 1502, supra, and order that if such employe has violated the latter statute and has not been removed from his employment, federal funds shall be withheld from the state agency employing him in an amount equal to two years' pay at the rate the employe was receiving at the time of the violation. 5 U.S.C.A., § 1506.

We will deal with your second and third questions together, because the same law is applicable to both.

If the state employe is the holder of an "office," he cannot be a member of the legislature and retain his state employment because of the provisions of Article II, § 10, Oregon Constitution, which provides:

"No person holding a lucrative office, or appointment under the United States, or under this State, shall be eligible to a seat in the Legislative Assembly; nor shall any person hold more than one lucrative office at the same time, except as in this Constition (sic) expressly permitted; Provided, that Officers in the militia, to which there is attached no annual salary, and the Office of Post Master, where the compensation does not exceed One Hundred Dollars per annum, shall not be deemed lucrative."

Of broader application in answering your second and third questions, however, in that it may affect any state employe, is Article III, § 1, Oregon Constitution, which provides:

"The powers of the Government shall be divided into three seperate (sic) departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided."

"* * * the exercise of the 'functions' of a department of government gives to the word 'functions' a broader sweep and more comprehensive meaning than 'official duties.' It contemplates a wider range of the exercise of functions including and beyond those which may be comprehended in the 'official duties' of any one officer.

"It may appear to some as a construction of extreme precaution, but we think that it expresses the considered judgment and deliberation of the Oregon Convention to give greater force to the concepts of separation by thus barring any official in one department of government of the opportunity to serve any other department, even as an employee. * * *

"Our conclusion is that the word 'functions' embodies a definite meaning with no contradiction of the phrase 'official duties' that is, he who exercises the functions of another department of government may be either an official or an employee." Monaghan v. School District No. 1, (1957) 211 Or. 360, 370, 373, 315 P. (2d) 797.

A state legislator is "charged with official duties" within the meaning of Article III, § 1 (Monaghan v. School District No. 1, supra), as a member of the legislature. (Article XV, § 8, specifically exempts from the provisions of Article III, § 1, and Article II, § 10, both supra, any "person employed by the State Board of Higher Education," and any "member of any school board or employee thereof * * *.")

A person on a leave of absence is generally considered to be continuing in his employment. The term "leave of absence" has been held to signify nothing more than an authorized temporary absence from work for other than vacation purposes. Employment Security Commission v. Vulcan Forging Company, (1965) 375 Mich. 374, 134 N.W. (2d) 749. See also Southwestern Bell Telephone Co. v. Thornbrough, (1960) 232 Ark. 929, 341 S.W. (2d) 1; Bowers v. American Bridge Company, (1956) 43 N.J. Super. 48, 127 A. (2d) 580; State ex rel. Cutright v. Akron Civil Service Commission and State ex rel. May v. Akron Civil Service Commission, (1953) 95 Ohio App. 385, 120 N.E. (2d) 127. (The courts have made an exception for reasons of public policy in cases where a person in time of national emergency enters military service. In such cases, it has been held that a person on leave of absence from a state office retains the office and is not in violation of a provision in a state constitution prohibiting a person from holding a state office at the same time that he holds an office by federal appointment. See Kobylarz v. Mercer, (1943) 130 N.J.L. 44, 31 A. (2d) 208; State ex rel. McGaughey v. Grayston, (1942) 349 Mo. 700, 163 S.W. (2d) 335; McCoy v. Board of Supervisors of the County of Los Angeles et aL, (1941) 18 Cal. (2d) 193, 114 P. (2d) 569.)

It could be argued that a state employe on leave of absence does not "exercise any of the functions" of the executive department and that by serving in the legislature he would not violate the provisions of Article III, § 1, supra.

However, the court's opinion in Monaghan v. School District No. 1, supra, compels the conclusion that the prohibition of Article III, § 1, would apply in such a case because the entire purpose of this constitutional provision would be violated where a person continuing in employment as a state employe were simultaneously serving in the legislature. The Monaghan case involved a situation where a member of the legislature sought to be employed as a school teacher. Holding that the person could not hold both positions simultaneously, the Oregon court explained the reason why Article III, § 1, was included in the Constitution and indicated the scope of its application:

"* * * Our concern is not with what has been done but rather with what might be done, directly or indirectly, if one person is permitted to serve two different departments at the same time. The constitutional prohibition is designed to avoid the opportunities for abuse arising out of such dual service whether it exists or not. Judge Holman, who heard this matter in the circuit court, in his opinion employed a cogent illustration of the possibility of the coercive opportunities which might arise if a school teacher was permitted to act as a legislator during the term of his employment in the school system:

" '* * * Conceivably the school board could say to its employee who is serving in the legislature, "You must vote in favor of certain bills that are advantageous to us and which increase our authority. If you do we will increase your salary and if you do not you will be penalized in your position in certain respects." Would this relationship not then tend to concentrate power in the branch of the government by which the member of the legislature was employed and to the detriment of the legislative branch? * * *.'

"In emphasis of the importance and need of vigilance to avoid the trespass of one of the major departments of government upon the domains so wisely reserved to the other two, we conclude with the words of Madison, taken from 1 The Federalist, p. 340:

" 'It is equally evident that, in reference to each other, neither of them ought to possess, directly or indirectly, an overruling influence in the administration of their respective powers. It will not be denied that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.' (Emphasis supplied.)" Monaghan v. School District No. 1, (1957) 211 Or. 360, 376, 377, 315 P. (2d) 797.

It is clear that from the reasoning of the Oregon court in the Monaghan case, supra, that a state employe, on leave of absence without pay, would be considered as continuing in full employment by the State of Oregon within the meaning of Article III, § 1, and as such could not at the same time serve as a member of the legislature. Such employe, even though on leave, retains his benefits under the retirement system for state employes. ORS 237.091. If he is a classified employe, he retains his tenure under civil service unless he fails to report for work at the end of his leave. ORS 240.510. He remains, in a true sense, a state employe and could be under the potential pressure of the state agency employing him, as described in the Monaghan case. As such, it would violate the intended purpose of Article III, § 1, to consider that while on simple leave of absence from his state job he could serve as a member of the legislature.

Further, inasmuch as the Monaghan case dealt with a fact situation where the legislature was not in session, and yet held a member thereof to be in

eligible to be employed by a school district, it plainly would make no difference whether or not the legislature is actually in session at the time a member thereof may want to be employed by the state, so far as the applicability of Article III, § 1, is concerned.

We therefore answer your second and third questions by saying that a person employed by the State of Oregon would be required to resign from such employment in order to serve as a member of the Legislative Assembly. A leave of absence would not affect his status as a state employe, and the separation of powers required by Article III, § 1, would prevent such person from returning to state employment during the entire legislative term for which he is elected unless he resigns from his position in the legislature.