Oregon Advisory Opinions March 16, 1978: OAG 78-31 (March 16, 1978)

OAG 78-31.

Oregon law does not forbid public employes from participating in political activities as long as such participation is not "during working hours." ORS 260.432. The state's policy with respect to political activity by public employes is well summarized by the notice which ORS 260.432(3) requires

every "public employer" to post conspicuously:

"ATTENTION TO ALL EMPLOYES:

"The restrictions imposed by the law of the State of Oregon on your political activities are that: No public employe shall solicit any money, influence, service or other thing of value, or otherwise aid or promote any political committee for the nomination or election of any person to public office while on the job during working hours. However, nothing in this section is intended to restrict the right of a public employe to express his personal political views.

"It is therefore the policy of the State and your public employer that you may engage in political activity except to the extent prohibited by state law when on the job during working hours."

The term "public employer" means the state and any of its agencies and institutions and includes the city, county, or other political subdivision. ORS 260.432(4).

So far as state law is concerned, a public employe has a right not only to engage in political activity, but also to be a candidate for office, including partisan office. (Subject to the prohibition of on-the-job political activity.) ORS 260.412 provides:

"(1) No person . . . shall . . . subject any person to undue influence with the intent to induce any person to:

". . . .

"(d) Be or refrain from or cease being a candidate; . . ."

It would be "undue influence" to threaten a person with loss of a position as a public employe, for becoming a candidate for public office. See our letter opinion to Assistant

Secretary of State Gregory McMurdo, dated March 10, 1978 (OP-4268).

However, some state and local public employes are subject to federal restrictions on candidacy for political office. Such public employes, employed by agencies in an activity which is financed in whole or in part by loans or grants made by the United States or a federal agency, are subject to a stringent federal prohibition against candidacy for any partisan office. The Hatch Political Activity Act, 5 USC §§1501-1508. The federal statute and regulations prohibit such a state or local employe from being a candidate for partisan elective office even while on leave without pay. The pertinent prohibitions are as follows:

"5 USC § 1501. For the purpose of this chapter-- . . .

"(2) 'State or local agency' means the executive branch of a State, municipality, or other political subdivision of a State, or agency or department thereof;

" . . . .

"(4) 'State or local officer or employe' means an individual employed by a State or local agency whose principle 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

5 USC 1502. "(a) A State or local officer or employe may not--

"(1) use his official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for office;

"(2) Directly or indirectly coerce, attempt to coerce, command, or advise a state or local officer or employe to pay, lend, or contribute anything of value to a party, committee, organization, agency, or person for political purposes; or

"(3) be a candidate for elective office.

"(b) A State or local officer or employe retains the right to vote as he chooses and to express his opinions on political subjects and candidates.

"(c) Subsection (a)(3) of this section does not apply to--

"(1) the Governor or Lieutenant Governor of a State or an individual authorized by law to act as Governor;

"(2) the mayor of a city;

"(3) a duly elected head of an executive department of a State or municipality who is not classified under a state or municipal merit or civil-service system; or

"(4) an individual holding elective office."(fn1)

5 USC §1503. "Section 1502(a)(3) of this title does not prohibit any State or local officer or employe from being a candidate in any election if none of the candidates is to be nominated or elected at such election as representing a party any of whose candidates for Presidential elector received votes in the last preceeding election at which Presidential electors were selected."

The federal statute gives the United States Civil Service Commission power to determine whether a violation of §1502 has occurred and whether the violation warrants the removal of the officer or employe from his office or employment. 5 USC §1505. When the United States Civil Service Commission finds "that a state or local officer or employe has not been removed from his office or employment within 30 days after the notice of a determination by the Commission that he has violated §1502 of this Title and that the violation warrants removal," or that "the state or local officer or employe has been removed and has been appointed within 18 months after his removal to an office or employment in the same state in a state or local agency which does not receive loans or grants from a federal agency," the commission may order that an amount equal to two years pay at the rate the officer or employe was receiving at the time of the violation be withheld from the loans or grants received by the state or local agency involved. 5 USCA §1506(a).

The Employment Division of the Department of Human Resources receives substantially all of its administrative funds by grant under Title III of the Federal Social Secutity Act, and, therefore, it is our opinion that virtually all employes of the

Employment Division have as their principal employment the exercise of functions in connection with a federally financed "activity." In other state agencies receiving federal loans or grants, a decision would have to be made on a case-by-case basis.

With regard to the matter of allowable political activities, the regulations of the United States Civil Service Commission, Chapter I B, §151.111 Permissible Activities state:

"(a) All state or other officers or employes are free to engage in political activity to the widest extent consistent with the restrictions imposed by law and this part. A state or local officer or employe may participate in all political activity not specifically restricted by law and this part, including candidacy for office in a non-partisan election and candidacy for political party office." 40 FR 42731, Sept. 16, 1975. 5 CFR §151.111.

Neither the federal statute nor the regulations of the United States Civil Service Commission specifically speak to the question of whether an employe in a federally financed activity otherwise forbidden to become a candidate for partisan political office can escape the prohibition by taking a "leave of absence without pay." However, the last informational pamphlet from the United States Civil Service Commission available to us, entitled "Political Activity of Federal Officers and Employees," states on page 8:

"Employees on Leave.

"An employee who is subject to the basic political-activity prohibitions while on active duty is subject to them while on leave with pay, leave without pay, or furlough, and incurs the

same penalties for an offense committed while in leave or furlough status as for an offense committed while on active duty. However, if lump-sum payment is made for accumulated annual leave and the person involved is on terminal leave, he is not subject to the political-activity restrictions during the period covered by the lump-sum payment or thereafter.

"It is not permissible for an employe to take leave of absence for the purpose of working with a political candidate, committee, or organization, or the purpose of becoming a candidate for office with the understanding that he will resign his position if nominated or elected ." (Emphasis added).

We have found no court case in which this interpretation of the "leave of absence without pay" question has been decided, but we are informed by the Office of the General Counsel of the United States Civil Service Commission in Washington, D.C., that the policy has been in effect for more than 30 years and administered uniformly without challenge.

In view of the fact that "regular" employes in state service continue to have employment rights under ORS chapter 240, and Personnel Division Rules 71-100 -- 71-600, even while on "leave without pay" granted by the agency or the administrator of the Personnel Division in accordance with ORS 240.510, it is our opinion that the interpretation of the General Counsel is correct.

State employes or agencies seeking further discussion of the subject matter of this opinion may wish to obtain a copy of a memorandum prepared by the Personnel Division of the Executive Department, dated July 8, 1975, entitled "Policy

Concerning Political Rights of Employes of the State of Oregon." Additional questions can be addressed to the United States Civil Service Commission, 319 S.W. Pine Street, Portland, Oregon 97204, Telephone 221-3144.