Texas Advisory Opinions July 29, 1996: AGO DM-408 (July 29, 1996)

No. DM-0408 (1996).

Morales Opinion No. DM-408

Office of the Attorney General State of Texas

Dear Ms. Linares:

Government Code section 467.025(a)(5) provides that a member of the Texas Lottery Commission may not "directly or indirectly coerce, attempt to coerce, command, or advise a person to pay, lend, or contribute anything of value to an- other person for political purposes." You ask whether section 467.025(a)(5) prohibits a commissioner, acting in an unofficial, personal capacity, from participating in the po- litical process by either individually, or as a member of a group, soliciting or advising contributions be made to po- litical candidates. If it does, we understand you to ask whether section 467.025(a)(5) contravenes the First Amend- ment of the United States Constitution.

Section 467.025(a)(5) expressly prohibits a commis- sioner from advising a person to make a political contribution, and by its terms, the section encompasses un- official, as well as official, conduct. In addition, although section 467.025(a)(5) does not explicitly prohibit a commissioner from soliciting a political contribution, we construe the statute to preclude it. The section thus pro- hibits a commissioner from soliciting a political contribution in his or her personal capacity. Finally, we do not believe a court would find section 467.025(a)(5) un- constitutional on its face, although certain applications of the statute may be unconstitutional.

We begin by briefly describing the provision in ques- tion. Government Code section 467.025(a) generally lists conduct that is prohibited to a member of the commission. With the exception of subsection (4), section 467.025(a) ap- plies to personal, as well as official, conduct:

A commission member may not:

(1) accept any employment or remunera- tion from [certain entities];

(2) play any lottery or bingo game con- ducted in this state;

(3) accept or be entitled to accept any part of the winnings to be paid from a lottery or bingo game conducted in this state;

(4) use the member's official authority to affect the result of an election or nomina- tion for public office; or

(5) directly or indirectly coerce, at- tempt to coerce, command, or advise a person to . . . contribute . . . to another person for political purposes. [Emphasis added.]

A member who violates these prohibitions is subject to re- moval by the governor. [footnote 1] Because the legislature explicitly has limited section 467.025(a)(4) to a commissioner's official authority, we believe that the legislature likewise expressly would have restricted the scope of subsection (a)(5) to conduct in the member's offi- cial capacity if the legislature had desired to except actions taken in the commissioner's personal capacity. Par- ticularly in the absence of such an explicit limitation, we must construe section 467.025(a)(5) to apply to a commis- sioner's official and unofficial conduct.

Section 467.025(a)(5) thus explicitly forbids a commis- sioner, in his or her personal capacity, from advising a person to contribute for political purposes. The statute does not, however, expressly forbid a commissioner to so- licit a political contribution. Furthermore, while the terms "coerce," "command," and "advise" may imply a rela- tionship in which one party is perceived as superior to the other, the term "solicit" may suggest a straightforward re- quest in a relationship of equals. [footnote 2] We therefore proceed to consider whether section 467.025(a)(5) precludes solicitation.

In our opinion, the legislature patterned section 467.025(a)(5) after 5 U.S.C. § 1502(a)(2), which is part of the Hatch Act. [footnote 3] Section 1502(a)(2), 5 U.S.C., forbids an officer or employee of a state or local agency that receives federal funds [footnote 4] to "directly or indirectly coerce, attempt to coerce, command, or advise" another state or local officer to make a political contribu- tion. The phrase "directly or indirectly coerce, attempt to coerce, command, or advise" appears verbatim in Government Code section 467.025(a)(5). Given that the federal provi- sion originally was enacted in 1940, [footnote 5] while the Lottery Commission's counterpart was enacted in 1993, [footnote 6] we believe the state legislature lifted the quoted phrase out of the federal law. Consequently, we be- lieve we must construe the state law consistently with the federal law.

At least one federal court has construed 5 U.S.C. § 1502(a)(2) to apply to the solicitation of funds. [footnote 7] We accordingly construe Government Code sec- tion 467.025(a)(5) to prohibit soliciting, as well as coercing, commanding, or advising a political contribution. Section 467.025(a)(5) thus forbids a member of the Lottery Commission to solicit contributions in either the member's official or unofficial capacity.

You are concerned that, if Government Code section 467.025(a)(5) applies to a commissioner's unofficial con- duct, the statute may violate the First Amendment to the United States Constitution. In essence, you suggest that section 467.025(a)(5) unconstitutionally may impinge upon a commissioner's right of free speech. We do not believe a court would find the statute facially unconstitutional for overbreadth or vagueness.

The United States Supreme Court has determined that the government has a special interest in regulating its employ- ees' speech. [footnote 8] Nevertheless, to constitutionally regulate its employees' speech, the govern- ment successfully must balance the interests of an employee, as a citizen, "in commenting upon matters of public concern" against the "interest of the State, as an employer, in pro- moting the efficiency of the public services it performs through its employees." [footnote 9] We believe this rule applies also to the rights of officers of the government, particularly those who are appointed.

Thus, to determine whether section 467.025(a)(5) fa- cially violates the constitution, we must balance the state's interest in legislation against the rights of an af- fected individual. Because such an issue is necessarily fact-bound, this office generally is unable to definitively resolve the issue absent definitive judicial guidance. [footnote 10] In this case, however, we believe the courts have provided sufficient directives, both regarding overbreadth and vagueness, so that we may resolve this issue as a matter of law. We consider first whether the statute is overbroad. In Broadrick v. Oklahoma the United States Supreme Court con- sidered a challenge to an Oklahoma statute forbidding a classified service employee to solicit or receive a "contribution for any political organization, candidacy, or other political purpose." [footnote 11] Appellants before the Court, Oklahoma classified service employees charged with actively engaging in partisan political activities among their coworkers for the benefit of their superior, contended that the statute "purports to reach protected, as well as unprotected conduct," and is therefore overbroad. [footnote 12] The Court disagreed. [footnote 13] Ac- cording to the Court, particularly with regard to a statute that regulates conduct as well as speech, the statute is un- constitutionally overboard only if the overbreadth is substantial, "judged in relation to the statute's plainly legitimate sweep." [footnote 14] Absent substantial over- breadth, the Court continued, a court should not strike the statute in its entirety; rather, the court should cure the overbreadth on a case-by-case basis. [footnote 15]

Furthermore, the Court found, the Oklahoma State Per- sonnel Board and Attorney General had construed the statute to prohibit only "clearly partisan political activity." [footnote 16] While the Court conceded that the provi- sions might be applied improperly to an activity such as the display of political buttons or bumper stickers, the Court concluded that the provision is "not substantially overbroad and is not, therefore, unconstitutional on its face." [footnote 17]

Similarly, courts have refused to strike a statute as unconstitutionally vague if "the ordinary person exercising ordinary common sense can sufficiently understand and com- ply. . . ." [footnote 18] Thus, a court will not strike as vague a statute, the terms of which plainly encompass "[t]he general class of offenses to which the provisions are directed . . . , even though marginal cases could be put where doubts might arise." [footnote 19] In United States Civil Service Commission v. National Association of Letter Carriers, for example, the United States Supreme Court con- sidered a constitutional challenge to a federal law [footnote 20] that prohibited a federal employee from ac- tively participating "in political management or in political campaigns." [footnote 21] The Court concluded that the statute was not impermissibly vague. [footnote 22] Additionally, the Court determined that the statute was not substantially overbroad. [footnote 23] Moreover, in that case the United States Supreme Court stated that Congress constitutionally may restrict the right of federal employees to solicit political contributions. The statute at issue in National Association of Letter Carriers did not distinguish between an employee's job-related and private conduct. [footnote 24]

In view of Broadrick and the other authorities cited above, we do not believe a court would find Government Code section 467.025(a)(5) unconstitutionally overbroad or vague on its face and as a matter of law. Like the state's inter- est in regulating classified civil service employees, discussed in Broadrick, we believe a court would find that the state has a heightened interest in restricting the po- litical activities of commissioners. The commission has broad authority over state lotteries, as well as over state authorized bingo games. [footnote 25] The extent to which section 467.025(a)(5) may be overbroad or vague must be de- termined on a case-by-case basis. [footnote 26]

Government Code section 467.025(a)(5), pro- viding that a member of the Texas Lottery Commission may not "directly or indirectly co- erce, attempt to coerce, command, or advise a person to pay, lend, or contribute anything of value to another person for political pur- poses" applies to activities of commissioners both in their official and personal capaci- ties. Section 467.025(a)(5) expressly prohibits a commissioner from advising a po- tential donor to contribute to a political cause, and it implicitly prohibits a commis- sioner from soliciting a contribution.

A court probably would not find section 467.025(a)(5) unconstitutional on its face and as a matter of law.

Yours very truly,

D A N M O R A L E S Attorney General of Texas

JORGE VEGA First Assistant Attorney General

SARAH J. SHIRLEY Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge Assistant Attorney General

____________________

Footnotes:

1. Gov't Code § 467.026(a)(3).

2. Compare WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 59, 256, 264 (1990) (defining "advise," "coerce," and "command," respectively) with id. at 1122 (defining "solicit").

3. 5 U.S.C. ch. 15.

4. See 5 U.S.C. § 1501(4); Bauers v. Cornett, 865 F.2d 1517, 1520 (8th Cir. 1989).

5. Act of July 19, 1940, ch. 640, 54 Stat. 767 (1940) (codified as amended at 5 U.S.C. § 1502).

6. See Act of May 11, 1993, 73d Leg., R.S., ch. 284, § 1, 1993 Tex. Gen. Laws 1299, 1300. In 1983, the legislature had enacted a similar statute prohibiting a state employee from "coerc[ing], at- tempt[ing] to coerce, command[ing], restrict[ing], attempt[ing] to restrict, or prevent[ing]" a contribution for a political purpose. See Act of May 28, 1983, 68th Leg., R.S., ch. 579, § 3, 1983 Tex. Gen. Laws 3763, 3764, codified as Gov't Code § 556.004(a)(2).

7. See Bauers, 865 F.2d at 1520.

8. Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).

9. Id.

10. See Attorney General Opinion DM-42 (1991) at 2-3.

11. Broadrick v. Oklahoma, 413 U.S. 601, 605-06 (1973). We note that the statute at issue in Broadrick was not limited to a classified service employee's on-the-job or job-related conduct. See id. at 603 n.1, 605-06.

12. Id. at 610.

13. Id. at 615.

14. Id.

15. Id. at 615-16.

16. Id. at 617.

17. Id. at 618.

18. United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 579 (1973).

19. Id. (quoting United States v. Harriss, 347 U.S. 612, 618 (1954). Statutory vagueness is a con- cern under Fifth Amendment due-process principles. Id. Because a vague statute may chill protected speech, however, vagueness is of heightened concern in statutes impinging on speech. See McNea v. Garey, 434 F. Supp. 95, 106 (N.D. Ohio 1976). "Where a statute's literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the [due- process] doctrine demands a greater degree of specificity that in other contexts." Smith v. Goguen, 415 U.S. 566, 573 (1974).

20. 5 U.S.C. § 7324(a) (amended 1993). The portions of 5 U.S.C. § 7324(a) that the National As- sociation of Letter Carriers Court quoted were omitted in the revisions to the Hatch Act made by section 2(a) of Pub. L. No. 103- 94.

21. Id. at 550.

22. Id. at 579-80.

23. Id. at 580.

24. See National Ass'n of Letter Carriers, 413 U.S. at 550 (quoting 5 U.S.C. § 7324(a)(2), amended 1993). In National Association of Letter Carriers the Court held that Congress may prevent federal em- ployees from holding a party office, working at the polls, and acting a party paymaster for other party workers. Id. at 556. Thus, the statute at issue was valid. Id. Furthermore, the Court stated that the statute would be valid even if it plainly and understandably forbade other partisan political activities, including "actively participating in fund- raising activities for a partisan candidate or political party." Id. As the court stated, "neither the First Amendment nor any other provision of the Constitution invalidates a law barring this kind of partisan political conduct by federal employees." Id. The Supreme Court continued by summarizing the history of governmental restriction of its em- ployees' partisan political activity. See id. at 557-63. According to the Court, that history goes back at least as far as Thomas Jefferson, who was, as president, disturbed by the political activities of some of the employees of the executive branch. Id. at 557 (citing 10 J. RICHARDSON, MESSAGES AND PAPERS OF THE PRESIDENTS 98 (1899).

25. See Gov't Code § 467.101.

26. See Broadrick, 413 U.S. at 615-16.