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Official Opinion 2000-7

Official Opinion 2000-7

June 30, 2000
To: 

Commissioner
Department of Public Safety

Re: 

Official Code of Georgia Annotated § 35-2-12 may constitutionally be enforced to prohibit employees of the Department of Public Safety from contributing any money or any other thing of value to any person, organization, or committee for political campaign or election in county or state primaries or general elections.

You have requested my opinion as to the constitutionality and enforceability of O.C.G.A. § 35-2-12, which states that “[n]o person in the employ of the [Department of Public Safety] shall, either directly or indirectly, contribute any money or any other thing of value to any person, organization, or committee for political campaign or election in county or state primaries or general elections.” For the reasons set forth below, it is my opinion that O.C.G.A. § 35-2-12 may constitutionally be enforced to prohibit employees of the Department from making such contributions, provided that, to the extent that a Department employee would otherwise be legally authorized to run for political office, the statute should not be applied by the Department to prohibit the making of a contribution by the employee to the employee’s own political campaign.

It is, of course, clear that any limitation on campaign contributions implicates the First Amendment rights of freedom of association and freedom of expression. See Buckley v. Valeo, 424 U.S. 1 (1976). “It is equally clear, however, that government employees may be subject to restrictions on the exercise of [rights of political association and expression] beyond that permissible if applied to private citizens.” Galer v. Board of Regents, 239 Ga. 268, 270 (1977) (citing Broadrick v. Oklahoma, 413 U.S. 601 (1973); United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548 (1973); United Public Workers v. Mitchell, 330 U.S. 75 (1947)). With regard to a state’s interest as an employer in regulating the speech of its employees, the Supreme Court has noted that “[t]he problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Education, 391 U.S. 563, 568 (1968).

In United Public Workers v. Mitchell, 330 U.S. 75 (1947), the Court held that Congress may prohibit federal employees from participating in partisan political campaigns. The Court noted that “Congress recognizes danger to the service in that political rather than official effort may earn advancement and to the public in that governmental favor may be channeled through political connections.” Id. at 98 (citation omitted).

In United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548 (1973), the Court reaffirmed its decision in Mitchell and sustained the constitutionality of Section 9(a) of the federal Hatch Act, which prohibited federal employees from actively participating in partisan political campaigns.1 The Court stated that “[a]lthough Congress is free to strike a different balance than it has, if it so chooses, we think the balance it has so far struck is sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act." Id. at 564. As important interests, the Court noted the promotion of efficiency of public services and the avoidance of corruption, and stated that “it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent.” Id. at 564-65. The Court also stated that:

A related concern, and this remains as important as any other, was to further serve the goal that employment and advancement in the Government service not depend on political performance, and at the same time to make sure that Government employees would be free from pressure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their own beliefs.

Id. at 566 (citation omitted).

Neither the Georgia appellate courts nor the federal courts have directly passed on the constitutionality of O.C.G.A. § 35-2-12. However, in Segars v. Fulton County, 644 F.Supp. 682, 687 n.4 (N.D. Ga. 1986), the court, while not having occasion to rule on the constitutionality of the statute, noted that “if applied to restrict an employee’s candidacy, it appears facially overbroad.” At that time, O.C.G.A. § 35-2-12 contained a provision, not appearing in the current version, that no employee of the Department of Public Safety “shall take any part in the management, affairs, or political campaign of any candidate for public office.” The court’s obiter dictum appears to have been prompted by the defendant’s attempt to apply O.C.G.A. § 35-2-12 to support the county’s enforcement of its regulations regarding employees running for “any public office” against the plaintiff, a county employee who had been elected as the mayor of a city in another county in a non-partisan election. Id. at 683-84, 687 n.4. The court found that the county regulations were overbroad as applied to the plaintiff. Id. at 687-88.

In contrast, O.C.G.A. § 35-2-12, as it now reads, is limited by its own terms only to prohibit contributions in county or state primaries or general elections by employees of the Department of Public Safety, an agency with state-wide jurisdiction. I have also specifically opined, in other contexts, that particular restrictions against running for elected office are constitutional. See, e.g., 1998 Op. Att’y Gen. 98-5 (opining that, in light of Broadrick v. Oklahoma, 413 U.S. 601 (1973), United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548 (1973), and United Public Workers v. Mitchell, 330 U.S. 75 (1947), it was “constitutional for the Board of Regents to prohibit its employees from seeking or holding state or federal elective office while they are actively employed by the University System”). Nevertheless, I caution the Department against applying O.C.G.A. § 35-2-12 to prohibit, to the extent that an employee would otherwise be legally authorized to run for political office, the making of a contribution by the employee to the employee’s own political campaign. See O.C.G.A. § 45-10-70.

Furthermore, in considering the constitutionality of O.C.G.A. § 35-2-12, it is significant that other statutes and regulations prohibiting campaign contributions have been sustained by the courts. In Wachsman v. City of Dallas, 704 F.2d 160 (5th Cir. 1983), the court upheld the constitutionality of the remainder of a city ordinance prohibiting, among other things, city employees giving contributions in connection with non-partisan city council elections. In Wicker v. Goodwin, 813 F.Supp. 676 (E.D. Ark. 1992), the court upheld the constitutionality of an Arkansas statute forbidding, among other things, state troopers from making contributions for political campaigns.

In Reeder v. Kansas City Board of Police Commissioners, 733 F.2d 543, 544-45 (8th Cir. 1984), the court rejected a freedom of speech challenge to a Missouri statute forbidding officers or employees of the Kansas City Police Department from making political contributions. The court stated that “[t]he same power that may prevent a public employee from making a political speech or conducting a political meeting (even on the employee’s own time) may also forbid campaign contributions.” Id. at 547. Although noting that the “Supreme Court has never spoken directly on the subject of political contributions by police officers or other public employees,” the court relied on the following passage of the Supreme Court’s opinion in Kelley v. Johnson, 425 U.S. 238 (1976), which, in upholding a hair-length regulation of the Police Department of Suffolk County, New York, also set forth various other restrictions imposed by Suffolk County:

The hair-length regulation here touches Respondent as an employee of the county and, more particularly, as a policeman. Respondent’s employer has, in accordance with its well-established duty to keep the peace, placed myriad demands upon the members of the police force, duties which have no counterpart with respect to the public at large. Respondent must wear a standard uniform, specific in each detail. When in uniform he must salute the flag. He may not take an active role in local political affairs by way of being a party delegate or contributing or soliciting political contributions. He may not smoke in public. All of these and other regulations of the Suffolk County Police Department infringe on Respondent’s freedom of choice in personal matters….

Id. at 548 (quoting from Kelley v. Johnson, 425 U.S. at 245-46) (emphasis added).

In Reeder, the Eighth Circuit found in this passage from Kelley “an implication that restraints on campaign contributions would not be treated differently from other kinds of prohibitions against political activity that have been upheld.” Id. The court stated that:

We do not pretend to find in this passage a holding that a prohibition against contributions is valid. That question was not presented in Kelley. There is, however, a fairly clear implication in the opinion that the six Members of the Court who joined it believed that a restriction on contributions would be upheld. There is no other good explanation for the Court’s decision to list contributions in its opinion among those activities that the employees of the police department before it were not allowed to engage in.

Id. On appeal from remand, the court also sustained the Missouri statute against an equal protection challenge, stating that “[w]e now hold that if the state is justified in applying such restrictions generally and making them effective, as it could, against all police personnel within the state, then it may choose instead to limit the effect of this law to the locality where it is determined to be most needed.” Reeder v. Kansas City Board of Police Commissioners, 796 F.2d 1050, 1055 (8th Cir. 1986).

Moreover, the issue of prohibitions against campaign contributions has been previously addressed by this office. In 1982 Op. Att’y Gen. 82-56, my predecessor opined that Section 8B of the Campaign and Financial Disclosure Act,2 which provided that “[a] person acting on behalf of a public utility corporation regulated by the Public Service Commission shall not make, directly or indirectly, any contribution to a political campaign,” did not unconstitutionally violate the guarantees of freedom of expression or association. In 1984 Op. Att’y Gen. 84-71, my predecessor concluded, although not directly opining on the constitutionality thereof, that pursuant to Rule 3.501.H of the State Personnel Board,3 an employee in the classified service of the State Merit System could not, with one exception, make a political contribution.4

With regard to O.C.G.A. § 35-2-12, it thus appears that the same interests which have been deemed important enough by the courts to uphold other statutes and regulations restricting political contributions and other participation in political campaigns, including interests in promoting efficiency, avoiding corruption and political justice, ensuring that employment and advancement not depend on political performance, and making sure that employees are free from pressure and invitation to vote in a certain way or perform political chores, would also apply to and would likely sustain the prohibition by the General Assembly against employees of the Department of Public Safety making political contributions in county or state primaries or general elections.5 That the General Assembly has chosen to distinguish Department of Public Safety employees from other state employees does not lessen the significance of these interests, for, as the Court noted in Broadrick v. Oklahoma, 413 U.S. at 607 n.5 (citation omitted), the “legislature must have some leeway in determining which of its employment positions require restrictions on partisan political activities and which may be left unregulated. And a State can hardly be faulted for attempting to limit the positions upon which such restrictions are placed.”

Therefore, it is my official opinion that O.C.G.A. § 35-2-12 may constitutionally be enforced to prohibit employees of the Department of Public Safety from contributing any money or any other thing of value to any person, organization, or committee for political campaign or election in county or state primaries or general elections, provided that, to the extent that a Department employee would otherwise be legally authorized to run for political office, the statute should not be applied by the Department to prohibit the making of a contribution by the employee to the employee’s own political campaign.

CONCLUSION

Based on the above, it is my official opinion that O.C.G.A. § 35-2-12 may constitutionally be enforced against employees of the Department of Public Safety.

Prepared by:

KYLE A. PEARSON
Assistant Attorney General


1 On the same day that it decided Letter Carriers, the Court also decided Broadrick v. Oklahoma, 413 U.S. 601 (1973), which extended the holding of Letter Carriers to apply to state employees. In Wachsman v. City of Dallas, 704 F.2d 160, 171 (5th Cir. 1983), the court noted that “[v]irtually all the numerous restrictions on federal employee political activity upheld in Letter Carriers . . . apply as much to strictly state and local elections and political affairs as to elections for federal office and political activities attendant thereto.”

2 Section 8B is now codified at O.C.G.A. § 21-5-30 (f).

3 Rule 3.501.H is now set forth at Paragraph 3.501(F) of Rule 478-1-.03 of the Rules of the State Personnel Board.

4 The exception noted in the opinion, which was based on another provision of the Rules of the State Personnel Board, allowed an employee in the classified service to contribute to a governmental program for financing federal, state or local elections as permitted by federal or state law. Id. In addition to this exception, the Rules of the State Personnel Board now also allow a classified employee to contribute to his or her own campaign for any permitted office. See Paragraph 3.502(P) of Rule 478-1-.03.

5 Although not necessary, in my opinion, to sustain the statute, it should be noted that one of the primary functions of the Department of Public Safety is the operation of the State Patrol, whose members may be the most visible representatives of Georgia’s government. See Wicker v. Goodwin, 813 F.Supp. at 681 (“[a] state trooper is often the most conspicuous representative of the state government to a large percentage of the population, particularly those residing in rural communities who may view the trooper as a symbol of stability and authority”). In Reeder v. Kansas City Board of Police Commissioners, 733 F.2d at 547, which upheld a statute forbidding both officers and employees of a police department from making political contributions, the court stated that the surrender of rights otherwise beyond the reach of government power, which may be one of the duties undertaken by people who become public employees, “is especially true in the case of the police, whose duty it is to keep the peace by force of arms if necessary.”