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Official Opinion 98-5

Official Opinion 98-5

April 6, 1998
To: 

Chancellor
University System of Georgia

Re: 

It is 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.

Your office has recently requested my opinion regarding the constitutionality of Board of Regents’ Policy 802.1603, which prohibits employees of the Board of Regents of the University System of Georgia from, among other things, seeking or holding elective office at the state or federal level. I understand that this question has arisen in the context of a professor who wishes to run for elective office without taking a leave of absence from his or her duties. In a similar context, this office has previously opined that a county government may prevent its employees from holding partisan elective office and from engaging in political activities during working hours. 1987 Op. Att’y Gen. U87-23. It is also my opinion now that it is 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.

Board of Regents Policy 802.1603 states in its entirety:

As responsible and interested citizens in a democratic society, employees of the University System are encouraged to fulfill their civic obligations and otherwise engage in the normal political processes of society. Nevertheless, it is inappropriate for System personnel to manage or enter political campaigns while on duty to perform services for the System or to hold elective political office at the state or federal level while employed by the System. Therefore, the following policies governing political activities are hereby adopted:

A. Employees may not manage or take an active part in a political campaign which interferes with the performance of duties or services for which he or she receives compensation from the System.

B. Employees may not hold elective political office at the state or federal level.

C. A candidate for or holder of an elective political office at the state or federal level may not be employed or hold a faculty, staff, or other position at an institution of the System, with or without compensation.

D. Employees seeking elective political office at the state or federal level must first request a leave of absence without pay beginning prior to qualification as a candidate in a primary or general election and ending after the general or final election. If elected to state or federal office such person must resign prior to assuming office.

E. Employees may seek and hold elective office at other than the state or federal level, or appointive office, when such candidacy for or holding of the office does not conflict or interfere with the employee’s duties and responsibilities to the institution or the System.

I should start by noting that the Board of Regents cannot prohibit its employees from “offering for or holding any elective or appointive office” of a county or municipal government in Georgia or of a “political party or political organization of this state, provided that the office is not full time and does not conflict with the performance of the official duties” of the employee. O.C.G.A. § 45-10-70. As Policy 802.1603 does not prevent employees from seeking or holding elective office in local government or in political parties or organizations, it does not violate Section 45-10-70.

Although I have found no published opinion of the Georgia appellate courts evaluating the constitutionality of Policy 802.1603, the Georgia Supreme Court addressed a similar situation in Galer v. Board of Regents of the Univ. Sys., 239 Ga. 268 (1977). There, a University System professor and librarian had been elected to the Georgia House of Representatives. However, Georgia Code Ann. § 26-2309 (now O.C.G.A. § 16-10-9) prevented her from simultaneously holding office in the legislative branch of the state government and employment in the executive branch, of which the University System is a part. See, e.g., 1997 Op. Att’y Gen. 97-1. After the Board of Regents declined her request for an unpaid leave of absence, she sued the Board seeking a declaratory judgment regarding the constitutionality of this prohibition. She alleged that “the statute [wa]s unconstitutional because it require[d] her to resign her teaching position as a condition to the exercise of her fundamental First Amendment right to hold public office.” Galer, 239 Ga. at 269.

The Supreme Court disagreed and held that “government employees may be subject to restrictions on the exercise of [their First Amendment] rights beyond that permissible if applied to private citizens” so long as those restrictions are “in furtherance of a significant governmental interest.” Id. at 270. In Galer, the court ruled that any infringement of First Amendment rights resulting from the statutory prohibition on simultaneous employment in two different branches of state government was justified by the significant governmental interest in upholding the Georgia Constitution’s separation of powers provision, which is found at Art. I, Sec. II, Para. III.

Therefore, to the extent that Policy 802.1603 prohibits University System employees from simultaneously holding elective office in the legislative or judicial branches of the state government, it is constitutional. However, this conclusion does not completely resolve the issue as Policy 802.1603 prohibits more than just this specific scenario. It also prohibits University System employees from holding elective office in the federal government or the executive branch of the state government and prohibits them from even seeking any state or federal elective office.

The United States Supreme Court has reviewed provisions similar to Policy 802.1603. In United States Civil Serv. Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548 (1973), the Court held that Section 9(a) of the federal Hatch Act, which prohibits employees of the federal government from actively participating in partisan political campaigns, was not unconstitutionally vague. The Court also reaffirmed its previous holding in United Public Workers v. Mitchell, 330 U.S. 75 (1947), in which it had held that Congress may prevent federal employees from participating in partisan campaigns, and went on to state that Congress may prevent them from “becoming a partisan candidate for, or campaigning for, an elective public office.” Letter Carriers, 413 U.S. at 556. The Court’s “judgment [was] that 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. See also Oklahoma v. United States Civil Serv. Comm’n, 330 U.S. 127 (1947); United States v. National Treasury Employees Union, 513 U.S. 454, 471 (1995).

In Mitchell, the Court sought to “balance the extent of the guarantees of freedom against a congressional enactment to protect a democratic society against the supposed evil of political partisanship by classified employees of government.” Mitchell, 330 U.S. at 96. It held that Congress was within its powers to impose such regulations as their infringement upon employees’ constitutional rights are justified by the government’s interest in good and efficient public administration. Employee political activity may pose a "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 (citing Ex parte Curtis, 106 U.S. 371 (1882)).

On the same day that it decided Letter Carriers, the Court also decided Broadrick v. Oklahoma, 413 U.S. 601 (1973), in which a group of Oklahoma state government employees challenged a state law that prohibited them from, among other things, being candidates for any paid public office. The Court rejected their challenge by holding that the state statute was not unconstitutionally vague. The Court did not need to rule more directly on the merits of such restrictions because the challengers did “not question Oklahoma’s right to place even-handed restrictions on the partisan political conduct of state employees.” Id. at 606. The Court did state, however, that the state government’s preventing its employees from “actively engaging in partisan political activities” would be constitutional. Id. at 610 (citing Letter Carriers, 413 U.S. at 548). This decision extended the holding of Letter Carriers to apply to the conduct of state employees as well.

In its Letter Carriers opinion, the Court recounted the long tradition in this country of limiting the political activities of governmental employees, dating back to President Jefferson’s concerns about the political works of employees of the federal executive branch. Letter Carriers, 413 U.S. at 557-63 (citing J. Richardson, Messages and Papers of the Presidents (1899)). Justice White wrote:

Such decision on our part would no more than confirm the judgment of history, a judgment made by this country over the last century that it is in the best interest of the country, indeed essential, that federal service should depend upon meritorious performance rather than political service, and that the political influence of federal employees on others and on the electoral process should be limited.

Id. at 557.

Based on the foregoing caselaw, it is my opinion that it is 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.

Prepared by:

CHRISTOPHER A. MCGRAW
Assistant Attorney General