Can an Arkansas non-management state employee run as an independent candidate for a county or city office?

Plain-English summary

A state representative asked the AG a clean question: can a non-management state employee run as an independent candidate in partisan county or municipal elections? The AG's answer was generally yes, with narrow exceptions.

Arkansas Code § 21-1-207 expressly protects the right to run for office: "No employee of the state, a county, a municipality, a school district, or any other political subdivision of this state shall be deprived of his or her right to run as a candidate for an elective office ... unless as necessary to meet the requirements of federal law as pertains to employees." That language is broad and protective.

The only meaningful federal restriction the AG identified is the federal Hatch Act, 5 U.S.C. §§ 1501 to 1508. The Hatch Act's candidacy ban applies only when three conditions are all met: the employee works in the executive branch of a state, municipality, or political subdivision; the employee is "principally employed" in connection with an activity financed in whole or part by federal loans or grants; and the employee's salary is "paid completely, directly or indirectly," by federal loans or grants. All three must be true. As the AG noted, the salaries of relatively few state employees are paid entirely from federal loans or grants, so the Hatch Act's candidacy ban has narrow real-world reach. Even when it does apply, it covers only partisan elections under 5 U.S.C. § 1503.

The AG also flagged a narrow Arkansas-specific carve-out: Ark. Code Ann. § 20-79-212(a) and (b) appears to bar state employees who administer Arkansas Rehabilitation Services from any "political activity" other than voting and expressing opinions. That statute predates § 21-1-207, applies to a small subset of employees, and was not the focus of the representative's general question.

The opinion explicitly cleared the way for a state employee to be an independent candidate for county or municipal office, including in partisan elections, subject only to those narrow conditions.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Ark. Code Ann. § 21-1-207 establishes the general Arkansas rule: state, county, municipal, school-district, and political-subdivision employees cannot be deprived of the right to run for elective office unless federal law as it applies to employees requires that deprivation. The statute is candidate-protective and treats most political-activity rules as a federal preemption question.

The federal Hatch Act (5 U.S.C. §§ 1501 to 1508) is the principal federal source of restrictions. Its candidacy ban covers a state or local employee only when:

• The employee is "employed by the executive branch of a State, municipality, or other political subdivision of a State, or an agency or department thereof" (§ 1501(2)),
• The employee is "principal[ly] employ[ed] 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" (§ 1501(4)), and
• The employee's salary "is paid completely, directly or indirectly, by loans or grants made by the United States or a Federal Agency" (§ 1502(a)(3)).

Section 1503 limits the Hatch Act's candidacy restriction to partisan elections. Nonpartisan candidacies are not restricted by the Act.

The AG noted, but did not analyze in detail, Ark. Code Ann. § 20-79-212(a) and (b). That statute appears to prohibit those state employees who administer the Arkansas Rehabilitation Services from "participat[ing] in any political activity" other than voting and expressing opinions. It predates § 21-1-207 and reaches a small subset of state employees, so the AG read the representative's general question as not implicating that statute.

The opinion did not address other rules that may apply at the local-government level (such as personnel policies of a specific agency) or to specific candidates (such as the felony-conviction bar in § 7-6-102 for certain offices). The general answer, however, was clear: Arkansas law affirmatively protects the right to run, and the federal Hatch Act has narrow real-world reach.

Common questions

Does the Hatch Act apply to all state employees?

No. The candidacy ban applies only when all three statutory conditions are met, including that the employee's salary be paid completely from federal loans or grants. Few state employees meet that test.

What if my position is federally funded but my agency pays my salary out of a general fund?

Under § 1502(a)(3), the salary must be paid completely (directly or indirectly) by federal loans or grants. Partial federal funding of the agency does not trigger the candidacy ban unless your salary specifically traces to federal funds.

Does the Hatch Act restrict nonpartisan candidacies?

No. Section 1503 limits the candidacy restriction to partisan elections. A state employee covered by the Hatch Act candidacy ban can still run in nonpartisan elections.

What about Arkansas Rehabilitation Services employees?

The AG flagged § 20-79-212 as a narrow Arkansas-specific restriction on political activity for employees who administer ARS, but did not analyze it in detail because it covers a small subset of employees.

What about other federal laws or local agency policies?

The opinion identifies the Hatch Act as the only federal law it knows of that prohibits state or local employees from running for office. Local agency personnel policies are not addressed; individual employees should consult their employer's rules.

Citations

• Ark. Code Ann. § 21-1-207 (Supp. 2015) (right of public employees to run for office)
• Ark. Code Ann. § 20-79-212(a), (b) (Repl. 2014) (Arkansas Rehabilitation Services political-activity restriction)
• 5 U.S.C. §§ 1501 to 1508 (Hatch Act)
• 5 U.S.C. § 1501(2) (executive branch employment)
• 5 U.S.C. § 1501(4) (federally financed activity)
• 5 U.S.C. § 1502(a)(3) (salary paid completely by federal loans or grants)
• 5 U.S.C. § 1503 (partisan elections only)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2015-128
November 5, 2015
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable Kenneth B. Ferguson
State Representative
P. O. Box 5661
Pine Bluff, AR 71611-5661
Dear Representative Ferguson:
This is in response to your request for my opinion on the following question:

May a non-management state employee run as an independent candidate in partisan county or municipal elections?

RESPONSE

In my opinion, the answer to your question is generally "yes," subject to narrow exceptions noted herein.

DISCUSSION

Arkansas law generally affirms and protects the right of public employees to run for office:

No employee of the state, a county, a municipality, a school district, or other political subdivision of this state shall be deprived of his or her right to run as a candidate for an elective office..., unless as necessary to meet the requirements of federal law as pertains to employees.

Thus, state law generally protects public employees' right to run for office, subject only to federal restrictions.

(An Arkansas statute, enacted before the law quoted in the text, purports to prohibit those state employees who administer the Arkansas Rehabilitation Services from "participat[ing] in any political activity" other than voting and expressing opinions. Ark. Code Ann. § 20-79-212(a), (b) (Repl. 2014). Because this law reaches relatively few state employees and because your request appears to concern state employees in general, I do not consider this law further.)

The Hatch Act is the only federal law I know of that prohibits some state and local employees from running for office. It applies only to a state or local employee who:

(a) is employed by "the executive branch of a State, municipality, or other political subdivision of a State, or an agency or department thereof," and
(b) is "principal[ly] employ[ed] 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...."

Even if an employee is described by both (a) and (b) above, the prohibition on running for office applies only if the employee's salary "is paid completely, directly or indirectly, by loans or grants made by the United States or a Federal Agency...."

I expect that the salaries of relatively few state employees are paid completely from federal loans or grants.

Thus I conclude that, generally speaking, a state employee may be a candidate for county or municipal elective office.

(Your request refers to partisan elections. Nothing in state law treats public employees differently for this purpose depending on whether the election is partisan. The Hatch Act prohibition discussed above, however, applies only to partisan elections. See 5 U.S.C. § 1503.)

Sincerely,
Attorney General