Can a county prohibit its employees from donating to candidates running for any county office?

Plain-English summary

Pima County had a long-standing personnel policy (Board of Supervisors Policy No. D 23.9, dating to 1992) that prohibited county employees from making political contributions to any candidate for any elected county office. State Senator Vince Leach asked the Attorney General whether that policy violated employees' state or federal constitutional rights. AG Mark Brnovich said yes, on both fronts.

First Amendment. Political contributions are core protected speech (Buckley v. Valeo; McCutcheon v. FEC). Public employers have broader powers than the state-as-sovereign, but they can't regulate speech without doing the work. Under United States v. NTEU, 513 U.S. 454 (1995), an ex ante speech restriction on public employees requires the government to "demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way."

Pima County failed both prongs:

1. No real harms. When the Board of Supervisors adopted the ban in 1992, the supervisor who moved its passage said it was "not to correct a scandalous behavior of the past" but to "create a healthier environment while focusing on ethics." That admission killed the "real, not conjectural" prong.

2. Other less restrictive measures already address the concerns. A.R.S. § 11-410(D) bars county employees from using their positions to influence subordinates' votes. A.R.S. § 16-912(A)(1) caps individual contributions to county candidates at (then) $6,250. Pima County's other personnel rules already prohibit using positions for personal advantage and accepting things of value to influence official conduct. Adding a flat contribution ban does not "directly and materially" address corruption beyond what those measures already do. The opinion borrows heavily from Lodge No. 5 of Fraternal Order of Police v. City of Philadelphia, 763 F.3d 358 (3d Cir. 2014), where the Third Circuit struck down a similar police-department contribution ban.

Arizona Constitution Article II, § 6. Brush & Nib Studio v. City of Phoenix, 247 Ariz. 269 (2019), holds that Arizona's free-speech clause is broader than the First Amendment. A First Amendment violation "necessarily implies" a violation of Article II, § 6. The opinion goes further, looking to Oregon State Police Officers Ass'n (Or. 1989) and United Auto Workers v. Philomena (Ohio Ct. App. 1998) for parallel state-constitutional rulings invalidating broader speech restrictions on public employees.

The opinion answered only Pima County's contribution ban, not its solicitation ban (which prohibits employees from soliciting or collecting contributions). The solicitation prong was outside the question presented.

Currency note

This opinion was issued in 2020. 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.

Historical context: what the opinion meant in 2020

For Pima County employees

The opinion gave a clear basis for any employee disciplined under the policy to challenge the discipline. The county would need either to repeal the policy or face a constitutional lawsuit it would be unlikely to win.

For other Arizona counties with similar policies

The opinion was an early warning. Any other county with a blanket employee-contribution ban tied to county office candidates faced the same constitutional vulnerability. The opinion's reasoning was generic enough to apply broadly.

For the Pima County Board of Supervisors

The board had two practical options: repeal the ban or rewrite it. The opinion suggested that a much more narrow restriction (say, supervisors barred from contributing to their own subordinates' campaigns, or contributions tied to specific evidence of patronage) might survive scrutiny. A blanket ban would not.

For First Amendment attorneys

The opinion is a careful application of NTEU in the public-employee speech context. It offers a reusable analytical structure: identify the asserted government interests, ask whether the harms are real and not conjectural, and then ask whether less restrictive alternatives exist. The Lodge No. 5 case is the centerpiece authority.

Common questions

Q: Does this opinion mean public employees can give unlimited political contributions?
A: No. State law caps individual contributions to county candidates (A.R.S. § 16-912(A)(1)). State law also bars employees from using their positions to influence subordinates' votes (A.R.S. § 11-410(D)). Federal Hatch Act restrictions apply to certain federal employees and federally funded state employees. The opinion only invalidates blanket county-imposed bans on contributions to county candidates.

Q: What are the four governmental interests typically cited to justify limiting public employee political activity?
A: From Letter Carriers and Patterson v. Maricopa County Sheriff's Office: (1) enforcing the law without political bias; (2) avoiding the appearance of "political justice"; (3) preventing the government workforce from being a political machine; (4) freeing employees from pressure to vote a certain way or do political chores for advancement.

Q: Why didn't those interests save the Pima County policy?
A: Because the County itself had said in 1992 that it wasn't trying to fix scandalous behavior. The asserted goal was a "healthier environment" focused on "ethics." Under NTEU, that's conjectural. Real harms require evidence.

Q: What's the difference between Pima's ban and the Hatch Act?
A: The Hatch Act, upheld in Letter Carriers, was a federal-level restriction with a long record of corruption it was designed to address, and it applied to federal civil servants. The Third Circuit in Lodge No. 5 distinguished local restrictions adopted without that record of harm. Pima County's ban fell on the wrong side of that line.

Q: Does Arizona's free-speech provision really go further than the First Amendment?
A: Yes, per Brush & Nib Studio v. City of Phoenix, 247 Ariz. 269 (2019). The First Amendment is phrased as a constraint on government; Article II, § 6 is phrased as a guarantee of an individual right to "freely speak, write, and publish." The Arizona Supreme Court has read it as broader.

Q: What about the Solicitation Ban (prohibiting employees from soliciting contributions for county candidates)?
A: The opinion expressly does not address it. Senator Leach's question was only about the Contribution Ban. The Solicitation Ban remained in effect after this opinion. Whether it would survive a similar analysis would depend on whether the County could establish real harms specifically tied to solicitation.

Q: Can elected county officials still contribute?
A: Yes. The policy specifically said "Nothing in this section shall prohibit Elected County officials from making contributions to political campaigns." So the ban hit county employees but not elected officials. That asymmetry is notable but the opinion does not turn on it.

Background and statutory framework

The constitutional and statutory framework:

• First Amendment: protects political contributions as core political speech.
• Pickering v. Board of Education (1968): when public employers regulate employee speech on matters of public concern, courts balance the employee's interest in speaking against the government's interest in efficient operations.
• United States v. NTEU (1995): when the regulation "chills speech before it occurs," the government must show real (not conjectural) harms and direct alleviation.
• Brush & Nib Studio v. City of Phoenix (2019): Arizona Article II, § 6 protects speech more broadly than the First Amendment.

Pima County's authority to set personnel rules:

• A.R.S. § 11-352(A) authorizes a county merit system.
• A.R.S. § 11-410(G) "broadly protects" employees' civil and political liberties.

Arizona's existing anti-corruption tools (which the AG cites as making the contribution ban redundant):

• A.R.S. § 11-410(D): no using position to influence subordinate's vote or political activity.
• A.R.S. § 16-912(A)(1): individual contribution cap to county candidates.
• A.R.S. § 16-931(A)(2): biennial adjustment of contribution limits.
• A.R.S. § 38-503: conflict-of-interest recusal.
• Pima County Personnel Policy No. 8-119(Z): ban on holding financial/personal interests that conflict with county interests, on using position for financial gain or personal advantage, on accepting things of economic value to influence official conduct.

The opinion follows the Third Circuit's analysis in Lodge No. 5 closely. Lodge No. 5 struck down a Philadelphia ban on police contributions to their union's PAC, applying Pickering and NTEU. The Third Circuit reasoned that contribution bans "constitute a substantial burden" on First Amendment rights and require "narrow specificity" to survive. The opinion adopts the reasoning and applies it to Pima County's broader (across-the-board) ban.

The opinion also leans on parallel state-constitutional decisions:
- Oregon State Police Officers Ass'n (Or. 1989): struck down state law barring police officers from "in any way be[ing] active or participat[ing] in any political contest."
- Philomena (Ohio Ct. App. 1998): struck down state law banning public employers from administering political-contribution payroll deductions.

Citations and references

Constitutional provisions:
- U.S. Const. amend. I (free speech)
- Ariz. Const. art. II, § 6 (free speech, broader than First Amendment per Brush & Nib)

Statutes:
- A.R.S. § 11-352(A) (county merit system)
- A.R.S. § 11-410(D), (G) (limits on subordinate influence; civil/political liberties protection)
- A.R.S. § 16-912(A)(1) (county candidate contribution caps)
- A.R.S. § 38-503 (conflict-of-interest recusal)
- 5 U.S.C. § 7324(a)(2) (Hatch Act)

Cases:
- Buckley v. Valeo, 424 U.S. 1 (1976), political contributions are core First Amendment speech
- McCutcheon v. FEC, 572 U.S. 185 (2014), right to participate in elections via contribution
- Pickering v. Board of Education, 391 U.S. 563 (1968), balance test for public employee speech
- United States v. NTEU, 513 U.S. 454 (1995), ex ante speech restrictions require real, not conjectural, harm
- U.S. Civil Service Comm'n v. Letter Carriers, 413 U.S. 548 (1973), Hatch Act upheld for federal civil servants
- Lodge No. 5 v. City of Philadelphia, 763 F.3d 358 (3d Cir. 2014), police contribution ban struck down under NTEU
- Brush & Nib Studio v. City of Phoenix, 247 Ariz. 269 (2019), Article II, § 6 broader than First Amendment

Source

• Landing page: https://www.azag.gov/opinions/i20-012-r20-014
• Original PDF: https://www.azag.gov/sites/default/files/2025-06/I20-012.pdf

Original opinion text

To:

Vince Leach, Senator

Arizona State Senate

Question Presented

Pima County has an employment policy that prohibits County employees from "mak[ing] a political contribution" for "any candidates for any elected County office." See Pima County Board of Supervisors' Policy No. D 23.9 and Pima County Personnel Policy 8-119(Z)(9).

Does this policy violate County employees' state or federal constitutional rights?

Summary Answer

Yes, Pima County's employment policy prohibiting County employees from making political contributions for any candidates for any elected County office violates employees' constitutional rights guaranteed under the First Amendment to the U.S. Constitution and article II, § 6 of the Arizona Constitution.

Background

Arizona law permits the Pima County Board of Supervisors ("Board") to "adopt a limited county employee merit system" that "may be applied to county-appointed officers and employees." A.R.S. § 11-352(A); see also A.R.S. § 11-351(1). Elected county officials are exempted from the system. See A.R.S. § 11-352(A).

The Board adopted the Pima County Employee Merit System in 1975 by Pima County Ordinance No. 1975-36. In March 1992, the Board discussed the political-contribution employment policy at issue here and voted 3-2 to adopt the policy. See Pima County Board of Supervisors' Meeting Minutes (March 17, 1992). The employment policy states as follows:

Employees have the right to participate in partisan political activities but those activities cannot influence or interfere with the conduct of official County business or activities. Notwithstanding this provision, County employees shall not a) make a political contribution and/or b) solicit or collect political contributions for any candidates for any elected County office. Nothing in this section shall prohibit Elected County officials from making contributions to political campaigns.

Pima County Board of Supervisors Policy No. D 23.9.

Thus, Pima County prohibits its employees from making political contributions for any candidates for any elected County office ("Contribution Ban") and prohibits employees from soliciting or collecting political contributions for any candidates for any elected County office ("Solicitation Ban"). Your question relates only to the Contribution Ban, which is the subject of this opinion.

Analysis

Arizona law broadly protects "the civil and political liberties of any [county] employee as guaranteed by the United States and Arizona Constitutions." A.R.S. § 11-410(G). The constitutionality of a policy that prohibits county employees from making political contributions for any candidate for any elected county office presents an issue of first impression in Arizona. Nonetheless, Pima County's Contribution Ban is invalid under the First Amendment to the U.S. Constitution as well as under article II, § 6 of the Arizona Constitution.

A. The Contribution Ban Violates County Employees' First Amendment Rights

The Contribution Ban violates county employees' right to freedom of speech under the First Amendment to the U.S. Constitution. "The right to make political campaign contributions is at the core of political speech and is protected by the First Amendment." Ariz. Att'y Gen. Op. No. I88-063, 1988 WL 249652 (June 9, 1988) (citing Buckley v. Valeo, 424 U.S. 1, 15-19 (1976)); see also McCutcheon v. Fed. Election Comm'n, 572 U.S. 185, 191 (2014).

First Amendment rights are not absolute, however. When the government restricts the speech of its employees, "the government as employer indeed has far broader powers than does the government as sovereign." Waters v. Churchill, 511 U.S. 661, 671 (1994). Nonetheless, the Supreme Court "has made clear that public employees do not surrender all their First Amendment rights by reason of their employment." Garcetti v. Ceballos, 547 U.S. 410, 417 (2006).

The Arizona Court of Appeals has recognized, consistent with Supreme Court precedent, that limitations on employees' political activities serve four governmental interests:

(1) They enable government employees to enforce the law and execute government programs without bias or favoritism for or against any political party or group; (2) They instill public confidence in government by avoidance of even the appearance of 'political justice'; (3) They prevent the government work force from being employed to build a political machine; and (4) They prevent political performance from being a factor in the employment and advancement of government employees and free public employees from pressure to vote in a certain way or perform political chores to curry favor. United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, AFL-CIO, 413 U.S. 548, 564-66 (1973).

Patterson v. Maricopa Cnty. Sheriff's Off., 177 Ariz. 153, 157-58 (App. 1993).

As relevant here, the Third Circuit Court of Appeals has held that a contribution ban imposed on police department employees, which "aim[ed] to insulate the police from political influence" and prohibited employees from contributing to their union's political action committee, violated the First Amendment. See Lodge No. 5 of Fraternal Order of Police ex rel. McNesby v. City of Philadelphia, 763 F.3d 358, 361-62, 376 (3d Cir. 2014). In so holding, the Third Circuit applied the framework of Pickering v. Board of Education, 391 U.S. 563 (1968). The Third Circuit reasoned that a ban on political contributions "constitutes a substantial burden" on First Amendment rights. Id. at 367.

The Third Circuit observed that the United States Supreme Court "clarified how courts should apply Pickering when a restriction operated as an ex ante prohibition on speech" in United States v. NTEU, 513 U.S. 454, 467 (1995). When a ban "chill[s] speech before it occur[s]," the government "must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." NTEU, 513 U.S. at 475.

Here, the Board expressly noted the lack of "any evidence of specific wrong doing on the part of [c]ounty employees" in 1992 when it debated whether to impose the Contribution Ban. The Supervisor who moved to approve the Contribution Ban explained that the purpose of the ban was "not to correct a scandalous behavior of the past," but to "create a healthier environment while focus[]ing on ethics." Pima County therefore cannot establish the first prong of the NTEU test, i.e., that the government's "recited harms are real, not merely conjectural."

The Contribution Ban especially does not satisfy the second prong (that the regulation will alleviate the alleged harms) in light of other, less obtrusive Arizona laws and Pima County policies that are designed to prevent corruption, protect county employees from improper influences, and maintain a politically-neutral office. State law prohibits county employees from "us[ing] the authority of their positions to influence the vote or political activities of any subordinate employee." A.R.S. § 11-410(D).

State law also places limits on individual contributions to candidates for county elected office. See A.R.S. § 16-912(A)(1) (setting a $6,250 limit on individual contributions to a candidate for county office). And Pima County's other personnel policies prohibit county employees from holding financial or personal interests that could negatively impact the interest of the County, "[using] or attempt[ing] to use their official positions … for financial gain or for personal advantage[,]" or accepting or soliciting "anything of economic value" designed to influence the employee's official conduct.

Accordingly, the Contribution Ban will not alleviate those asserted harms "in a direct and material way." Pima County cannot justify its Contribution Ban in the current climate of other, less restrictive regulations applicable to its employees at the state and county level that also serve to alleviate its concerns. This is especially true "in the Internet age, [where] disclosure of the identities of campaign donors provide[s] robust protections against corruption."

Ultimately, Pickering interests do not balance in Pima County's favor. The Contribution Ban is a "substantial burden" on county employees' First Amendment rights, yet it is not drawn with sufficient "narrow specificity" to justify its imposition in light of other, more appropriate safeguards of the county's interests. Therefore, Pima County's Contribution Ban cannot pass constitutional muster under the First Amendment.

B. The Contribution Ban Violates County Employees' Right to "Freely Speak" Under Article II, § 6 of the Arizona Constitution

The above First Amendment analysis is sufficient to demonstrate that Pima County's Contribution Ban likewise violates the Arizona Constitution's even more stringent safeguards of the right to "freely speak." Ariz. Const. art. II, § 6. "[W]hereas the First Amendment is phrased as a constraint on government … our state's provision, by contrast, is a guarantee of the individual right to 'freely speak, write, and publish,' subject only to constraint for the abuse of that right." Brush & Nib Studio, LC v. City of Phoenix, 247 Ariz. 269, 281, ¶ 45 (2019). "Thus, by its terms, the Arizona Constitution provides broader protections for free speech than the First Amendment." "[A] violation of First Amendment principles 'necessarily implies' a violation of the broader protections of article 2, section 6 of the Arizona Constitution[.]" Id. at 282, ¶ 47.

As noted above, the validity of the Contribution Ban presents an issue of first impression in Arizona, but aspects of this issue have been addressed by Arizona courts. The ban prohibits county employees from even beginning to speak through political contributions, and the Arizona Supreme Court has ruled against prior restraint under article II, § 6, even where the right to freely speak was in "direct confrontation with the equally important constitutional right to a fair trial by an impartial jury." Phoenix Newspapers Inc. v. Jennings, 107 Ariz. 557, 559 (1971). Additionally, where a government justifies a regulation that burdens the right to freely speak based on the regulation's purpose in protecting against secondary effects, the Arizona Supreme Court has established a balancing test that examines, in part, whether "the government's substantial interest would be less effectively achieved without the regulation and ample alternative means of communication exist." State v. Stummer, 219 Ariz. 137, 145, ¶ 30 (2008). As set out above, there are many other state laws and county policies that may prevent such negative effects as political corruption and patronage without creating such a great burden upon employees' rights.

The Arizona Supreme Court's recent decision in Brush & Nib makes clear that, once a First Amendment violation exists, no further analysis is required to conclude that Pima County's Contribution Ban violates the Arizona Constitution. See 247 Ariz. at 282, ¶ 47. Nonetheless, it is instructive to conduct a separate state-constitutional analysis and examine how similarly situated states have viewed such a ban.

In Oregon State Police Officers Ass'n, Inc. v. State, the issue was whether a state law that proscribed state police officers from "in any way be[ing] active or participat[ing] in any political contest of any general or special election, except to cast the ballot" violated the state's constitutional provision protecting free speech. 783 P.2d 7, 9-10 (Or. 1989). The Oregon Supreme Court held that the statute was an impermissible limitation on the state police officers' free speech rights.

In United Auto Workers, Local Union 1112 v. Philomena, the issue was whether a state statute that only prohibited public employers from administering political contribution payroll deductions for their employees violated the Ohio Constitution's free speech protections. 700 N.E.2d 936, 947 (Ohio Ct. App. 1998). The Ohio Court of Appeals held that the Ohio statute violated the state constitution's free speech protections because the statute infringed on the free speech rights of public employees and the government did not meet its burden of establishing that the prohibition in the statute was necessary to further compelling state interests or will "directly and materially" prevent harm to those interests.

For similar reasons that the state statutes were struck down in Oregon and Ohio, Pima County's Contribution Ban here is unconstitutional under the Arizona Constitution because the restriction on county employees' free speech rights is not justified by the County's interests. Examination of the potential justifications for the Contribution Ban reveals that the ban unduly burdens speech.

As described above, the County's asserted interest in promoting an ethical work environment, as well as any theoretical interests, are already protected by numerous other measures at the state and county level without requiring an outright ban on political contributions. These include direct prohibitions on county employees "us[ing] the authority of their positions to influence the vote or political activities of any subordinate employee" and a statutory limit on individual contributions to candidates for county elected office. A.R.S. §§ 11-410(D), 16-912(A)(1). The small limit on individual contributions means that no one individual is likely to earn patronage or other special reward for donating to a particular candidate given the high financial cost of modern political campaigns. Therefore, the inclusion of a complete ban on contributions does little to further address the County's concerns but much to burden its employees' constitutional right to freely speak.

Accordingly, the Contribution Ban cannot stand under article II, § 6 of the Arizona Constitution.

Conclusion

Pima County's blanket ban on political contributions for candidates for any elected county officials is inconsistent with First Amendment principles, Arizona law, and the text of the Arizona Constitution.

Mark Brnovich

Attorney General