Can the director and employees of the Arizona Game and Fish Department personally support or oppose a ballot measure or candidate, given that state law forbids them from 'using their office' to influence elections?

Plain-English summary

Arizona has a 1929-vintage statute that bars the director and employees of the Game and Fish Department from "tak[ing] active part in a political campaign" or "us[ing] his office to influence in any way an election or the results thereof." Director Ty Gray asked the AG how far that "use his office" rule reaches. Members of the public sometimes ask Department staff to weigh in on hunting-related ballot measures. Can a Game and Fish biologist, off-duty and out of uniform, sign a yes-on-X petition or donate to a campaign?

The AG's answer: yes, in a personal capacity, with sharp limits. "Use his office" prohibits more than spending public money or exercising official power. It also bans using the Department's authority, prestige, or imprimatur, including the uniform, the badge, and statements that imply the Department endorses a position. But the statute does not, and constitutionally cannot, reach purely private political activity. A Department employee can attend a rally in plain clothes, give a personal speech, donate, vote, and discuss issues in casual conversation, even if the issues touch wildlife policy.

The opinion also reconciles A.R.S. § 17-213 with the broader Little Hatch Act in A.R.S. § 41-752. The two statutes do not conflict. The director and certain senior employees are exempt from § 41-752(C) entirely. For everyone else, § 17-213 narrows what § 41-752(C) otherwise permits, and the two can be read in harmony.

What this means for you

If you work for the Arizona Game and Fish Department

The opinion gives you a workable test. Before doing anything political, ask: am I using my Department position to do this? If you would not be in this room (the legislative hearing, the rally, the radio interview) if you did not have your job, you are likely "using your office." If you would be there as a private citizen interested in wildlife policy regardless of your employment, and you are not signaling the Department's authority, you are probably fine.

Practical rules to follow:
- Do not wear the Department uniform, badge, or insignia at political events.
- Do not use a Department email address, phone, computer, or vehicle for campaign work.
- Do not say or imply that "the Department" thinks anything about a measure unless you are speaking officially as authorized.
- If you mention your job (a podcast, a personal newsletter, a public meeting), include a clear personal-capacity disclaimer such as "my views are my own and do not reflect the official position of the Arizona Game and Fish Department."
- The director and certain senior employees (anyone exempt under A.R.S. § 41-742(F)) cannot rely on § 41-752(C)'s expanded permissions. § 17-213 governs.

If you supervise Department staff

Treat campaign-season questions as compliance matters. Have a written policy that mirrors the AG's framework. Train people on what "color of office" means with concrete examples (uniform, badge, business card, official letterhead, official email). Document any disciplinary action through the lens of the two-prong "use of office" test the AG describes, not just generic ethics rules.

If you are running a campaign on a wildlife or conservation ballot measure

Do not solicit endorsements from Department employees as employees. They cannot give them in any way that suggests the Department's authority. You can have employees endorse as private citizens. Make sure their material clearly identifies them in their personal capacity. Avoid photos in uniform or at Department facilities.

If you are a journalist covering Arizona conservation politics

When a Game and Fish employee comments on a ballot measure, ask whether the comment is personal or official. Note whether they used their title, where the interview happened, and what they were wearing. Those details affect whether the comment is protected personal speech or potentially a § 17-213 violation.

If you work in HR or general counsel for any Arizona state agency

The opinion's reasoning about "color of office" extends beyond Game and Fish. Even agencies without an industry-specific statute like § 17-213 should apply the same general framework, drawing on A.R.S. § 41-752(B)(2) and the Little Hatch Act framework, when training employees on political activity rules.

Common questions

Q: Can a Game and Fish employee sign a candidate's nomination petition?
A: Yes, as a personal act not involving Department resources or imprimatur. § 41-752(C)(5) explicitly permits this. § 17-213 does not bar private signatures.

Q: Can the Director endorse a candidate at a campaign rally?
A: Not really. The Director is exempt from § 41-752(C)'s permissions and is the ultimate face of the Department. An endorsement by the Director, even at a private rally, is going to read as the Department's position. The opinion advises Department personnel not to convey the impression that the Department or other personnel take a position. For the Director that line is functionally hard to maintain.

Q: What about wearing a campaign t-shirt at a private barbecue?
A: Fine. That is not "use of office" under any reading of the statute.

Q: Can the Department issue a neutral analysis of a wildlife ballot measure?
A: Yes. The opinion specifically permits "purely educational" or impartial communications that do not advocate for a yes or no vote. The test is whether the communication is impartial and neutral: free of advocacy, free of misleading omissions or spin, free of partisan coloring.

Q: I work for Game and Fish and want to run for the school board. Can I?
A: § 41-752(C) does not let any covered employee be a candidate for paid public office. Whether the school board seat is "paid public office" depends on the district. Talk to HR before you file. If you are a senior employee exempt under § 41-742(F), § 17-213 still applies and would likely treat a campaign as "active part in a political campaign."

Q: What counts as "an active part in a political campaign"?
A: The opinion does not draw a precise line, but reads it as "managerial activities" within a campaign, parallel to § 41-752(C)'s prohibition on "management or affairs" of a campaign. Routine citizen-style activities (donating, signing petitions, advocating for the election or defeat of candidates) that § 41-752(C) permits do not amount to "active part" so long as they do not also use the office.

Q: Does any of this change if it's a federal election?
A: § 17-213 is Arizona law and applies regardless of whether the election is local, state, or federal. The federal Hatch Act adds further restrictions on certain federally-funded employees, which is a separate analysis.

Background and statutory framework

A.R.S. § 17-213 was passed in 1929 during the national civil-service-reform movement. Its language tracked President Theodore Roosevelt's 1907 executive order amending civil service rules to bar partisan management of campaigns. Ten years after Arizona's enactment, Congress passed the federal Hatch Act, restricting political activity by federal civilian employees. Arizona later adopted its own "Little Hatch Act," now A.R.S. § 41-752.

§ 17-213 contains two prohibitions: (1) Department personnel may not "take active part in a political campaign," and (2) Department personnel may not "use [their] office to influence in any way an election or the results thereof." A violation is grounds for dismissal.

§ 41-752 covers state employees more broadly. § 41-752(B) bars certain conduct (using political endorsements in personnel decisions, using official authority to influence votes). § 41-752(C) generally bars employees from holding party office or running for paid public office, while permitting a list of personal-capacity activities (expressing opinions, voting, donating, signing petitions, advocating election or defeat of candidates, soliciting contributions). § 41-752(E) exempts agency heads and senior staff from §§ 41-752(B) and (C).

When the two statutes overlap, the more specific § 17-213 controls (general/specific canon, City of Phoenix, 139 Ariz. at 178), but courts try to harmonize them. The AG's harmonization: a Department employee may engage in any of § 41-752(C)'s permitted activities so long as doing so does not "use his office."

The "use of office" inquiry borrows from analogous Arizona case law: police officer "color of office" cases (Mitchell, Jessi W.), bribery (Hendricks), and the Pennsylvania Supreme Court's interpretation of a parallel statute in McCrory v. City of Philadelphia (firefighter in uniform at polling place urging Democratic vote violated the prohibition). The opinion also draws on the U.S. Supreme Court's 2024 decision in Lindke v. Freed, which addressed when public officials' speech is official versus personal in the social-media context.

Citations and references

Statutes:
- A.R.S. § 17-213 (Game and Fish Department political activity)
- A.R.S. § 41-741(8) (definition of employee)
- A.R.S. § 41-742(F) (exempted employees)
- A.R.S. § 41-752(B), (C), (E) (Little Hatch Act)
- A.R.S. § 11-410
- A.R.S. § 16-402

Federal authority:
- U.S. Civ. Serv. Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548 (1973)
- Pickering v. Bd. of Educ., 391 U.S. 563 (1968)
- Lane v. Franks, 573 U.S. 228 (2014)
- Lindke v. Freed, 601 U.S. ___ (2024)
- President Theodore Roosevelt, Exec. Order No. 642 (1907)
- An Act to Prevent Pernicious Political Activities (Hatch Act), ch. 410, 53 Stat. 1147 (1939)

Arizona cases:
- State v. Dodd, 118 Ariz. 423 (App. 1978)
- Navajo Nation v. MacDonald, 180 Ariz. 539 (App. 1994)
- Fish v. Redeker, 2 Ariz. App. 602 (App. 1966)
- Kromko v. City of Tucson, 202 Ariz. 499 (App. 2002)
- Mitchell v. Dillard Dep't Stores, Inc., 197 Ariz. 209 (App. 2000)
- In re Jessi W., 214 Ariz. 334 (App. 2007)
- State v. Hendricks, 66 Ariz. 235 (1947)
- Patterson v. Maricopa Cnty. Sheriff's Off., 177 Ariz. 153 (App. 1993)
- Stambaugh v. Killian, 242 Ariz. 508 (2017)
- In re Riggins, 544 P.3d 64 (Ariz. 2024)
- State v. Bowsher, 225 Ariz. 586 (2010)
- Garcia v. Butler in & for Cnty. of Pima, 251 Ariz. 191 (2021)
- S.S. v. Stephanie H., 241 Ariz. 419 (App. 2017)
- Desert Waters, Inc. v. Super. Ct., 91 Ariz. 163 (1962)
- City of Phoenix v. Super. Ct., 139 Ariz. 175 (1984)
- Fernandez v. State Pers. Bd., 175 Ariz. 39 (App. 1992)

Out-of-state authority:
- McCrory v. City of Philadelphia, 27 A.2d 55 (Pa. 1942)
- State v. Schenkolewski, 693 A.2d 1173 (N.J. App. Div. 1997)
- Dean v. State, 71 S.E. 597 (Ga. Ct. App. 1911)
- State v. Worley, 102 So. 3d 435 (Ala. Crim. App. 2011)

Prior AG opinions:
- Ariz. Att'y Gen. Op. I83-069 (1983)
- Ariz. Att'y Gen. Op. I00-020 (2000)
- Ariz. Att'y Gen. Op. I07-008 (2007)
- Ariz. Att'y Gen. Op. I15-002 (2015)
- Ariz. Att'y Gen. Op. I21-008 (2021)

Source

• Landing page: https://www.azag.gov/opinions/i24-008-r21-013
• Original PDF: https://www.azag.gov/sites/default/files/2025-06/I24-008.pdf

Original opinion text

To:

Ty E. Gray

Director

Arizona Game and Fish Department

Questions Presented

Does the term "use his office" in A.R.S. § 17-213 permit the Director of the Game and Fish Department or a Department employee to express an opinion or take action to support or defeat a proposed ballot measure when such actions do not involve the use of public resources or the exercise of governmental power?

Do the limitations on Game and Fish Department personnel in A.R.S. § 17-213 conflict with the activities permitted for state personnel more generally under A.R.S. § 41-752(C)?

Summary Answers

A.R.S. § 17-213 prohibits the Director and any employee of the Arizona Game and Fish Department from "us[ing] his office to influence in any way an election or the results thereof." This phrase prohibits more than just direct uses of public resources and explicit exercises of governmental power; it also prohibits actions taken under the color of public office, such as conduct invoking the authority or imprimatur of the Department. Thus, the Director and Department employees can express opinions and participate in efforts to support or defeat a candidate or ballot measure if such actions do not involve the use of public resources, governmental power, or otherwise invoke the actual or implied authority of the Department.

No. A.R.S. § 17-213 specifically applies to the Director and employees of the Game and Fish Department, while A.R.S. § 41-752(C) applies more generally to state personnel. Because the more specific statute controls over the general, § 17-213 governs the conduct of Department personnel to the extent of any conflict with § 41-752(C), and any activities authorized under § 41-752(C) should be conducted in a manner consistent with § 17-213. Further, § 41-752(E) exempts the Director and certain personnel who report to the Director from the provisions of § 41-752(C), so these permissions do not apply to this subset of Department personnel in any event. As for those remaining Department employees who are subject to § 41-752(C), the activities permitted under that subsection can be harmonized with the prohibitions contained in § 17-213. For example, a Department employee may "[e]ngage in activities to advocate the election or defeat of any candidate," as § 41-752(C)(6) permits, so long as he does not "use his office" in doing so, as § 17-213 prohibits.

Background

Like many states and the federal government, Arizona law restricts state personnel from using their positions or public resources to influence elections. The legislature also has adopted a statute specifically regulating the election-related conduct of certain representatives of the Arizona Game and Fish Department. 1929 Ariz. Sess. Laws 243 § 8. Currently codified at A.R.S. § 17-213, the statute provides:

Neither the director nor any employee of the department shall take active part in a political campaign nor use his office to influence in any way an election or the results thereof. Failure to abide by the provisions of this section shall constitute grounds for dismissal of the director or any employee.

The statute contains two separate prohibitions. First, it prohibits the Director and Department employees from taking an "active part in a political campaign" ("Active Part Prohibition"). Second, it prohibits the Director and Department employees from using their offices "to influence in any way an election or the results thereof" ("Use of Office Prohibition").

The Arizona legislature first adopted A.R.S. § 17-213 in 1929, during a national civil service reform era that saw the enactment of legislation and administrative regulations aimed at prohibiting partisan political favoritism and excluding active party operators from serving in the unelected civil service. In fact, the original text of A.R.S. § 17-213 mirrored President Theodore Roosevelt's 1907 Executive Order 642, which amended the federal Civil Service Commission Rules to provide that classified service personnel, "while retaining the right to vote as they please and to express privately their opinions on all political subjects, shall take no active part in political management or in political campaigns." Exec. Order No. 642 (1907).

Ten years after the enactment of A.R.S. § 17-213, the federal Hatch Act codified President Roosevelt's 1907 Executive Order. See An Act to Prevent Pernicious Political Activities (Hatch Act), ch. 410, 53 Stat. 1147 (1939). Thereafter, Arizona, like other states, enacted a "Little Hatch Act," now codified in A.R.S. § 41-752.

In relevant part, A.R.S. § 41-752 states:

Except for expressing an opinion or pursuant to § 16-402, an employee shall not engage in any activities permitted by this section while on duty, while in uniform or at public expense.

An employee shall not:
- Use any political endorsement in connection with any appointment to a position in the state personnel system.
- Use or promise to use any official authority or influence for the purpose of influencing the vote or political action of any person or for any consideration.

An employee . . . shall not be a member of any national, state or local committee of a political party, an officer or chairperson of a committee of a partisan political club or a candidate for nomination or election to any paid public office, shall not hold any paid, elective public office or shall not take any part in the management or affairs of any political party or in the management of any partisan or nonpartisan campaign or recall effort, except that any employee may:
- Express an opinion.
- Attend meetings for the purpose of becoming informed concerning the candidates for public office and the political issues.
- Cast a vote and sign nomination or recall petitions.
- Make contributions to candidates, political parties or campaign committees contributing to candidates or advocating the election or defeat of candidates.
- Circulate candidate nomination petitions or recall petitions.
- Engage in activities to advocate the election or defeat of any candidate.
- Solicit or encourage contributions to be made directly to candidates or campaign committees contributing to candidates or advocating the election or defeat of candidates.

For purposes of A.R.S. § 41-752, "'[e]mployee' means all officers and employees of this state, whether in covered service or uncovered service, unless otherwise prescribed." A.R.S. § 41-741(8). Under § 41-752(E), however, certain employees are excluded from the provisions of subsections (B) and (C), including:

The state agency head and each deputy director, or equivalent, of each state agency and employees of the state agency who report directly to either the state agency head or deputy director.

Each assistant director, or equivalent, of each state agency and employees in the state agency who report directly to an assistant director.

A.R.S. § 41-742(F)(3)-(4).

The opinion request observes that members of the public sometimes ask Game and Fish Department personnel to opine in favor of, or against, certain ballot initiatives, and asks what limits A.R.S. § 17-213 places on "actions the Director and agency employees may take, and the opinions that they may express, during personal time and without the use of public resources." The opinion request also asks whether § 17-213's prohibitions conflict with the activities permitted under A.R.S. § 41-752.

Analysis

A.R.S. § 17-213 restricts the Director and Department employees from certain exercises of free speech and association involving political activities. How far those restrictions extend is a matter of statutory interpretation.

When interpreting a statute, courts "begin with the text." In re Riggins, 544 P.3d 64, --- ¶ 12 (Ariz. 2024). The statutory language is understood "in view of the entire text, considering the context and related statutes on the same subject." Id. If the text is "plain and unambiguous, it controls unless it results in an absurdity or a constitutional violation." Id. If the text is ambiguous, courts "consider secondary principles of statutory interpretation, such as the context of the statute, the language used, the subject matter, its historical background, its effects and consequences, and its spirit and purpose." Id. "A cardinal principle of statutory interpretation is to give meaning, if possible, to every word and provision so that no word or provision is rendered superfluous." Id.

When possible, statutes are construed "to avoid constitutional difficulties." Garcia v. Butler in & for Cnty. of Pima, 251 Ariz. 191, 194 ¶ 10 (2021). This approach is consistent with the principle that "[b]ecause the Attorney General has the duty to uphold and defend state laws, we will not opine that a statute is unconstitutional unless it is patently so." Ariz. Att'y Gen. Op. I83-069 (1983).

Department personnel may not use their affiliation with the Department to influence elections.

The Use of Office Prohibition in A.R.S. § 17-213 proscribes not only the direct use of public resources or governmental power to influence elections, but also the indirect use of the Department's prestige, authority, or imprimatur as conveyed, for example, by the Department uniform or insignia. Department personnel are not prohibited, however, from engaging in election-related advocacy in a personal capacity.

The plain meaning of A.R.S. § 17-213 suggests that the Use of Office Prohibition encompasses more than direct uses of public resources or exercises of governmental power.

The relevant statutory phrase in the Use of Office Prohibition is "use his office to influence in any way an election or the results thereof." Neither § 17-213 nor any other provision in Title 17 further defines the terms in that provision. We therefore look to the terms' plain meaning. See Stambaugh v. Killian, 242 Ariz. 508, 509 ¶ 7 (2017).

Black's Law Dictionary defines "office" to mean "[a] position of duty, trust, or authority, esp. one conferred by a governmental authority for a public purpose." Office, Black's Law Dictionary (11th ed. 2019). And, as it did at the time the statute was enacted, the Merriam-Webster dictionary similarly defines "office" to mean "a special duty, charge, or position conferred by an exercise of governmental authority and for a public purpose." Merriam–Webster Online Dictionary (last visited Apr. 2, 2024); Webster's 1913 Dictionary (last visited Apr. 2, 2024). "Use his office" therefore refers to the use of one's duty, trust, or authority as a holder of a governmental position.

"Influence," when used as a verb, means "to affect or alter by indirect or intangible means." Merriam–Webster Online Dictionary (last visited Apr. 2, 2024); see also Influence, Black's Law Dictionary (11th ed. 2019) (defining "influence" as "[u]se of pressure, authority, or power, usu. indirectly, to induce action or change the decisions or acts of another; one or more inducements intended to alter, sway, or affect the will of another, but falling short of coercion").

Arizona courts have taken a commonsense approach to what it means for an official to "use his office" to influence a certain outcome. In State v. Dodd, for example, the court of appeals approvingly cited a Colorado Supreme Court decision finding that a judge "use[d] his office" when he attempted to influence a defendant to waive his rights. 118 Ariz. 423, 424 (App. 1978). Likewise, when a Tribal Chairman "frequently met with the Tribal officials whose approval was needed" and "expressed his support for [a] deal," the court of appeals found he was using "his position, authority, and influence to induce" a certain outcome. Navajo Nation v. MacDonald, 180 Ariz. 539, 542 (App. 1994). Notably, both these cases determined that actions with a more indirect or intangible connection to the office, such as exerting pressure or expressing support, could still be a "use" of one's office. The courts did not cabin what it means to use a public office merely to concrete actions and more direct connections to the office, such as expending public resources.

This understanding is bolstered by § 17-213's language prohibiting the use of office to influence an election "in any way." This broad language indicates the legislature intended to prohibit any type of influence involving the use of office, including indirect means. See S.S. v. Stephanie H., 241 Ariz. 419, 423 ¶ 12 (App. 2017).

Arizona case law provides helpful examples on both sides of the "use of office" spectrum. On the one hand, a candidate violated an anti-electioneering statute when she appeared at a polling place and introduced herself to voters as they walked in and told them to "[r]emember" her name, because she thereby attempted "to persuade or influence eligible voters to vote for a particular candidate." Fish v. Redeker, 2 Ariz. App. 602, 604 (App. 1966). On the other hand, merely "educating the public on the issues," while not advocating for voters to vote a certain way, did not amount to influencing the outcome of an election. Kromko v. City of Tucson, 202 Ariz. 499, 502–503 ¶¶ 10–11 (App. 2002).

Arizona courts also have not strictly limited government liability to actions involving the use of government resources or the exercise of government power. Consider the government's liability for off-duty police officer conduct. Off-duty officers may be acting under color of their office, making the government liable for their actions, when, for example, they wear "official police uniforms," "prominently" display their badge, give authoritative commands, or handcuff and frisk suspected wrongdoers. Mitchell v. Dillard Dep't Stores, Inc., 197 Ariz. 209, 212 ¶ 15 (App. 2000); see also In re Jessi W., 214 Ariz. 334, 337–39 ¶¶ 17–24 (App. 2007). Likewise, an officer can be liable for soliciting a bribe even if the act intended to be influenced by the bribe was outside the officer's actual authority, "since the essence of the crime [of bribery] is the fact that he agreed to do it under color of office." State v. Hendricks, 66 Ariz. 235, 242 (1947).

Applying these principles to § 17-213, the fact that no government resources were used and no actual governmental power was exercised would not be dispositive. Arizona courts would likely also look to whether the Director or employee wore an official uniform, displayed a badge or insignia, or otherwise acted in a manner that suggested the use of official authority to encourage a certain election outcome.

Likewise, other jurisdictions have generally concluded that an official creating the understanding that one "could influence matters in connection with an official duty, whether or not he was capable of actually effecting such an act" constituted the use of an office. State v. Schenkolewski, 693 A.2d 1173, 1185 (N.J. App. Div. 1997); see also Dean v. State, 71 S.E. 597, 598 (Ga. Ct. App. 1911).

In McCrory v. City of Philadelphia, the Pennsylvania Supreme Court analyzed the meaning of a statute that, similarly to § 17-213, prohibited a city employee from "us[ing] his office to influence political movements." 27 A.2d 55, 56 (Pa. 1942). McCrory, a firefighter, went to a voting district in uniform, wearing a "political badge," and "urged" voters to "vote Democratic" while telling voters he had been "detailed" to the voting district for election day. Id. Because McCrory wore his firefighter's uniform and stated that he had been "detailed" to the voting district, the court found he gave off the impression that he was seeking a certain election result in his official capacity as a public officer, and thus violated the Pennsylvania statute. Id. at 56–57. An Arizona court would likely reach the same conclusion were it asked to apply § 17-213 to Department personnel.

Finally, whether activity influences an election is an objective question, and does not depend on the government employee's subjective intent. As this Office reasoned in a 2015 Opinion, deciding whether a government action is undertaken "for the purpose of influencing the outcomes of elections," requires "an objective test to determine" the action's "purpose" and "manner." Ariz. Att'y Gen. Op. I15-002 at 7 (2015); see A.R.S. § 11-410.

To make this determination, the objective test asks "(1) whether the [use of office] has the purpose of supporting or opposing the ballot measure [or candidate], and (2) whether the [use of office] involves dissemination of information in a manner that is not impartial or neutral." Ariz. Att'y Gen. Op. I15-002 at 7. Although the statute addressed in the 2015 Opinion differs from § 17-213 and prohibits the use of government resources rather than the use of office, we believe the same objective approach applies to Department personnel under § 17-213.

Taken together, the prohibition on "use of [the] office to . . . influence an election" suggests that Department personnel may not use their positions, including the duty, trust, and authority that come with those positions, to either support or oppose a candidate or ballot measure in any manner that is not impartial or neutral, including by indirect or intangible means.

B. The Use of Office Prohibition does not extend to purely personal political activity.

At the same time, § 17-213 does not prohibit Department personnel's purely personal political activity, for two reasons.

First, the plain text of the Use of Office Prohibition extends only to the use of office, not to any political activity that personnel might undertake in their personal lives. See A.R.S. § 17-213.

Second, Department personnel have free speech rights. See, e.g., Letter Carriers, 413 U.S. at 564. This includes "speech by public employees on subject matter related to their employment." Lane v. Franks, 573 U.S. 228, 240 (2014). Because interpreting § 17-213 to extend to personal activity of Department personnel could implicate Department personnel's constitutional free speech rights, such a reading should be avoided. See Patterson v. Maricopa Cnty. Sheriff's Off., 177 Ariz. 153, 159 (App. 1993); Ariz. Att'y Gen. Op. I83-069 (1983); see also Pickering v. Bd. of Educ., 391 U.S. 563, 564 (1968) (holding that disciplining government employee for submitting a letter to a local newspaper violated his free speech rights).

This understanding of the Use of Office Prohibition is also informed by similar language used in § 41-752(B)(2). Stambaugh, 242 Ariz. at 509 ¶ 7. The "Use of Office" provision prohibits use of one's office "to influence in any way the election or the results thereof," while § 41-752(B) proscribes state employees from using or promising to use "any official authority or influence for the purpose of influencing the vote or political action of any person or for any consideration." As this office has previously observed, § 41-752(B) prohibits only "improper solicitation, such as soliciting a political contribution while using or promising to use 'any official authority or influence for the purpose of influencing the vote or political action of any person or for any consideration.'" Ariz. Att'y. Gen. Op. I21-008 at 4 n.2 (2021).

The similarity between § 41-752(B)(2)'s "narrowly tailored" limit on political activity and the Use of Office Prohibition helps to confirm that § 17-213 is likewise directed toward improper influence using the authority of the Department rather than personal political activity. Thus, § 17-213 limits improper use of office, but does not require Department personnel to conceal their job titles or avoid speaking on matters related to their work at the Department. Cf. Lindke v. Freed, No. 22-611, 601 U.S. --- slip op. at 7–15 (Mar. 15, 2024).

C. This interpretation is consistent with prior Attorney General opinions.

This Office has previously analyzed certain Arizona statutes prohibiting "the use of public resources" and concluded that elected officials may use their titles when communicating their views on pending ballot measures. See Ariz. Att'y. Gen. Op. I07-008 at 2 (2007); Ariz. Att'y Gen. Op. I15-002 at 5 (2015).

However, these prior opinions considered whether an official's title was a "public resource," not whether it was a use of his "office" more generally. Public resources include only "thing[s] of value" like money, credit, facilities, postage, or the like. Ariz. Att'y Gen. Op. I15-002 at 7. As outlined above, "office" encompasses more than such tangible items.

Further, these opinions addressed the conduct of elected officials rather than that of appointed officials or employees like those at the Game and Fish Department. Elected officials' use of office raises distinct questions because elected officials engage in their own reelection campaigns and their official roles as elected officials cannot readily be separated from their persons. See Ariz. Att'y. Gen. Op. I07-008 at 3; Ariz. Att'y Gen. Op. I15-002 at 7–8; see also State v. Worley, 102 So. 3d 435, 446 & n.6 (Ala. Crim. App. 2011).

The question presented here is thus different than those addressed in prior opinions: § 17-213 prohibits not only the use of public resources but also the use of the office of the Department, and it applies to both unelected officials and employees.

D. Whether the Director or a Department employee improperly uses his office to influence an election requires case-by-case analysis, but guideposts exist.

Taking all of the above authority together, the Director and Department employees may express opinions or take actions in support of or opposition to a ballot measure or candidate if they do not use public resources or governmental power and do not use the authority or imprimatur of the Department in support of their advocacy. Thus, if Department personnel wish to engage in election-related activities, they should clarify that any such activity is undertaken in a personal, rather than official capacity, and should not by act or implication suggest that the Department's authority is meant to sway any election's result. Wearing a uniform, bearing the insignia of the office, or invoking the official authority of the Department in an effort to sway opinion could amount to a use of the authority of the office, and thus should be avoided.

For example, suppose a Department employee attends a rally to oppose a pending ballot measure. She wears plain clothes and does not display any Department badge or insignia. She then goes to the podium, introduces herself, and delivers a speech explaining why she thinks the ballot measure is misguided. But, in giving her speech, she never mentions anything about the Department or her affiliation with it. Assuming the employee was off-duty and did not expend any government resources, such behavior would comply with § 17-213, because the employee in no way invokes the authority or imprimatur of the Department in advocating for a political outcome.

On the other end of the spectrum, suppose the employee attends the rally, but this time she wears her Department uniform and badge. In her speech at the podium, she makes statements like, "All of us at the Department are furious about this ballot measure," and "If this measure gets passed, the Department will go to extremes to avoid enforcing it," and "My boss told me to come here so I could tell all of you what the Department really thinks about this measure." Under those circumstances, even if the employee was off-duty and did not use any government resources, she would likely violate § 17-213.

Whether conduct lying somewhere between these two poles could violate the Use of Office Prohibition would "necessarily involve a fact-specific, case-by-case evaluation." Ariz. Att'y Gen. Op. I15-002 at 6. But Department personnel can help ensure any political opinion is not construed as using their office to influence an election by stating a disclaimer such as "my views are my own and do not reflect the official position of the Arizona Game and Fish Department." Cf. Lindke, slip op. at 13.

The opinion request refers to members of the public asking Department personnel "to express an opinion either in favor or against [a] ballot initiative" regarding wildlife statutes. The above analysis applies to those circumstances. But the Use of Office Prohibition does not preclude communicating with the public to provide information that does not support or oppose a ballot measure and is impartial and neutral. See Ariz. Att'y Gen. Op. I15-002 at 6–7. A communication is impartial and neutral when it is "(1) free of advocacy; (2) free of misleading tendencies, including amplification, omission, or fallacy; and (3) free of partisan coloring." Id. at 7. Thus, the Department could issue a neutral analysis of the anticipated effects of a ballot measure on wildlife if it met this test. Id. at 8.

II. A.R.S. § 17-213 and § 41-752 do not conflict.

The opinion request also asks whether the restrictions on Department employees and the Director contained in A.R.S. § 17-213 conflict with A.R.S. § 41-752(C), which permits state personnel to engage in certain political activities. The short answer is no, but for different reasons for two different categories of personnel.

To start, the permissible activities listed in § 41-752(C) expressly do not apply to the Director and a particular subset of Department employees. Section 41-752(E) makes clear that "[s]ubsections B and C of this section do not apply to those employees listed in § 41-742, subsection F." One of the categories of employees listed in § 41-742(F) is "[t]he state agency head and each deputy director, or equivalent, of each state agency and employees of the state agency who report directly to either the state agency head or deputy director." A.R.S. § 41-742(F)(3). Another category is "[e]ach assistant director, or equivalent, of each state agency and employees in the state agency who report directly to an assistant director." Id. § 41-742(F)(4). Thus, because the Director and any other Department employee listed in § 41-742(F) are exempted from the list of permissible activities in § 41-752(C), as to that category of personnel, there is no possible conflict with the prohibited activities in § 17-213 based on the plain text of the statutory scheme. As to this category of personnel, § 17-213 governs, not § 41-752(C).

Next, as to the category of Department personnel not excluded by § 41-742(E) and (F), the question is how to read A.R.S. § 17-213 and § 41-752(C) together when § 41-752(C) allows "[a]n employee, a member of the state personnel board or a member of the law enforcement merit system council" to engage in a list of permissible activities, and at the same time, § 17-213 prohibits Game and Fish Department personnel from engaging in certain activities listed in that statute. Two principles are relevant to answering that question.

First, as a general matter, a more specific statute "will usually control over those that are general." City of Phoenix v. Super. Ct. in & for Maricopa Cnty., 139 Ariz. 175, 178 (1984). Here, A.R.S. § 17-213 is the more specific statute because it specifically applies to the Director and employees of the Game and Fish Department, while A.R.S. § 41-752(C) is the more general statute because it applies broadly to state personnel. And second, "[w]hen construing two statutes, [courts] will read them in such a way as to harmonize and give effect to all of the provisions involved." See State v. Bowsher, 225 Ariz. 586, 589 ¶ 14 (2010).

With these principles in mind, the more specific prohibitions in A.R.S. § 17-213 can easily be read in harmony with the more generally applicable permissible activities in § 41-752(C).

For example, a Department employee may "[e]ngage in activities to advocate the election or defeat of any candidate," as § 41-752(C)(6) permits, so long as he does not "use his office" in doing so, as § 17-213 prohibits. Similarly, a Department employee may "[s]olicit or encourage contributions to be made directly to candidates or campaign committees," as § 41-752(C)(7) permits, so long as he does not "use his office" in doing so, as § 17-213 prohibits. This construction is consistent with the principle that statutes should be harmonized when possible, and it gives effect to as much of the law as possible because "the special statute will control" only to the extent that "the provisions of [that] special statute are inconsistent with those of a general statute on the same subject." Desert Waters, Inc. v. Super. Ct. in & for Pima Cnty., 91 Ariz. 163, 171 (1962).

As noted in the Background section, § 17-213 also contains an "Active Part Prohibition" forbidding Department personnel from taking "an active part in a political campaign." For similar reasons, this part of § 17-213 likewise does not conflict with § 41-752(C) because a Department employee may engage in each of the activities permitted in § 41-752(C) without necessarily taking an "active part" in a political campaign. The activities permitted under § 41-752(C) are those normally practiced by interested citizens who lack any true authority within a political campaign; as such, they are clear exceptions to that statute's general prohibition on taking "any part in the management or affairs" of a political campaign. The Active Part Prohibition can be read similarly to § 41-752(C)'s prohibition of managerial activities: Department employees may freely engage in the political activities exempted under § 41-752(C)(1)-(7), so long as they do not use their office or public resources in so doing. However, any activities involving the "management or affairs" of a political campaign—activities implicating decision-making authority—would also run afoul of the Active Part Prohibition. Thus, the list of permitted activities in § 41-752(C) and the Active Part Prohibition do not conflict.

Conclusion

The phrase "use his office" in A.R.S. § 17-213 refers to more than direct uses of public resources and governmental power. The Director and Department employees can express opinions and take certain actions to support or defeat a ballot measure in their personal capacity only; i.e., if such actions do not directly or indirectly use public resources or governmental power, including their titles, insignia, uniform, or express or implied authority. The Director or employees can express personal views on pending ballot measures, but should be careful to speak only in their individual capacities and avoid conveying the impression that the Department or other Department personnel take a position. And finally, there is no conflict between A.R.S. § 17-213 and § 41-752.

Kris Mayes

Attorney General