Does a Tennessee deputy sheriff have to resign before running for the county commission, or can the deputy keep the badge while campaigning?

Plain-English summary

District Attorney General Greeley Wells asked whether a county-employed deputy sheriff had to resign in order to run for the county commission. The AG said there was no blanket rule that forced resignation. Two separate conditional rules applied, and the deputy's circumstances determined which (if any) controlled.

The first rule was the federal Hatch Act, 5 U.S.C. §§ 1501 et seq. A previous AG opinion (81-305) had read the Hatch Act to bar a state or local employee whose position was funded in whole or in part by federal funds from running for partisan elective office. If a particular deputy sheriff's position or duties were tied to federally financed activity, and the county commission race was a partisan election, the Hatch Act required the deputy to resign before running.

The second rule applied in counties that had adopted the County Sheriff's Civil Service Law of 1974. Tenn. Code Ann. § 8-8-419 barred any employee in the classified service of the sheriff's department from making a "public endorsement of any candidate in any campaign for elected office." The AG, citing its earlier opinion 09-167 about deputies running for sheriff, said that publicly announcing one's own candidacy was itself an endorsement of that candidate, namely oneself. So in a 1974-Act county, the deputy had to resign before announcing the campaign. Violation of § 8-8-419 triggered dismissal under § 8-8-419(c).

The classified service under § 8-8-403 swept in every employee of the sheriff's department except the sheriff, the sheriff's personal secretary, the cook for the jail facility, and (in some counties) the chief deputy sheriff. Deputies were squarely covered.

Currency note

This opinion was issued in 2010. 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

Tennessee deputy sheriffs operate inside a layered regulatory structure for political activity. At the federal level, the Hatch Political Activity Act covered state and local employees whose principal employment was tied to activity financed in whole or in part by federal loans or grants. The classic restriction prohibited partisan candidacy. Congress amended the Hatch Act over the years to narrow the restrictions, but the AG opinion relied on the framework as the AG had read it in 1981.

At the state level, Tennessee enacted the County Sheriff's Civil Service Law of 1974 (codified at Tenn. Code Ann. §§ 8-8-401 et seq.) but made it optional. A county had to adopt the law before it bound the sheriff's office in that county. Section 8-8-419 was the political-activity section. It prohibited classified employees from taking an active part in any political campaign while on duty, from soliciting money for political campaigns under any circumstances, from displaying political advertising while on duty or while in uniform, and, most relevantly, from making any public endorsement of any candidate in any campaign. The violation penalty was dismissal.

Section 8-8-403 defined "classified service" expansively. Deputies were classified. The narrow exclusions were the sheriff, the sheriff's personal secretary, the jail cook, and sometimes the chief deputy.

Common questions

Q: Did this opinion mean every Tennessee deputy sheriff had to quit to run for the county commission?
A: No. The AG said no blanket rule existed. A deputy in a county that had not adopted the 1974 Civil Service Law and whose position was not federally funded could run for the commission while keeping the job.

Q: How did the deputy know whether the federal Hatch Act applied?
A: The Hatch Act trigger was whether the deputy's specific position or duties were financed in whole or in part by federal loans or grants. The deputy's HR or finance office could trace the funding source. The opinion said the federal trigger only mattered if the election was partisan.

Q: Why did announcing one's own candidacy count as an "endorsement" under § 8-8-419?
A: The AG had previously reached the same conclusion in opinion 09-167 about deputies running for sheriff. The reasoning: a candidate publicly announcing for office is, by definition, endorsing themselves as the right person for the office. § 8-8-419's blanket "no public endorsement of any candidate in any campaign" language did not carve out self-endorsement.

Q: What happened if a deputy in a 1974-Act county announced and refused to resign?
A: Section 8-8-419(c) said the person "shall be dismissed from the service of the office of the sheriff." Dismissal was the statutory consequence, not just a disciplinary option.

Q: Did the Civil Service Law block deputies from any political involvement at all?
A: No. Section 8-8-419(b) preserved off-duty political club membership, attendance at political meetings, and the right to vote.

Citations and references

Statutes:

• 5 U.S.C. §§ 1501 et seq. (federal Hatch Political Activity Act)
• Tenn. Code Ann. § 8-8-403 (defining "classified service" in the sheriff's department)
• Tenn. Code Ann. § 8-8-419 (political activity restrictions and dismissal consequence)

Prior AG opinions:

• Op. Tenn. Att'y Gen. 81-305 (May 11, 1981) (Hatch Act analysis for federally funded local positions)
• Op. Tenn. Att'y Gen. 09-167 (Oct. 16, 2009) (deputy running for sheriff)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-008.pdf

Original opinion text

Deputy Sheriff as Candidate for County Commission

QUESTION

Whether a county-employed deputy sheriff would be required to resign from that position in order to run for election to the County Commission?

OPINION

There is no across-the-board requirement that a deputy sheriff resign in order to run for the county commission. Under certain circumstances, however, resignation would be necessary. If the deputy sheriff's position or duties are in connection with an activity financed in whole or in part by federal loans or grants, and if election to the County Commission is a partisan election, then the deputy sheriff would be subject to the provisions of the federal Hatch Act and would be required to resign from that position in order to run for such partisan elective office. Additionally, a deputy sheriff in a county that has adopted the County Sheriff's Civil Service Law of 1974 is prohibited from making any public endorsement of any candidate in any campaign for elected office. A deputy sheriff's announcement of his or her candidacy for the office of county commissioner would constitute an endorsement of that candidacy. Accordingly, in a county that has adopted the 1974 Act, the deputy sheriff would be in violation of Tenn. Code Ann. § 8-8-419 unless he or she first resigned from employment.

ANALYSIS

You have asked whether an individual employed by a county as a deputy sheriff may continue to hold that position while also seeking election to the County Commission. There is no requirement that in all instances a deputy sheriff must resign that position to run for the county commission. But this Office has previously opined that an individual who is employed by a state or local agency whose position is funded in whole or in part by federal funds is prohibited by the federal Hatch Political Activity Act, 5 U.S.C. §§ 1501, et seq., from being a candidate for elective office unless said election is nonpartisan. See Op. Tenn. Att'y Gen. 81-305 (May 11, 1981) (copy attached). A deputy sheriff is a local employee and, therefore, if his position or duties are in connection with an activity financed in whole or in part by federal loans or grants, and if election to the County Commission is a partisan election, then he would be subject to the provisions of the federal Hatch Act. Accordingly, the deputy sheriff would be required to resign from that position in order to run for such partisan elective office.

Additionally, for those counties that have adopted the "County Sheriff's Civil Service Law of 1974," Tenn. Code Ann. § 8-8-419 provides as follows:

(a) No person holding a position in the classified service shall take an active part in any political campaign while on duty, nor under any circumstances shall any employee of the sheriff's department solicit money for political campaigns. A deputy sheriff shall not use such position to reflect the deputy sheriff's personal political feelings as those of the sheriff's department or to exert any pressure on anyone to influence the person's political views. No employee while on duty, nor any officer while in uniform, shall display any political advertising or paraphernalia on such person's body or automobile. No employee of the sheriff's office shall make any public endorsement of any candidate in any campaign for elected office.

(b) However, nothing in this part shall be construed to prohibit or prevent any such employee from becoming or continuing to be a member of a political club or organization and enjoying all the rights and privileges of such membership or from attending any political meetings, while not on duty. Such employee shall not be denied freedom in the casting of a vote.

(c) Any person violating the provisions of this section shall be dismissed from the service of the office of the sheriff.

"Classified service" is defined as all positions and employees in the sheriff's department, except for the sheriff, the sheriff's personal secretary, and the cook for the jail facility, and, in some counties, the chief deputy sheriff. Tenn. Code Ann. § 8-8-403.

This Office has previously opined that a deputy sheriff's announcement of his or her candidacy for the office of sheriff would constitute an endorsement of that candidacy and, if subject to the County Sheriff's Civil Service Law of 1974, such deputy sheriff would be in violation of Tenn. Code Ann. § 8-8-419 unless he or she first resigned from employment. See Op. Tenn. Att'y Gen. 09-167 (October 16, 2009) (copy attached). Similarly, a deputy sheriff's announcement of his or her candidacy for the office of county commissioner would constitute an endorsement of that candidacy. Accordingly, that deputy sheriff, if subject to the County Sheriff's Civil Service Law of 1974, would also be in violation of Tenn. Code Ann. § 8-8-419 unless he or she first resigned from employment.

ROBERT E. COOPER, JR.
Attorney General and Reporter

CHARLES L. LEWIS
Deputy Attorney General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable H. Greeley Wells, Jr.
District Attorney General
Second Judicial District
P. O. Box 526
Blountville, Tennessee 37617