Can a Tennessee deputy sheriff run for sheriff while still employed, and what restrictions apply?

Plain-English summary

Representative Chad Faulkner asked the AG five interlocking questions about deputy sheriffs running for elected office in Tennessee. Two regimes are in play: the federal Hatch Act (which restricts political activity by state and local employees whose positions are connected to federally funded activities) and Tennessee's County Sheriff's Civil Service Law of 1974 (which restricts political activity by classified-service deputies in counties that have adopted the law).

AG Cooper's answers:

1. Unpaid leave doesn't help. A deputy sheriff covered by the federal Hatch Act cannot run for partisan elective office (including sheriff) by going on unpaid leave. The Sixth Circuit in Alexander v. Merit Systems Protection Board (1999) and the Eighth Circuit in Minnesota Department of Jobs and Training v. MSPB (1989) both held the Hatch Act applies regardless of leave status. The legislative history is explicit: Congress considered and rejected an unpaid-leave exception. The covered deputy must resign to run.

2. Out-of-county nonpartisan races are different but Civil Service can still bar them. A deputy in one county can run for sheriff in another county if the election is nonpartisan, because the Hatch Act exempts nonpartisan candidacies (5 U.S.C. § 1503). However, if the deputy's home county has adopted the Civil Service Law of 1974, Tenn. Code Ann. § 8-8-419 prohibits any classified-service person from publicly endorsing any candidate, and the AG previously opined (Op. 09-167) that announcing one's own candidacy counts as an endorsement. So the deputy still has to resign first.

3. Nonpartisan elections are okay if Civil Service doesn't apply. If the deputy or other state/county employee is not covered by the Civil Service Law of 1974 and is running in a nonpartisan election, both federal and state rules permit the candidacy.

4. Soliciting money for your own campaign is barred under Civil Service. Tenn. Code Ann. § 8-8-419 says no employee of the sheriff's department shall solicit money for political campaigns. The text is unambiguous; it includes the deputy's own campaign.

5. Civil Service violation = mandatory dismissal, no rights. Tenn. Code Ann. § 8-8-419(c) uses the mandatory word "shall": any person violating the section "shall be dismissed from the service of the office of the sheriff." The use of "shall" means dismissal is required, not discretionary, and the deputy has no civil-service rights to challenge it.

The combined picture: a deputy sheriff who wants to run for sheriff (in his own county or another, partisan or nonpartisan) almost always has to resign. The federal Hatch Act controls covered employees in partisan races; the state Civil Service Law (in counties that have adopted it) controls classified deputies in any race.

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.

The federal Hatch Act was significantly amended in 2012 (Hatch Act Modernization Act), narrowing the categories of state and local employees covered. Anyone analyzing Hatch Act application today should look at the current statute and the U.S. Office of Special Counsel's guidance, not just this 2010 opinion.

Common questions

Q: What is the federal Hatch Act?
A: A federal law (5 U.S.C. §§ 1501 et seq.) that restricts political activity by federal employees and by state and local employees whose positions are connected with activities financed in whole or part by federal loans or grants. The covered state/local provision is 5 U.S.C. § 1502.

Q: What's the difference between partisan and nonpartisan elections under the Hatch Act?
A: Partisan elections are those where candidates run as nominees of political parties whose candidates for President received electoral votes in the preceding presidential election. The Hatch Act bans partisan candidacies by covered employees. Nonpartisan elections (where no party affiliation appears on the ballot) are exempt under § 1503.

Q: Why doesn't unpaid leave solve the Hatch Act problem?
A: Because Congress specifically considered and rejected an unpaid-leave exception when extending the Hatch Act to state and local employees. 86 Cong. Rec. 2872-75 (1940). The intent was to prohibit partisan candidacy by any covered employee who has not resigned, regardless of leave status. Alexander v. MSPB (6th Cir. 1999); Minnesota Department of Jobs and Training v. MSPB (8th Cir. 1989).

Q: What is Tennessee's County Sheriff's Civil Service Law of 1974?
A: A state statute (located in Title 8, Chapter 8 of the Tennessee Code) that, in counties that have adopted it, creates a classified civil-service system for sheriff's office personnel. Tenn. Code Ann. § 8-8-419 imposes political-activity restrictions on classified employees.

Q: How do I know if my county has adopted the Civil Service Law?
A: The Civil Service Law of 1974 applies in counties that have specifically adopted it through local action. Most large urban counties have adopted some version; smaller rural counties often have not. The county's HR department or county attorney can confirm whether the law applies. If it does, the local sheriff's policies should reflect § 8-8-419.

Q: Is announcing my candidacy really the same as endorsing it?
A: Under Op. Tenn. Att'y Gen. 09-167 (October 16, 2009), yes. The AG concluded that a deputy sheriff's announcement of his or her own candidacy constitutes a public endorsement of that candidacy for purposes of the Civil Service Law's prohibition against endorsing candidates. So announcing your own candidacy triggers § 8-8-419 just as endorsing someone else's would.

Q: What if I just casually accept campaign donations rather than actively soliciting?
A: § 8-8-419 prohibits any employee of the sheriff's department from soliciting money for political campaigns. The opinion reads "solicit" broadly. Active fundraising is clearly out; merely accepting unsolicited donations is murkier, but a cautious deputy should resign before any active fundraising activity.

Q: Why is dismissal mandatory rather than discretionary?
A: Because the legislature used the word "shall." Tenn. Code Ann. § 8-8-419(c) provides that "[a]ny person violating the provisions of this section shall be dismissed from the service of the office of the sheriff." The use of "shall" indicates mandatory action; the sheriff has no discretion to retain a deputy who has violated § 8-8-419.

Q: Can a deputy who resigns to run later return to the sheriff's office?
A: This opinion does not address re-employment. The civil-service-law dismissal language is about being "dismissed from the service of the office of the sheriff" for the violation. A clean resignation before any violation occurs is different from a dismissal for cause and presumably leaves the door open for rehire. But this is a fact-specific question that depends on the county's hiring rules.

Background and statutory framework

The federal Hatch Act, codified at 5 U.S.C. §§ 1501 et seq., restricts political activity by certain state and local government employees. The covered category is employees in positions financed in whole or part by federal loans or grants. § 1502 lists prohibited activities, including being a candidate for elective office. The general Hatch Act ban applies only to partisan elections; § 1503 carves nonpartisan elections out of the prohibition.

The unpaid-leave question was litigated in two federal circuits. Both reached the same answer: the Hatch Act applies regardless of an employee's leave status. Alexander v. Merit Systems Protection Board (6th Cir. 1999); Minnesota Department of Jobs and Training v. MSPB (8th Cir. 1989). The Eighth Circuit's reasoning, which the opinion quotes:

"A review of the legislative history of the provisions of the Act makes it unmistakably clear that covered state employees are subject to the prohibitions of the Act regardless of leave status. During hearings on a proposal to extend the Hatch Act to state and local government employees, Congress specifically considered and rejected a provision which would have exempted from the Hatch Act's prohibitions those candidates who had taken a leave of absence without pay. 86 Cong. Rec. 2872-75 (1940). The legislative history of the Act further discloses that the intent of the statute was to prohibit partisan candidacy by any covered employee who had not resigned from his or her employment."

The state-law overlay is Tennessee's County Sheriff's Civil Service Law of 1974, codified at Tenn. Code Ann. § 8-8-419. The statute is one of several state laws structuring sheriff's office personnel; counties adopt it (or choose not to). Where adopted, it creates a classified service for sheriff's department personnel and imposes various political-activity restrictions. Subsection (a) provides:

"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."

The opinion reads each clause carefully. The first clause (no active part in campaigns while on duty) is qualified to on-duty conduct. The second clause (no solicitation of money) is unqualified: it applies regardless of duty status, and on its face it covers any campaign, including the deputy's own. The opinion's plain-text reading produces the conclusion that a deputy soliciting money for his or her own campaign is in violation.

The mandatory-dismissal language in subsection (c) ("shall be dismissed") is also read at face value. Tennessee follows the standard rule that "shall" in statutes is mandatory unless the context indicates otherwise. The legislature could have used "may," giving the sheriff discretion, but did not. The opinion takes the legislative choice at face value.

The trickier interaction is between Hatch Act and Civil Service Law. A deputy might think: "The Hatch Act lets me run in a nonpartisan election (§ 1503), so I can run for sheriff in another county where the election is nonpartisan." The federal answer is yes. But the state Civil Service Law layer (§ 8-8-419) catches that deputy with a different prohibition: announcing the candidacy is a public endorsement of a campaign, which the section bars. So even if the federal layer permits, the state layer forbids. The opinion is careful to walk through this stacking.

The opinion's last point on remedy is significant: "Any person violating the provisions of this section shall be dismissed." There is no civil-service hearing right, no progressive-discipline process, no opportunity to cure. Once the violation is established, dismissal is automatic. The opinion treats this as the legislature's deliberate choice to make compliance binary: stay quiet about politics or quit.

Citations and references

Statutes:

• 5 U.S.C. §§ 1501 et seq. (federal Hatch Act)
• 5 U.S.C. § 1502(a)(3) (Hatch Act prohibition on candidacy)
• 5 U.S.C. § 1503 (nonpartisan election exception)
• Tenn. Code Ann. § 8-8-419 (Tennessee County Sheriff's Civil Service Law of 1974, political activity)

Cases:

• Alexander v. Merit Systems Protection Board, 165 F.3d 474 (6th Cir. 1999), federal court of appeals (Hatch Act applies regardless of leave)
• Minnesota Department of Jobs and Training v. Merit Systems Protection Board, 875 F.2d 179 (8th Cir. 1989), federal court of appeals

Legislative history:

• 86 Cong. Rec. 2872-75 (1940) (rejection of unpaid-leave exemption)
• 86 Cong. Rec. 9447 (1940) (intent to prohibit partisan candidacy by covered employees)

Prior AG opinions:

• Op. Tenn. Att'y Gen. 81-305 (May 11, 1981) (Hatch Act application to deputy sheriffs)
• Op. Tenn. Att'y Gen. 09-167 (October 16, 2009) (announcing candidacy as public endorsement)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-029.pdf

Original opinion text

Deputy Sheriff as Candidate for Political Office

QUESTIONS

1. Can a deputy sheriff who is subject to the federal Hatch Act be granted an unpaid leave of absence to seek the office of sheriff?

2. Can a deputy sheriff employed in one county seek the office of sheriff in another county when the election for sheriff in that county is a nonpartisan election?

3. Can an employee of a state or county entity who is subject to the federal Hatch Act seek the office of sheriff while still employed if the election for that office is a nonpartisan election?

4. Does the prohibition contained in the County Sheriff's Civil Service Law of 1974 against soliciting money for a political campaign apply to a deputy sheriff's own campaign if running for office while employed?

5. Whether a deputy sheriff has any rights under the County Sheriff's Civil Service Law of 1974 if released from employment for violating that law?

OPINIONS

1. No, the federal Hatch Act applies even if the covered employee is on approved unpaid leave.

2. A deputy sheriff employed in one county would not be prohibited under the federal Hatch Act from seeking the office of sheriff in another county while still employed if the election for that office is nonpartisan. However, if the county in which the deputy sheriff is employed has adopted the County Sheriff's Civil Service Law of 1974 and the deputy sheriff is subject to the law, then the deputy sheriff would be in violation of Tenn. Code Ann. § 8-8-419 unless he or she first resigned from employment, even though the deputy sheriff is seeking the office of sheriff in another county.

3. As long as the employee is not subject to the prohibitions contained in the County Sheriff's Civil Service Law of 1974, and the election for the office of sheriff is a nonpartisan election, then the employee would be permitted to seek election to the office of sheriff while still employed.

4. Under the plain language of the statute, if a deputy sheriff is subject to the County Sheriff's Civil Service Law of 1974, he or she would be prohibited from soliciting money for his or her political campaign for election to the office of sheriff.

5. If a deputy sheriff is subject to the County Sheriff's Civil Service Law of 1974 and violates the provisions of Tenn. Code Ann. § 8-8-419 by announcing his or her candidacy for the office of sheriff and/or by soliciting money for his or her political campaign, dismissal from employment is mandated by the plain language of the statute.

ANALYSIS

1. This Office has previously opined that, if a deputy sheriff's position or duties are in connection with an activity financed in whole or in part by federal loans or grants, he or she is prohibited by the federal Hatch Political Activity Act, 5 U.S.C. §§ 1501, et seq., from being a candidate for elective office unless the election is nonpartisan. See Op. Tenn. Att'y Gen. 81-305 (May 11, 1981). You have asked if a deputy sheriff can be granted an unpaid leave of absence to seek the office of sheriff without violating the federal Hatch Act.

This issue was specifically addressed in Alexander v. Merit Systems Protection Board, 165 F.3d 474, 482 (6th Cir. 1999) and Minnesota Department of Jobs and Training v. Merit Systems Protection Board, 875 F.2d 179, 183 (8th Cir. 1989). In both cases, the court, relying upon the Act's legislative history, held that the Hatch Act applies without regard for an employee's leave status relying upon the Act's legislative history.

A review of the legislative history of the provisions of the Act makes it unmistakably clear that covered state employees are subject to the prohibitions of the Act regardless of leave status. During hearings on a proposal to extend the Hatch Act to state and local government employees, Congress specifically considered and rejected a provision which would have exempted from the Hatch Act's prohibitions those candidates who had taken a leave of absence without pay. 86 Cong. Rec. 2872-75 (1940). The legislative history of the Act further discloses that the intent of the statute was to prohibit partisan candidacy by any covered employee who had not resigned from his or her employment. See 86 Cong. Rec. 9447 (1940). Thus, it is clear from the statute and the legislative history that a covered employee is prohibited from running for public office in a partisan election, even if on approved leave without pay.

Id. at 183 (Emphasis added).

2. Your second question asks whether a deputy sheriff employed in one county may seek the office of sheriff in another county while still employed, when the election for sheriff in the other county is a nonpartisan election. The federal Hatch Act only prohibits state and local employees from being a candidate for elective office in a partisan election. Nonpartisan candidacies are excepted from this rule by 5 U.S.C. § 1503, which states as follows:

Section 1502(a)(3) of this title does not prohibit any State or local officer or employee from being a candidate in any election if none of the candidates is to be nominated or elected at such election as representing a party any of whose candidates for Presidential elector received votes in the last preceding election at which Presidential electors were selected.

Accordingly, a deputy sheriff would not be prohibited under the federal Hatch Act from seeking the office of sheriff in another county while still employed if the election for that office is nonpartisan. However, Tennessee's County Sheriff's Civil Service Law of 1974 prohibits any person holding a position in the classified service from making any public endorsement of any candidate in any campaign for elected office. Tenn. Code Ann. § 8-8-419. 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 for purposes of this law. See Op. Tenn. Att'y Gen. 09-167 (October 16, 2009). Accordingly, if the county in which the deputy sheriff is employed has adopted the County Sheriff's Civil Service Law of 1974 and the deputy sheriff is subject to the law, then the deputy sheriff would be in violation of Tenn. Code Ann. § 8-8-419 unless he or she first resigned from employment, even though the deputy sheriff is seeking the office of sheriff in another county.

3. You have also asked whether an employee of a state or county entity who is subject to the federal Hatch Act may seek the office of sheriff while employed if the election for that office is nonpartisan. As discussed above, nonpartisan candidacies are specifically excepted from the prohibitions contained in the federal Hatch Act. Accordingly, as long as the employee is not subject to the prohibitions contained in the County Sheriff's Civil Service Law of 1974, and the election for the office of sheriff is a nonpartisan election, then such employee would be permitted to seek election to that office while still employed.

4.&5. Your final questions concern the application and interpretation of the County Sheriff's Civil Service Law of 1974. First, you ask whether the prohibition in that statute against soliciting money for a political campaign would apply to a deputy sheriff's own campaign if seeking election to an office while still employed. Tenn. Code Ann. § 8-8-419(a) provides that "[n]o 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." (Emphasis added). This language is clear and unambiguous on its face. It prohibits any employee of a sheriff's office from soliciting money for any political campaign. Accordingly, if a deputy sheriff is subject to the statute, he or she would be prohibited from soliciting money for his or her campaign for election to the office of sheriff.

Second, you have asked whether a deputy sheriff has any rights under the statute if released from employment for violating it. Tenn. Code Ann. § 8-8-419(c) provides that "[a]ny person violating the provisions of this section shall be dismissed from the service of the office of the sheriff." (Emphasis added). The use of the term "shall" indicates that the Legislature intended for this provision to be mandatory. Accordingly, if a deputy sheriff is subject to the County Sheriff's Civil Service Law of 1974 and violates the provisions of Tenn. Code Ann. § 8-8-419 by announcing his or her candidacy for the office of sheriff and/or by soliciting money for his or her political campaign, dismissal from employment is mandated by the plain language of the statute.

ROBERT E. COOPER, JR.
Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable Chad Faulkner
State Representative
G4 War Memorial Building
Nashville, TN 37243-0125