Can a Tennessee city or county employee run for elected office while keeping their job?

Plain-English summary

Representative Jimmy Eldridge asked whether any state or federal law prohibited a city or county employee in Tennessee from running for elective office. AG Robert E. Cooper, Jr. broke the answer into three layers.

State law does not prohibit local employees from running. Tennessee's "Little Hatch Act" (Tenn. Code Ann. §§ 2-19-201 et seq.) restricts only state employees, not local ones. Local government charter rules that try to restrict employee political activity are overridden by Tenn. Code Ann. § 7-51-1501, a state statute that sweeps away local restrictions on political activity, including running for office. There's one carve-out: an employee of a municipal or metropolitan government cannot, without authorization, run for office in the local governing body of that same municipal or metropolitan government.

Federal law adds a layer. The federal Hatch Political Activity Act (5 U.S.C. §§ 1501 et seq.) reaches local government employees whose positions or duties are connected with federally funded activities. Those employees cannot be candidates for elective office in partisan races. They can run in nonpartisan elections (5 U.S.C. § 1503). The Merit Systems Protection Board has authority to determine whether a violation occurred and whether removal from federal-funded employment is warranted (5 U.S.C. §§ 1504, 1505). The U.S. Office of Special Counsel issues advisory opinions on whether specific positions are subject to the Act (5 C.F.R. § 1800.3).

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.

Common questions

Q: Does my city or county have to keep me on the payroll while I run?
A: That's a separate question (employment, not eligibility) the opinion did not address directly. Section 7-51-1501 protects the right to run; it doesn't compel continued employment. Local employers can have neutral leave or job-restructuring policies that affect candidates, as long as they don't run afoul of the state preemption.

Q: What's the federal Hatch Act for?
A: Originally enacted in 1939, it aimed to prevent federal employees from being pressured into partisan political activity by their bosses. The 1940 amendments extended Hatch Act limits to state and local employees whose positions are funded by federal grants or loans. The point: federal money should not subsidize partisan political activity by people whose paychecks depend on it.

Q: How do I know if my position is "covered" by the Hatch Act?
A: The position must have duties "in connection with an activity financed in whole or in part by loans or grants made by the United States or a Federal agency." If your job is tied to federally funded programs (HUD housing, EPA-funded environmental work, federal transportation grants, etc.), you're likely covered. The U.S. Office of Special Counsel issues binding advisory opinions on specific positions.

Q: What about nonpartisan races?
A: Hatch-covered employees CAN run in nonpartisan elections (5 U.S.C. § 1503). Many local races (school board, judicial offices, some municipal positions) are formally nonpartisan in Tennessee. If your race is nonpartisan, the Hatch Act does not bar you, even if your job is federally funded.

Q: My city charter says employees can't run for office. Is it enforceable?
A: No, except in one narrow context. Tenn. Code Ann. § 7-51-1501 preempts city and county charter provisions that purport to limit employee political activity, including running for office. The exception: an employee of a municipal or metropolitan government can't run for office on the local governing body of the same government, unless local law authorizes it.

Q: What happens if I'm a federally funded local employee and run anyway?
A: The Office of Special Counsel investigates. The Merit Systems Protection Board adjudicates. If the Board finds a violation, it determines whether the violation warrants removal of the employee. Removal is the standard penalty.

Q: Can the local government just turn down federal funding to free its employees?
A: That's a policy decision, not a legal answer. The Hatch Act's reach depends on the federal funding tied to the position. Restructuring positions to remove federally funded duties can change Hatch Act coverage; eliminating the funding entirely can do the same.

Q: Does the Little Hatch Act ever apply to local employees?
A: No. The Tennessee Little Hatch Act (Tenn. Code Ann. §§ 2-19-201 et seq.) defines its coverage as employees of the state executive branch, its departments, divisions, and agencies, and appointed officers/employees of certain education institutions, establishments, corporations, or agencies "supported principally by state funds." Local government employees fall outside that definition.

Background and statutory framework

Tennessee law on public employee political activity has three layers. The Little Hatch Act (Tenn. Code Ann. §§ 2-19-201 et seq.) covers state employees, restricting their political activity in ways analogous to (but distinct from) the federal Hatch Act. Section 7-51-1501 covers local employees, but as a preemption statute: it sweeps away local restrictions and protects most political activities (with the local-governing-body carve-out).

The federal Hatch Act (5 U.S.C. §§ 1501 et seq.) overlays both. Originally federal-employee-only, the 1940 amendments extended its reach to state and local employees whose duties are federally connected. The federal scheme bans candidacy in partisan elections by covered employees but specifically allows candidacy in nonpartisan ones (5 U.S.C. § 1503). Enforcement runs through the U.S. Office of Special Counsel and the Merit Systems Protection Board.

The 1996 Hatch Act Reform Amendments (after this opinion's prior cited authorities were issued) loosened restrictions on federal employees' political activity but kept the candidacy ban for partisan elections. The state/local extension under § 1501 was less affected. The general framework, candidacy ban for partisan elections + nonpartisan exception, was the operative rule in 2010.

The opinion's framework is essentially: the state pretty much doesn't restrict you (except for the in-house carve-out); your local government cannot impose its own restrictions; the only real federal trip-wire is the Hatch Act if your job is federally funded and the race is partisan. For most local employees in Tennessee running for non-conflict offices in partisan elections, the answer is "you can run if your job is not federally connected, you can run in nonpartisan elections regardless, and your local government cannot prevent you from doing either."

Citations and references

State statutes (as of 2010):

• Tenn. Code Ann. §§ 2-19-201 et seq. (Little Hatch Act)
• Tenn. Code Ann. § 7-51-1501 (preemption)

Federal:

• 5 U.S.C. §§ 1501-1508 (Hatch Political Activity Act)
• 5 C.F.R. § 1800.3 (Office of Special Counsel advisory opinions)

Cases:

• Special Counsel v. Alexander, 71 M.S.P.R. 636 (1996), aff'd, 165 F.3d 474 (6th Cir. 1999) (Sixth Circuit): MSPB Hatch Act enforcement

Prior opinions referenced:

• Op. Tenn. Att'y Gen. 96-106 (Aug. 20, 1996)
• Op. Tenn. Att'y Gen. 81-305 (May 11, 1981)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-094.pdf

Original opinion text

Local Employee Running for Elective Office

QUESTION

Whether any state or federal law prohibits a city or county employee from running for an elective office?

OPINION

State law would not prohibit a local employee from running for an elective office. Additionally, pursuant to Tenn. Code Ann. § 7-51-1501, a local employee would not be prohibited by any city or county charter provisions from running for elective office. If, however, a local employee's position or duties are in connection with an activity financed in whole or in part by federal loans or grants, he or she would be 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.

ANALYSIS

You have asked whether there is any state or federal law that would prohibit a city or county employee from running for an elective office. State law would not prohibit a local employee from running for an elective office. The "Little Hatch Act," Tenn. Code Ann. §§ 2-19-201, et seq., only applies to public officers and employees who are defined as "all employees of the executive branch of the state government, or any department, division, or agency thereof, and all appointed officers and employees of any education institution, establishment, corporation or agency supported principally by state funds." Thus, the Little Hatch Act only limits the political activities of state employees.

Additionally, this Office has previously opined that Tenn. Code Ann. § 7-51-1501 effectively overrules every local governmental charter provision or ordinance that purports to limit the listed political activities of its employees, including the right to run for or be a candidate for any state or local elective office. See Op. Tenn. Att'y Gen. 96-106 (August 20, 1996). Thus, pursuant to this statute, local employees are not prohibited by any city or county charter provision from running for elective office. However, unless authorized by law or local ordinance, an employee of a municipal or metropolitan government is not qualified to run for elected office in the local governing body of the local governmental unit in which the employee is employed. Tenn. Code Ann. § 7-51-1501.

This Office has also opined that if a local employee'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). The federal Hatch Act does not prohibit a local employee whose employment is federally funded from being a candidate in a nonpartisan election. 5 U.S.C. § 1503. The Office of Special Counsel is authorized to issue advisory opinions about the political activity of state or local employees. 5 C.F.R. § 1800.3; see Special Counsel v. Alexander, 71 M.S.P.R. 636 (1996), aff'd, 165 F.3d 474 (6th Cir. 1999). The Merit Systems Protection Board has the authority to determine whether a violation of the federal Hatch Act has occurred; to determine whether a violation warrants the removal of the employee; and to notify the employee and affected agency of the determination. 5 U.S.C. §§ 1504 and 1505.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Associate Solicitor General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable Jimmy A. Eldridge
State Representative
208 War Memorial Building
Nashville, TN 37243-0148