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 activities financed in whole or part by federal loans or grants. 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 determines whether a violation occurred and whether removal is warranted (5 U.S.C. §§ 1504, 1505). The U.S. Office of Special Counsel is authorized to issue advisory opinions about state or local employees' political activity (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: The opinion addresses candidacy, not leave, payroll, or other employment conditions during a campaign. It does not decide those questions.

Q: What's the federal Hatch Act for?
A: The opinion describes the Hatch Act rule applicable to local employees whose positions or duties connect to activities funded in whole or part by federal loans or grants. Such employees may not be candidates in partisan elections, but the Act permits nonpartisan candidacy.

Q: How do I know if my position is "covered" by the Hatch Act?
A: The opinion states the test as whether the position or duties are connected with an activity financed in whole or part by federal loans or grants. It says the Office of Special Counsel is authorized to issue advisory opinions about state or local employees' political activity. It does not say those opinions are binding or decide whether a particular position is covered.

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 opinion says the Merit Systems Protection Board determines whether a violation occurred and whether it warrants removal, then notifies the employee and affected agency. It does not identify a standard penalty.

Q: Can the local government just turn down federal funding to free its employees?
A: The opinion does not address funding or job restructuring as ways to change Hatch Act coverage. Its test turns on whether the employee's position or duties connect with an activity financed in whole or part by federal loans or grants.

Q: Does the Little Hatch Act ever apply to local employees?
A: The opinion says the "Little Hatch Act" (Tenn. Code Ann. §§ 2-19-201 et seq.) limits the political activities of state employees. It concludes that this law does not prohibit local employees from running for office.

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. Tenn. Code Ann. § 7-51-1501 overrides local charter provisions or ordinances limiting the listed political activities of local employees, subject to the stated exception for seeking a seat on the same municipal or metropolitan governing body.

The federal Hatch Act (5 U.S.C. §§ 1501 et seq.) covers local employees whose positions or duties connect with activities financed in whole or part by federal loans or grants. It bars covered employees from candidacy in partisan elections but permits candidacy in nonpartisan ones (5 U.S.C. § 1503). The opinion describes advisory-opinion authority for the Office of Special Counsel and violation determinations by the Merit Systems Protection Board.

For a particular employee, the opinion's answer depends on the relevant local governing-body exception and on whether the employee is covered by the federal Act and seeks office in a partisan election.

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 et seq. (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)

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