Does Tennessee's 2010 amendment to the Sheriff's Civil Service Law on political activity apply to fundraising done before the law took effect?

Plain-English summary

Tennessee's County Sheriff's Civil Service Law (Tenn. Code Ann. § 8-8-401 et seq.) restricts political activity by sheriff's department employees in counties that have adopted the law. The previous version of § 8-8-419(a) included a flat prohibition on soliciting money for political campaigns: "under no circumstances shall any employee of the sheriff's department solicit money for political campaigns."

2010 Tenn. Pub. Acts Ch. 1025 rewrote that subsection. Among other changes, it carved out an exception: an employee (including a deputy sheriff) who is running for an elected office may solicit and accept campaign contributions for his or her own campaign, as long as not on duty or in uniform when doing so. The law also opened up self-endorsement in one's own campaign, while keeping prohibitions on endorsing others, on on-duty campaigning, and on displaying political paraphernalia.

A state representative asked whether the new exception reaches back in time. The AG said no, on two grounds:

Statutory text. Section 3 of Chapter 1025 says the act takes effect "upon becoming a law." The Governor signed it on June 9, 2010, so it took effect that day. Nothing in the text indicates retroactive reach. Under Dowlen v. Fitch, 264 S.W.2d 824, 825 (Tenn. 1954), Tennessee statutes are presumed to operate prospectively unless the General Assembly has plainly expressed or necessarily implied otherwise.

Legislative history. Even if the text were ambiguous, the legislative history of the act shows that it was intended to change current law, not to reach backward and rehabilitate conduct that violated the prior version of § 8-8-419(a). So fundraising or campaign activities that took place before June 9, 2010 remain subject to the older rule (which absolutely banned employee solicitation of political contributions).

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: I'm a deputy sheriff in a covered county and I'm running for an elected office. Can I solicit campaign contributions for my own race?
A: Under the post-June 9, 2010 version of Tenn. Code Ann. § 8-8-419(a)(2)(A), yes, provided you do so while off duty and out of uniform. The pre-amendment version did not have this exception. This opinion confirms the new rule does not apply retroactively to soliciting that happened before June 9, 2010.

Q: What's the rule on endorsements?
A: Generally, no employee of the sheriff's office may publicly endorse any candidate in any campaign. The post-June 9, 2010 exception lets the employee or deputy "endorse" themselves in their own campaign. The general no-endorsement rule still applies to endorsing other candidates.

Q: I solicited contributions before June 9, 2010 while running for office. Am I in trouble?
A: This opinion does not tell you what enforcement action the civil service board can take. It tells you that the pre-June 9, 2010 rules govern your pre-June 9 conduct. The pre-amendment rule was an absolute ban on soliciting political contributions, so that activity was prohibited at the time it occurred. Whether any consequence still attaches is a matter for the civil service board and any due-process and limitations doctrines that apply.

Q: What is "prospective" application?
A: A law applies prospectively when it governs conduct occurring after the law's effective date but not conduct that already occurred. The default in Tennessee is prospective application unless the legislature expressly says otherwise (Dowlen).

Q: Does Chapter 1025 apply in every Tennessee county?
A: Not exactly. The Sheriff's Civil Service Law as a whole is local in effect: it applies in a particular county only if the county legislative body votes (by two-thirds) to adopt it. Tenn. Code Ann. § 8-8-402(a). But the new § 8-8-419(a)(2) (the political activity provision) applies in any county that has adopted the Civil Service Law and, "notwithstanding any private act, resolution, personnel policy or charter provision to the contrary," in any other county that adopts a sheriff's civil service law. Tenn. Code Ann. § 8-8-402(b).

Q: Can the civil service board still impose discipline for pre-June 9 conduct?
A: That's beyond the opinion's scope. The opinion answers only the retroactivity question. Discipline is a matter of the board's procedures, the applicable limitations period, and the specific facts of any case.

Background and statutory framework

The County Sheriff's Civil Service Law of 1974 set up a civil service system for sheriff's department employees in counties that opt in. Tenn. Code Ann. § 8-8-419(a) governs political activity for employees in the classified service.

Before the 2010 amendment, the rule banned all employee solicitation of political campaign money, all public endorsements of candidates, and on-duty political activity. The 2010 amendment carved out two exceptions: employees running for office could solicit and accept contributions for their own campaigns when off duty and out of uniform; and they could endorse themselves in their own campaigns.

The text of Chapter 1025 § 3 says the act takes effect "upon becoming a law, the public welfare requiring it." Governor Bredesen signed the act on June 9, 2010. That makes June 9, 2010 the effective date.

The retroactivity principle the AG applies is Dowlen v. Fitch, 264 S.W.2d 824, 825 (Tenn. 1954): Tennessee statutes are given prospective effect unless the General Assembly has plainly expressed or necessarily implied retroactive force. Spencer v. Towson Moving and Storage, 922 S.W.2d 508, 510 (Tenn. 1996), tells courts to look first to the statute's language for legislative purpose; Lucius v. Bayside First Mortgage, 43 F. Supp. 2d 868, 871 (W.D. Tenn. 1999), illustrates use of legislative history when text is ambiguous. Here, the text is clear (no retroactivity language), and the legislative history confirms a prospective intent.

The opinion also references prior 2010 AG opinions interpreting § 8-8-419(a)'s pre-amendment text: Op. Tenn. Att'y Gen. 10-08 (Jan. 25, 2010) and 10-29 (Mar. 10, 2010).

Citations and references

Statutes:

• 2010 Tenn. Pub. Acts Ch. 1025 (the amending act)
• Tenn. Code Ann. § 8-8-402(a), (b) (Civil Service Law local effect; political-activity provision applies broadly)
• Tenn. Code Ann. § 8-8-419 (political activity of sheriff's office employees)
• Tenn. Code Ann. § 8-8-419(a)(2) (post-amendment fundraising rule)

Cases:

• Dowlen v. Fitch, 264 S.W.2d 824 (Tenn. 1954) (statutes presumed prospective)
• Spencer v. Towson Moving and Storage, Inc., 922 S.W.2d 508 (Tenn. 1996) (legislative purpose from statutory text)
• Lucius v. Bayside First Mortgage, Inc., 43 F. Supp. 2d 868 (W.D. Tenn. 1999) (legislative history as construction aid)

Prior AG opinions:

• Op. Tenn. Att'y Gen. 10-08 (Jan. 25, 2010)
• Op. Tenn. Att'y Gen. 10-29 (Mar. 10, 2010)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-095.pdf

Original opinion text

August 27, 2010
Opinion No. 10-95

Retroactive Effect of Amendment to Sheriff's Civil Service Law

QUESTIONS

2010 Tenn. Pub. Acts Ch. 1025 ("Chapter 1025") amended Tenn. Code Ann. § 8-8-419 regarding political activity under the Sheriff's Civil Service Law.

1. Does this amendment apply to fundraising or campaign activities that took place before the effective date of the law?

2. Is retroactive application of the amendment consistent with the letter of the act or legislative intent?

OPINIONS

1. Chapter 1025 does not apply to fundraising or campaign activities that took place before it became law.

2. Retroactive application of Chapter 1025 is inconsistent with the language of the act; nor does the legislative history of the act reflect any intent to apply it retroactively.

ANALYSIS

This opinion concerns the retroactive application of 2010 Tenn. Pub. Acts Ch. 1025. Section 1 of this act rewrites subsection (a) of Tenn. Code Ann. § 8-8-419. This statute addresses political activity of employees in a sheriff's office in a county that has adopted the County Sheriff's Civil Service Law of 1974. Before the 2010 amendment, this subsection provided:

(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 that 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.

This Office recently addressed the meaning of this language in two opinions. Op. Tenn. Att'y Gen. 10-29 (March 10, 2010); Op. Tenn. Att'y Gen. 10-08 (January 25, 2010). As rewritten by Chapter 1025, Tenn. Code Ann. § 8-8-419(a) now provides:

(a)(1) No person holding a position in the classified service shall take an active part in any political campaign while on duty.

(2)(A) No employee of the sheriff's department shall solicit money for political campaigns; provided that such restriction shall not prohibit an employee, including a deputy sheriff, who is running for an elected office from soliciting and accepting campaign contributions for such person's own election campaign if the person is not on duty or in uniform when such activities occur.

(B) No employee of the sheriff's office shall make any public endorsement of any candidate in any campaign for elected office; provided, that if an employee or deputy sheriff is running for an elected office then such restriction shall not apply to that employee or deputy sheriff's own campaign.

(3) 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 that person's political views.

(4) 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.

Section 2 of the new law amends Tenn. Code Ann. § 8-8-402 to read as follows:

(a) Except as provided in subsection (b), this part shall be local in effect and shall become effective in a particular county upon the contingency of a two-thirds (2/3) vote of the county legislative body approving this law.

(b) On or after the effective date of this act, § 8-8-419(a)(2) shall apply in any particular county which has adopted or which after the effective date of this act makes this part applicable to such county, and shall also apply in any other county, notwithstanding any private act, resolution, personnel policy or charter provision to the contrary, which has adopted or which adopts a sheriff's civil service law.

(Emphasis added). Section 3 provides: "This act shall take effect upon becoming a law, the public welfare requiring it." (Emphasis added). Chapter 1025 took effect when the Governor signed it on June 9, 2010.

1. Retroactive Effect

The first question is whether Chapter 1025 applies to fundraising or campaign activities that took place before it became law. By its terms, this act became effective on becoming a law. Nothing in the act indicates it was intended to apply retroactively to conduct that took place before its effective date. Statutes are given a prospective effect unless the General Assembly has plainly expressed or necessarily implied that an act should have retroactive force. Dowlen v. Fitch, 196 Tenn. 206, 264 S.W.2d 824, 825 (Tenn.), reh'g denied (1954). For this reason, based on the language of the act, it does not apply to fundraising or campaign activities that took place before it became law.

2. Legislative Intent

The second question is whether retroactive application of Chapter 1025 is consistent with the letter of the act or legislative intent. Courts should look first to the language of the statute to determine legislative purpose. Spencer v. Towson Moving and Storage, Inc., 922 S.W.2d 508, 510 (Tenn. 1996). Where a statute is ambiguous or when it is not clear what the legislature intended, courts may look to the legislative history to determine the meaning of the statute. See, e.g., Lucius v. Bayside First Mortgage, Inc., 43 F.Supp.2d 868, 871 (W.D. Tenn. 1999). In this case nothing in the language of the act indicates that it was intended to apply retroactively. The legislative history of the act also reflects that it was intended to change the current law, not to apply retroactively. Thus, retroactive application of Chapter 1025 is inconsistent with the language of the act; nor does its legislative history reflect any intent to apply it retroactively.

ROBERT E. COOPER, JR.
Attorney General and Reporter

BARRY TURNER
Deputy Attorney General

ANN LOUISE VIX
Senior Counsel

Requested by:

Honorable G.A. Hardaway, Sr.
State Representative
109 War Memorial Building
Nashville, Tennessee 37243-0192