Can the Tennessee Governor host a political fundraiser at the Executive Residence, and does the public get to see the Governor's daily schedule?

Plain-English summary

Two state legislators asked whether the Governor (and other elected state officials) could use state property, particularly the Executive Residence, for campaign activities like fundraisers, and what disclosure obligations would attach. The AG worked through three questions:

1. Use of state property for campaign activities. The Little Hatch Act (Tenn. Code Ann. §§ 2-19-201 through -208) ordinarily prohibits using state buildings, equipment, or facilities for campaign activity. But § 2-19-201(3) exempts popularly elected officials, officials elected by the General Assembly, qualified candidates for public office, members of the Governor's cabinet, and members of the Governor's staff from the Act except for § 2-19-202. The Davidson County Chancery Court applied that exemption in Hooker v. Sundquist to permit then-Governor Sundquist's use of the Executive Residence for a political fundraiser. So elected state officials may use state property for campaign-related activities.

2. Disclosure of expenses. Even if the use itself is allowed, the resulting expenses may have to be disclosed under the Campaign Financial Disclosure Act of 1980 (Tenn. Code Ann. §§ 2-10-101 to -121). Any expense that fits the definition of "contribution" (§ 2-10-102(4)) or "expenditure" (§ 2-10-102(6)) must show up on the candidate's or committee's regular disclosure reports.

3. Disclosure of the Governor's schedule. The Governor's non-personal schedule, including events at the Executive Residence, fits the Public Records Act definition of a public record and is presumptively open. But the common-law deliberative-process privilege (also called executive privilege) shields portions that would reveal the Governor's deliberative or mental processes. Times Mirror Co. v. Superior Court applied that privilege to a Governor's appointment calendar. So portions of the schedule may be redacted.

Currency note

This opinion was issued in 2016. 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: What is the "Little Hatch Act"?
A: Tennessee's analog to the federal Hatch Act. § 2-19-206 makes it unlawful to display campaign signs on state property, use state facilities, equipment, or vehicles for campaign purposes, or hold campaign meetings in state buildings (unless reasonably equal opportunity is given to all sides).

Q: Why doesn't that prohibition apply to the Governor?
A: Because § 2-19-201(3) excludes "popularly elected officials, officials elected by the general assembly, qualified candidates for public office, members of the governor's cabinet, and members of the governor's staff" from the Act, except for § 2-19-202. The Chancery Court in Hooker v. Sundquist applied that exclusion when then-Governor Sundquist hosted a political fundraiser at the Executive Residence.

Q: What is § 2-19-202 that still applies?
A: The opinion only flags that § 2-19-202 is the one provision elected officials are not exempt from. The opinion does not detail what § 2-19-202 covers (it relates to certain coercion or solicitation prohibitions in the broader Act).

Q: Does the Campaign Financial Disclosure Act add a layer?
A: Yes. Independent of whether use of state property is permitted, expenses tied to campaign activity have to be disclosed if they qualify as "contributions" or "expenditures." A "contribution" includes any "advance, conveyance, deposit, distribution, transfer of funds, loan, loan guaranty, personal funds of a candidate, payment, digital currency, gift or subscription of money or like thing of value" made for election purposes or for defraying officeholder expenses. An "expenditure" includes purchases, payments, distributions, loans, advances, deposits, or gifts of money or anything of value for election purposes, plus "use of campaign funds by an officeholder for the furtherance of the office of the officeholder."

Q: Is the Governor's daily schedule a public record?
A: The "non-personal" schedule (the parts tied to official business and government events) is a public record under § 10-7-503(a)(1)(A) and is presumptively open. Personal-life entries are not records of official business. Even within the non-personal schedule, portions revealing the Governor's deliberative or mental processes may be withheld under the deliberative-process/executive privilege.

Q: What is the deliberative-process privilege?
A: A common-law privilege that protects the deliberative and mental processes of the executive. The U.S. Supreme Court recognized a form of it in United States v. Nixon, and state courts have applied it similarly. It is not absolute; it must be weighed against competing interests. The Tennessee AG cites Times Mirror Co. v. Superior Court for the proposition that governor schedules and appointment calendars can fall within the privilege.

Background and statutory framework

The Little Hatch Act sits at Tenn. Code Ann. §§ 2-19-201 through -208 and broadly prohibits use of state resources for campaign purposes. Its scope is limited by the carve-outs in § 2-19-201(3), which on their face permit popularly elected officials, qualified candidates, the Governor's cabinet, and the Governor's staff to engage in campaign activity using state resources, except as § 2-19-202 separately constrains.

The Campaign Financial Disclosure Act (1980) imposes broad disclosure on candidates and political campaign committees: every contribution received and every expenditure made must be reported. The definitions are sweeping, designed to catch in-kind contributions like the use of state property if it has measurable campaign value.

The TPRA, § 10-7-503, supplies the general default that government records are public unless another law says otherwise. The deliberative-process privilege is a non-statutory exception, traced to U.S. Supreme Court cases and applied in many state contexts.

Citations

• Tenn. Code Ann. §§ 2-19-201 to -208 (Little Hatch Act)
• Tenn. Code Ann. § 2-19-206 (general prohibitions on state-property campaign use)
• Tenn. Code Ann. § 2-19-201(3) (exemption for elected officials, candidates, cabinet, staff)
• Tenn. Code Ann. §§ 2-10-101 to -121 (Campaign Financial Disclosure Act)
• Tenn. Code Ann. § 2-10-102(4), (6) (definitions of "contribution" and "expenditure")
• Tenn. Code Ann. § 10-7-503 (TPRA)
• Hooker v. Sundquist, Davidson County Chancery Court No. 98-2748-I
• United States v. Nixon, 418 U.S. 683 (1974); Times Mirror Co. v. Superior Court, 813 P.2d 240 (Cal. 1991) (deliberative-process / executive privilege)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2016/op16-048.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
December 22, 2016
Opinion No. 16-48

Use of State Property for Campaign Related Activities

Question 1
Does state law prohibit elected state officials from using state property, including the Executive Residence, for campaign-related activities?

Opinion 1
No, state law does not prohibit elected state officials from using state property, including the Executive Residence, for campaign-related activities.

Question 2
If state law does not prohibit elected state officials from using state property for campaign-related activities, does state law require an accounting of any and all expenditures incurred for such campaign-related activities on state property?

Opinion 2
Yes, Tennessee's Campaign Financial Disclosure Act would require the disclosure of such expenditures if they constitute either a "contribution" or an "expenditure" as defined under the Act.

Question 3
Does state law require the public disclosure of the Governor's non-personal schedule, including non-personal events hosted at the Executive Residence?

Opinion 3
To the extent that the Governor's non-personal schedule, including events at the Executive Residence, meets the definition of "public record" as set forth in Tenn. Code Ann. § 10-7-503(a)(1)(A), then it is subject to disclosure under Tennessee's Public Records Act, unless a state law provides otherwise.

ANALYSIS

1. Use of State Property for Campaign-Related Activities

Tennessee's "Little Hatch Act," governs the activities of public officers and employees with respect to elections and campaign-related activities. Tenn. Code Ann. §§ 2-19-201 - 208. It provides, in pertinent part, as follows:

(a) It is unlawful for any elected or appointed official of the state, or any employee of the state or any department, division or agency thereof, to display campaign literature, banners, placards, streamers, stickers, signs or other items of campaign or political advertising on behalf of any party, committee or agency or candidate for political office, on the premises of any building or land owned by the state, or to use any of the facilities of the state, including equipment and vehicles for such purposes.

(b) It is unlawful to use public buildings or facilities for meetings or preparation of campaign activity in support of any particular candidate, party or measure, unless reasonably equal opportunity is provided for presentation of all sides or views, or reasonably equal access to the buildings or facilities is provided all sides.

Tenn. Code Ann. § 2-19-206.

But it also specifically provides that "[p]opularly elected officials, officials elected by the general assembly, qualified candidates for public office, members of the governor's cabinet, and members of the governor's staff are expressly excluded from the provisions of [the Act] except for the provisions of § 2-19-202." Tenn. Code Ann. § 2-19-201(3) (emphasis added).

The interplay between § 2-19-206 and the specific exclusions in § 2-19-201(3) was directly addressed by the Davidson County Chancery Court in Hooker v. Sundquist, Davidson County Chancery Court No. 98-2748-I. In that case, Mr. Hooker challenged then-Governor Sundquist's use of the Executive Residence for a political fundraiser as violating Tenn. Code Ann. § 2-19-206. The Chancery Court found that the provisions of Tenn. Code Ann. § 2-19-201(3) controlled and, because the Governor is a popularly elected official, he was excluded from the prohibitions contained in § 2-19-206; those prohibitions did not apply. Accordingly, elected state officials are not prohibited from using state property for campaign-related activities. See also Op. Tenn. Atty. Gen. 02-114 (Oct. 16, 2002).

2. Accounting of Expenses for Use of State Property for Campaign-Related Activity

Expenses incurred by elected state officials in conducting campaign-related activities on state property may be required to be disclosed pursuant to the Campaign Financial Disclosure Act of 1980, Tenn. Code Ann. §§ 2-10-101 - 121. That Act requires each candidate for state or local public office or political campaign committee to regularly disclose all contributions received and all expenditures made by or on behalf of the candidate. See Tenn. Code Ann. § 2-10-105. A "contribution" is defined as

any advance, conveyance, deposit, distribution, transfer of funds, loan, loan guaranty, personal funds of a candidate, payment, digital currency, gift or subscription of money or like thing of value, and any contract, agreement, promise or other obligation, whether or not legally enforceable, made for the purpose of . . . nomination for election or the election of any person for public office or for the purpose of defraying any expenses of an officeholder incurred in connection with the performance of the officeholder's duties, responsibilities, or constituent services.

Tenn. Code Ann. § 2-10-102(4). An "expenditure" is defined as "a purchase, payment, distribution, loan, advance, deposit or gift of money or anything of value made for the purposes of . . . the nomination for election or election of any person to public office," as well as the "use of campaign funds by an officeholder for the furtherance of the office of the officeholder." Tenn. Code Ann. § 2-10-102(6).

Thus, to the extent that any expenses incurred in conducting campaign-related activities on state property meet the definition of either a "contribution" or an "expenditure," such expenses would have to be disclosed by the candidate or political campaign committee on the appropriate campaign financial disclosure report.

3. Disclosure of Non-Personal Events

Tennessee's Public Records Act in general provides for the disclosure of public records to Tennessee citizens, unless otherwise provided by state law. Tenn. Code Ann. § 10-7-503(a)(2)(A). A public record is defined as a record that is "made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental entity." Tenn. Code Ann. § 10-7-503(a)(1)(A). Accordingly, to the extent that the Governor's non-personal schedule, including events at the Executive Residence, meets this definition, then it is subject to disclosure under Tennessee's Public Records Act, unless a state law provides otherwise.

One state law that does provide otherwise is the common law deliberative process privilege, also referred to as the "executive privilege." Guy v. Judicial Nominating Com'n, 659 A.2d 777, 782 (Sup. Ct. Del. 1995); see also United States v. Nixon, 418 U.S. 683 (1974), and Hamilton v. Verdow, 414 A.2d 914 (Md. 1980). The executive privilege exempts from disclosure the deliberative and mental processes of the executive. Thus, to the extent that disclosure of events on the Governor's non-personal schedule would disclose the Governor's deliberative and mental processes, the Governor's non-personal schedule is protected from disclosure under the deliberative process/executive privilege. See, e.g., Times Mirror Co. v. Superior Court, 813 P.2d 240, 252 (Cal. 1991) (using terms "executive privilege" and "deliberative process privilege" interchangeably, the court holds that privilege protects Governor's appointment calendars and schedules).

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable John Ray Clemmons
State Representative
Suite 38 Legislative Plaza
Nashville, Tennessee 37243

The Honorable Lee Harris
State Senator
318 War Memorial Building
Nashville, Tennessee 37243