Can a state employee whose agency gets federal funds run for a political party office like precinct chairman?

Texas AG Opinion JM-957: Can a State Worker Run for Precinct Chair?

Plain-English summary

The federal Hatch Act limits political activity by government employees whose work is tied to federal money, and Texas applies those same limits to Department of Human Services employees. The agency's commissioner had a practical question: can one of his employees run for a political party office, county or precinct chairman, without breaking the law? The Attorney General's answer was yes.

The confusion is understandable, because the Hatch Act clearly bars these employees from running for elective public office, and in Texas the party chairman positions are actually filled by a vote at the primary. So at first glance it looks like running for precinct chair might be off-limits. But there is a key distinction between running for a government office and running for a party office, and federal law changed on exactly this point.

Before the mid-1970s, the Hatch Act did prohibit covered employees from holding political party offices. Then in 1974 Congress amended the Act, cutting out the language that had barred employees from taking an active part in political management and campaigns. The legislative history spelled out the new deal: covered state and local employees may now be active in political management and campaigns, with one exception, they still cannot be candidates for elective office. The federal Office of Personnel Management wrote rules interpreting this, and those rules make the point explicit. They define "elective office" to exclude political party office, they list running for a party office as a permitted activity, and they specifically carve out candidacy for a position like officer of a political party from the general ban.

Put together, that means the ban on "elective office" is about government offices, not party offices, even when the party office happens to be filled by an election. So a Department of Human Services employee can run for precinct chairman without running afoul of the Hatch Act.

The commissioner's second question asked whether county and precinct chairman could count as "nonpartisan" offices, which would exempt them from the Hatch Act under a separate provision. The Attorney General said no. Those chairmen are chosen at the party primaries, the same elections where the party picks its nominees for the general election, so they are partisan by definition and the nonpartisan exception does not fit. But this did not change anything, because the first answer already cleared the employee to run.

Currency note

This opinion was issued in 1988. 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 Hatch Act provisions governing state and local employees were significantly amended in the years after this opinion, and the federal reforms of the 1990s further loosened restrictions on the political activity of many covered employees. The Texas Department of Human Services was later reorganized into successor health and human services agencies, and the Human Resources Code and Election Code provisions cited here have been amended. Anyone weighing whether a public employee can run for a party or public office today should consult the current Hatch Act, Office of Personnel Management rules, and state statutes rather than the 1988 versions cited here.

Who this opinion affected (as of 1988)

Texas Department of Human Services employees: The opinion confirmed they could run for county or precinct party chairman without violating the Hatch Act.

Other federally funded state and local employees: The opinion's reasoning applied the 1974 Hatch Act amendment and OPM rules that distinguish party offices from elective public offices.

Agency personnel officers: The opinion clarified the line between permitted party political activity and prohibited candidacy for elective public office.

Common questions

Could a Human Services employee run for precinct or county chairman?
Yes. The Attorney General concluded that running for a political party office like precinct chairman does not violate the Hatch Act, even though the Act bars covered employees from running for elective public office.

Doesn't the Hatch Act ban these employees from running for office?
It bars them from running for elective public office. A 1974 amendment and the Office of Personnel Management rules make clear that political party offices are treated differently and are not covered by that ban.

Why doesn't it matter that Texas elects its party chairmen?
Because the federal rules define "elective office" to exclude political party office. Even though the chairman is chosen by a vote, it is a party position, not a government office, so the ban does not apply.

Are county and precinct chairman "nonpartisan" offices?
No. They are filled at the party primaries alongside the party's nominees for the general election, so the Hatch Act's nonpartisan exception does not apply. But that did not matter, because the employee could run anyway.

Background and statutory framework

Political activity of officers and employees of the Department of Human Services is governed by section 21.009 of the Human Resources Code, which provides that an officer or employee is subject to all applicable federal restrictions on political activities but retains the right to vote and to express opinions as a citizen, and that a violation is subject to discharge, suspension, or other discipline. The federal restrictions are the Hatch Act (5 U.S.C. section 1501 et seq.). Section 1502(a)(3) prohibits a covered state or local officer or employee from seeking elective office, and section 1501(4) defines a "State or local officer or employee" as an individual whose principal employment is in connection with an activity financed in whole or in part by federal loans or grants (with exceptions not relevant here). Whether a particular individual's principal employment brings him within that definition is a fact question the opinion did not resolve (Attorney General Opinion JM-413 (1986)); the opinion assumed the employees were covered.

Before 1975, the Hatch Act prohibited covered individuals from holding political party offices (Oklahoma v. United States Civil Service Commission, 330 U.S. 127 (1947); Engelhardt v. United States Civil Service Commission, 197 F. Supp. 806 (1961), aff'd, 304 F.2d 882; see also United Public Workers of America v. Mitchell, 330 U.S. 75 (1947)). In 1974, Congress amended the statute, deleting language that had prohibited state and local officers and employees from taking an active part in political management or in political campaigns, language that had been held to bar them from holding political party offices. The legislative history (1974 U.S. Code Congressional and Administrative News at 5669) states that the bill amends section 1502 to provide that state and local officers and employees may take an active part in political management and in political campaigns, except that they may not be candidates for elective office.

That statement is less than clear as applied in Texas, because Texas county and precinct party officers are elected (Election Code section 171.022). However, rules adopted by the Office of Personnel Management (5 C.F.R. Part 151) interpret the 1974 amendment as allowing state employees to hold party offices, including elective party offices. Section 151.101(i) defines "elective office" as any office voted upon at an election but excludes political party office. Section 151.111 lists permissible activities including candidacy for office in a nonpartisan election and candidacy for political party office. Section 151.122(f) excepts from the general prohibition candidacy for a position of officer of a political party, delegate to a political party convention, member of a national, state, or local committee of a political party, or any similar position. The Attorney General concluded that a DHS officer or employee may run for the office of precinct chairman of a political party without violating the Hatch Act.

On the second question, section 1503 provides that section 1502(a)(3) does not prohibit a covered employee from being a candidate in an election if none of the candidates is to be nominated or elected as representing a party any of whose candidates for presidential elector received votes in the last preceding presidential-elector election. Because Texas candidates for county and precinct chairman are elected at the primaries, where other candidates are nominated to represent their parties in the succeeding general election, the section 1503 nonpartisan exception cannot apply to those offices. Given the answer to the first question, however, this fact is of no consequence.

Citations

Statutory and regulatory authority:

• 5 U.S.C. section 1502 (Hatch Act prohibition on seeking elective office)
• 5 U.S.C. section 1503 (exception for nonpartisan elections)
• 5 U.S.C. section 1501 (definition of covered state or local officer or employee)
• Section 21.009, Human Resources Code (political activity of DHS officers and employees)
• Section 171.022, Election Code (election of county and precinct party chairmen)
• 5 C.F.R. section 151.122 (Office of Personnel Management exceptions, including candidacy for political party office)

Cases:

• Oklahoma v. United States Civil Service Commission, 330 U.S. 127 (1947) (U.S. Supreme Court; pre-amendment Hatch Act restrictions)
• United Public Workers of America v. Mitchell, 330 U.S. 75 (1947) (U.S. Supreme Court; Hatch Act restrictions on political activity)
• Engelhardt v. United States Civil Service Commission, 197 F. Supp. 806 (1961) (federal court; pre-amendment bar on holding party office), aff'd, 304 F.2d 882

Prior Attorney General opinions referenced: JM-413 (1986).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-957
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0957.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

September 27, 1988

Mr. Marlin W. Johnston
Commissioner
Texas Department of Human Services
P.O. Box 2960
Austin, Texas 78769

Opinion No. JM-957

Re: Political activity by employees of the Texas Department of Human Services (RQ-1471)

Dear Mr. Johnston:

You ask two questions regarding political activity by employees of the Department of Human Services. First, you ask whether an employee may become a candidate for the political party office of county or precinct chairman without violating 5 U.S.C. section 1502(a)(3). Further, you ask whether the offices of county and precinct chairman may be considered "nonpartisan" as that term is used in 5 U.S.C. section 1503.

Political activity of officers and employees of the Department of Human Services (DHS) is governed by section 21.009 of the Human Resources Code which provides in pertinent part:

(b) An officer or employee of the department is subject to all applicable federal restrictions on political activities. However, an officer or employee retains the right to vote as he or she pleases and may express his or her opinion as a citizen on all political subjects.

(c) An officer or employee of the department who violates a provision of this section is subject to discharge or suspension or other disciplinary measures authorized by the department's rules.

Hum. Res. Code section 21.009.

The "federal restrictions on political activities" referred to in subdivision (b) above are found in the Hatch Act. 5 U.S.C. section 1501 et seq. Section 1502(a)(3) prohibits a state or local officer or employee from seeking elective office. Section 1501(4) provides:

(4) 'State or local officer or employee' means an individual employed by a State or local agency whose principal employment is in connection with an activity which is financed in whole or in part by loans or grants made by the United States or a Federal agency, but does not include [certain exceptions not relevant here].

5 U.S.C. section 1501(4).

The determination of whether a particular individual's "principal employment" brings him within that definition is a fact question. We do not resolve questions of fact in the opinion process. Attorney General Opinion JM-413 (1986). Therefore, for the purpose of this opinion, we will assume that the employees about whom you inquire meet that definition and are included within the restrictions of the remainder of the act.

Before 1975, the terms of the Hatch Act prohibited the targeted individuals from holding political party offices. See Oklahoma v. United States Civil Service Commission, 330 U.S. 127 (1947). But in 1974 Congress amended the statute so that it does not have that effect. The amendment deleted language that prohibited state and local officers and employees from taking "an active part in political management or in political campaigns." That language had been held to prohibit state employees from holding political party offices. See Oklahoma, supra; Engelhardt v. United States Civil Service Commission, 197 F. Supp. 806, aff'd, 304 F.2d 882 (1961); see also United Public Workers of America v. Mitchell, 330 U.S. 75 (1947).

The reason for the amendment is revealed in 1974 United States Code Congressional and Administrative News at page 5669, which states that the bill amends section 1502 of Title 5, United States Code "to provide that State and local officers and employees may take an active part in political management and in political campaigns, except that they may not be candidates for elective office."

This statement of intent is less than clear when applied in Texas, because in this state county and precinct party officers are elected. Elec. Code section 171.022. However, rules adopted by the Office of Personnel Management interpret the 1974 amendment as allowing state employees to hold party offices, including elective party offices. Those rules are found at Part 151, Title 5, Code of Federal Regulations.

Section 151.101(i) defines "elective office" to mean "any office which is voted upon at an election as defined at section 151.101(f), above, but does not include political party office." Section 151.111 sets out permissible activities for affected personnel as including participation "in all political activity not specifically restricted by law and this part, including candidacy for office in a nonpartisan election and candidacy for political party office." Finally, section 151.122(f) excepts from the general prohibition candidacy "for a position of officer of a political party, delegate to a political party convention, member of a National, State or local committee of a political party, or any similar position." 5 C.F.R. section 151.122(f).

We conclude that an officer or employee of the Department of Human Services may run for the office of precinct chairman of a political party without violating the Hatch Act.

You also ask whether the offices of county and precinct chairman may be considered "nonpartisan" offices as defined by section 1503 of the Hatch Act. We assume that your question is prompted by the exclusion of nonpartisan offices from the Hatch Act's restrictions. Section 1503 provides:

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.

5 U.S.C. section 1503.

As stated earlier, Texas candidates for the political party offices of county and precinct chairman are elected at the primary elections. The other candidates nominated in those elections will represent their respective political parties in the succeeding general election. By its very terms, therefore, the exception in section 1503 cannot apply to the offices about which you inquire. Given our answer to your first question, however, this fact is of no consequence.

SUMMARY

An officer or employee of the Department of Human Services may run for the office of county precinct chairman without violating the Hatch Act.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Karen C. Gladney
Assistant Attorney General