Opinion No. ( 1990 )

The Honorable Stanley Russ State Senator Post Office Box 787 Conway, AR 72032

Dear Senator Russ:

This is in response to your request for an opinion on whether there is any legal prohibition against a Conway Human Development Center filing for a position on the Faulkner County JP Court.

The federal Hatch Act, which is codified as 5 U.S.C. § 1501 et seq., must be considered in response to this question. The Hatch Act states that a state or local officer or employee covered by the act "may not be a candidate for elective office."5 U.S.C. § 1502(a)(3). The act applies to individuals whose principal employment by a state or local agency 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. 5 U.S.C. § 1501(4).

It should be noted, however, that non-partisan races or candidates for those races are exempted from the Hatch Act.

Responsibility for enforcement of the Hatch Act rests with the United States Civil Service Commission. This office is therefore not in a position to make any conclusive determinations with regard to the act's applicability. The foregoing should, however, offer guidance in addressing the issue with regard to a particular employee.

If, in fact, the federal Hatch Act is not applicable in this instance, reference should be made to the Governor's Policy Directive regarding state employee political activity. This Directive does not appear to prohibit one's filing for a position, nor are we aware of any other policy or state law imposing such a prohibition with regard to a Human Development Center employee. The Directive should, however, be consulted for guidance in connection with political activity, assuming that the federal Hatch Act is inapplicable.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.

[Attachment: AG Opinion 90-029 to Senator Steve Bell — in "system"] ____________

GOVERNOR'S POLICY

DIRECTIVE NUMBER: GPD — 9 DATE: January 1986 POLICY: State Employee Political Activity

1. State employees can, should and are encouraged to participate in the election process so long as assistance to candidates is rendered on the employee's own time and State property is not involved. Employees are not to endorse candidates, including the Governor, in their official capacity as State employees. A person's status as an employee of the State is public knowledge. Public endorsements of a candidate can easily be interpreted as endorsements of an official capacity.

2. The legal provisions can be briefly summarized as follows:

a. State employees are prohibited from engaging in partisan political activity during the hours they are performing work for and being paid by an agency of State government.

b. Political banners, posters or literature should never be allowed to be displayed on or in any State office.

c. Political bumper stickers or decals should never be displayed on or in State cars; State vehicles must not be used during or after working hours to promote or assist the candidacy of any person in any way. State employees may not display political advertising on personal vehicles when using these vehicles in the performance of official duties FOR WHICH THEY SHALL BE REIMBURSED BY THE STATE.

d. No State official (whether elected or appointed) shall assess employees for any political purpose or use threats or coercion to require or persuade an employee to contribute to a particular candidate or cause.

3. Requests for leaves or [of?] absence to work in campaigns should be submitted to the employee's department director. Each director should establish an internal policy as to whether such leave without pay shall be allowed in that department.

4. In addition to these prohibitions established by Arkansas law and by administrative policy, there are other specific limitations which apply to employees whose salaries are either partially or totally paid from federal funds. These rules are established by the Federal Hatch Act.

5. For specific questions about Arkansas Election Law, consult the Arkansas Political Practices Act or contact the Secretary of State's Election Division at 682-5070. Questions regarding the Federal Hatch Act as it relates to federally funded State employees may be answered by the Office of Special Council in Washington, DC. The phone number for that office is (202)653-7143.