September 27, 1988

Mr. Marlin W. Johnston Commissioner Texas Department of Human Services P. 0. Box 2960 Austin, Texas 78769
Dear Mr. Johnston: OpinionNo. JM-957
Re: Political activityby employees of the Texas Departmentof Human Services (RQ-1471)

You ask two questions regardingpolitical activity by employees of the Departmentof Human Services. First, YOU askwhether an employeemay 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 Wonpartisan 'I as that term isused in 5 U.S.C. section 1503. Political activity of officers and employees of the Departmentof Human Services (DHS)is governedby section 21.009 of the Human Resources Code which provides in pertinentpart:

(b) An officer or employeeof 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 shepleases and may expresshis or her opinionas 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 disciplinarymeasures authorizedby the department's rules.
Hum. Res. Code 5 21.009. The "federal restrictions on political activities" referred to in subdivision (b)above are found in the Hatch

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Act. 5 U.S.C. 5 1501et seq. Section 1502(a) (3)prohibits a state or local officer or employee from seeking elective office. Section 1501 (4)provides:

(4) 'Stateor local officer or employee' means anindividual employedby a State or local agencywhose principal employment is in connectionwith an activitywhich is financed inwhole or inpart by loans or grants made by the United States or a Federal agency, but does not include [certain exceptions not relevanthere]. 5 U.S.C. s 1501 (4). The determination ofwhether a particular individual's "principalemployment"brings him within that definition is a fact question. We do not resolve questions of fact in the opinionprocess. Attorney General OpinionJM-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 restrictionsof the remainder of the act. Before 1975, the terms of the Hatch Act prohibited the targeted individuals from holdingpoliticalparty offices. gee., Oklahoma

. United St&s&civil Service 127v (1947) commis- &2ll, 330 U.S. in 1974 Congress amended the statute so that *itHzz?Aot have that effect. The amendment deleted language thatprohibited state and local officers and employees from Vak[ing] an active part
. inpoliticalmanagement or in political campaigns." That languagehad been held to prohibit state employees from holding political party offices. &g Oklahoma suwra; E aelhardt v. United Stat F:Supp. 806, aff'd, Civjl rvice Commissjon, 197 304 F"zd .;82 (sz6l)i see also United Public Workers of America **V.** chQ, 330U.S. 75 (1947). The reason for the amendment is revealed in 1974United States Code Congressional andAdministrative News at page 5669,which states that the bill amends section 1502 of Title 5, United States Code "toprovide that State and local officers and employeesmay take an activepart in political management and inpolitical campaigns,except #at 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 8 171.022. However,

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rules adoptedby the Office of PersonnelManagement interpret the 1974 amendment as allowing state employees to hold party offices, includingelectiveparty offices. Those rules are found at Part 151,Title 5, Code of FederalRegulations. Section 151.101(i) defines "elective office" to mean "any officewhich isvoted upon at an election as defined at section 151.101(f),above, but does not j.Dgludewolitical -office." Section 151.111 sets out permissible activities for affectedpersonnel as includingparticipation "in all political activitynot specificallyrestricted by law and this part, including candidacy for office in a nonpartisan election *
. and midacv for wolltlcal n r v office." Finally, section 151.122(f) excepts from atke generalprohibition, candidacy "for a position of officer of a political party, delegate to a political convention,member of a National, State or local party committee 0f.a political party, or any similarposition." 5 C.F.R. 5 151.122(f).
We conclude that an officer or employee of the ment of Human Services Departmay run for the office of precinct chairman of a politicalpartywithout violating the Hatch Act.
You also ask whether the offices of county and precinct chairmanmay be considered %onpartisan" offices as defined by section 1503 of the Hatch Act. We assume that your question is promptedby the exclusion of nonpartisan offices from the Hatch Act8s restrictions. Section 1503provides:

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 representinga party any of whose candidates for Presidential elector received votes in the last preceding election at which Presidential electorswere selected. 5 U.S.C. g 1503.
As stated earlier,Texas candidates for the political party offices of county and precinct chairman are elected at the primary elections. The other candidatesnominated 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

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to the offices aboutwhich 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 Servicesmay run for the office of county precinct chairman without violating the Hatch Act.

Jzyh JIM MATTOX Attorney General of Texas
MARYNELLHR FirstAssistant Attorney General LCUMCCRHARY ExecutiveAssistantAttorney General
JUDGE ZOLLIE STHANLHY SpecialAssistant Attorney General
RICK GILPIN Chairman, Opinion Committee Preparedby Karen C. Gladney AssistantAttorney General

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