Number 10. October 21, 1976

Number 10. October 21, 1976 Commissioner John Calhoun Department of Youth Services 73 Tremont Street Boston, Massachusetts Dear Commissioner Calhoun: You have requested my opinion on three specific questions of law, each raising the general question whether or not employees of your department may seek elective political office. You ask: 1. Does state or federal law prohibit a full-time state employee from seeking: (a) local, (b) state or (c) federal elective office? 2. Does state or federal law prohibit a full-time state employee from holding: (a) local, (b) state or (c) federal elective office? 3. Does the Department of Youth Services have the authority to promulgate a rule governing the ability of a full-time employee to seek or hold elective office? In answer to your first question, there is no state law which prohibits state employees from seeking elective office. The Federal Hatch Act (5 U.S.C. § 1502(a) (3)) does prohibit state employees from seeking elective office if the election is a partisan election, and the employee's principal job activity 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) Thus, to the extent that your employees are engaged in activities financed with federal funds, they violate the provisions of the Hatch Act if they seek partisan elective office. 1 In answer to your second question, neither the Hatch Act nor any other federal law forbids per se a state employee from holding an elective office. In this connection, however, note should be taken of two federal cases, Northern Virginia Regional Park Authority v. United States Civil Service Commission, 437 F. 2d 1346 (D.C. Cir.), cert, denied 403 U.S. 936 (1971) and In re Higginbotham, 340 F. 2d 165 (3d Cir.), cert, denied 382 U.S. 853 (1965), both of which concern types of political activities in which elective office holders holding state jobs covered by the Hatch Act may not engage. Turning to state law prohibitions on holding an elective office, G.L. c. 30, §21 provides that "a person shall not at the same time receive more than one salary from the treasury of the Commonwealth," and Article Two of Chapter Six of Part the Second of the Massachusetts Constitution further prohibits holding more than one position by certain elected officials. (The pertinent Article of the Constitution is attached as an addendum.) See iFederal law, however, permits state employees as defined above to seek a nonpartisan elective office. See 5 U.S.C. §1503. P.D. 12 103 generally Opinion of the Justices, 332 Mass. 759 (1955). Nevertheless, Massachusetts law does allow for unpaid leaves of absence on the request 3f certain elected officials. See, e.g., G.L. c. 31, §46E. Therefore, if your employees receive only one salary from the Commonwealth and do not trigger the specific prohibitions of the Massachusetts Constitution, they may hold elective office at any level. I answer your third question in the affirmative. In my opinion the Com- missioner of the Department of Youth Services does have the authority to promulgate a rule governing the ability of a full-time employee to seek or hold elective office. G.L. c. 18A, §1 provides in part that the Department: shall be under the supervision and control of a commissioner of youth services . . . [who] shall have full responsibility for the formulation and coordination of all of its functions. He shall appoint and may remove all employees in the department . . . in accordance with the provisions of chapter thirty-one. In my opinion, this statute includes authority to set personnel policies by rule, including a policy to govern Department employees' activities in seeking and holding political office. In drafting a rule on this subject, I suggest that you draw it narrowly to protect your employees' freedom of association and guarantee their right to equal protection of the laws. Two recent Supreme Judicial Court cases have dealt specifically with this mat- ter: O'Hara v. Commissioner of Public Safety, Mass. Adv. Sh. ( 1975) 990; and Boston Police Patrolmen's Association, Inc. v. Boston, Mass. Adv. Sh. (1975) 979. In the latter case, which concerned a Boston policeman who became a candidate for the office of City Councillor, the court referred with approval to Rule 34, §4(f) of the Police Department of the City of Boston, which states: Every member of the police department, upon becoming a can- didate for election to any office under the federal, state or city government, shall take a leave of absence without pay effective with the day he requests nomination papers or subscribes his statement of candidacy and continuing until whichever of the following first occurs: the election or his failure of nomination at the primary or preliminary election or his failure to become, or withdrawal as, a candidate for nomination. The court held that the above rule is consistent with both Massachusetts law and applicable constitutional provisions. Id. at 986-88. Very truly yours, FRANCIS X. BELLOTTI A ttorney General 104 P.D. 12