What Happens when The Federal Hatch Act Conflicts with Washington State Law?

The Washington State Attorney General's Office has issued a number of Attorney General Opinion Letters in regard to the Hatch Act.

In summary, the Attorney General's Office tells us: "Some state or local governmental employees, whether covered by a state civil service law or not, may, because of federal funding related to their positions, be governed by an act of Congress commonly known as the "Hatch Act,"8/ together with rules and regulations of the United States civil service commission. Attached hereto, as Appendix D, you will find a copy of these governing regulations (5 C.F.R. § 151) which outline both permissible and prohibited activities with regard to the employees who are covered thereby. See, also, subsection (4) of RCW 41.06.250, which refers to those state civil service employees who are also governed by the federal act and states that their ". . . political activity will be regulated by the rules and regulations of the United States civil service commission."9/

ELECTIONS ‑- POLITICAL ADVERTISING ‑- HIGHWAYS ‑- EMPLOYMENT ‑- POLITICAL ACTIVITIES BY STATE OR LOCAL GOVERNMENTAL EMPLOYEES
The contents of political advertising as regulated by statute; the placement of campaign signs to be used in partisan political races; and participation by state or local governmental employees in both partisan and nonpartisan political campaigns, including the holding of political party offices.

AGO 1972 No. 7: http://www.atg.wa.gov/opinion.aspx?section=topic&id=6496

LEGISLATURE ‑- LEGISLATORS ‑- MAY STATE LEGISLATOR ALSO BE A STATE EMPLOYEE
Consideration of the eligibility of a member of the legislature to be employed by a state agency during the period of time the state legislature is not in session; applicability of Washington Constitution Article II, § 13; impact of federal Hatch Act and/or RCW 41.06.250 upon the applicability of such a legislator to campaign for reelection while serving as an employee of a state agency.

AGLO 1973 No. 37: http://www.atg.wa.gov/opinion.aspx?section=topic&id=15518

EMPLOYEES ‑- CIVIL SERVICE ‑- POLITICAL ACTIVITIES ‑- FEDERAL FUNDING
Repeal of RCW 41.06.250 (4) would have no impact on eligibility of state to continue receiving federal funding.

AGLO 1973 No. 15: http://www.atg.wa.gov/opinion.aspx?section=topic&id=15474

CIVIL SERVICE LAW ‑- COVERAGE OF STATE EMPLOYEES WHO ARE OFFICERS OF POLITICAL ORGANIZATIONS
State employees not covered by the Federal "Hatch Act" may be officers of organizations such as the Young Democrats, Young Republicans, etc., without violating the provisions of the state civil service law; but may not participate in the management of a partisan campaign.

AGO 61-62 No. 22: http://www.atg.wa.gov/opinion.aspx?section=topic&id=6164

________________________________________

Letters as printed on AG site

February 10, 1972

Honorable Stewart BledsoeState Representative, 13th DistrictLegislative BuildingOlympia, Washington 98504

Cite as: AGO 1972 No. 7

Dear Sir:
By separate letters previously acknowledged you have requested an opinion of this office outlining the scope of present laws affecting the following two aspects of political campaign activities:
(1) The contents of political advertising and the placement of campaign signs used in partisan political races;
(2) Participation by state or local governmental employees in both partisan and nonpartisan political campaigns, including the holding of political party offices.

ANALYSIS

Before proceeding to outline the information which you have requested, we believe that two preliminary remarks are in order ‑ the first of which pertains to the constitutionality of the various statutes to which we will refer below. It will, of course, be beyond the scope of this opinion to pass upon the constitutionality of any of these duly enacted statutes, for it has long been the policy of this office to presume the validity of any statute which has been enacted by our legislature until such time as it is held invalid by a court of competent jurisdiction. See, AGO 57-58 No. 13,1/ and other opinions cited therein. Thus, although we are aware of certain recent court decisions from other jurisdictions holding particular statutes relating to political campaign activities to be unconstitutional ‑ primarily on 1st Amendment "freedom of speech"2/ grounds ‑ no attempt will be made herein to evaluate any of these decisions in terms of their possible impact upon our own state statutes in the event of a court challenge to their constitutionality.

Our second preliminary remark is in the nature of a caveat related to the scope of this opinion: Over and above the state statutes to be discussed herein, and the federal "Hatch Act" which will also be noted, any persons who may be involved in a political campaign ‑ as candidates or otherwise ‑ should at all times be conscious of the possibility that there may also be in effect in the particular geographic area in which they are operating certain local (county or city) ordinances pertaining to the activities in question. As an example of such local ordinances we have attached hereto, as Appendix B, a copy of a current King county ordinance regulating the use of political signs and posters. We trust that you will understand the impracticality of our attempting to search out and summarize every such local ordinance which might have some bearing upon the activities of political candidates in each of the numerous counties and cities of this state. Instead, therefore, we would simply call this factor to your attention as a means of alerting you to the possibility of these local ordinances.
We turn now to the essential subject matter herein; namely, a resume of existing statutes governing (a) political advertising and related matters; and (b) participation in political campaigns and activities by state and local governmental employees.


I. Political Advertising

There are four general and two special statutes to be noted under this heading. First to be considered is RCW 29.85.270 which provides that:
"All political advertising, whether relating to candidates or issues, however promulgated or disseminated, shall identify at least one of the sponsors thereof if the advertising is sponsored by other than the candidate or candidates listed thereon, by listing the name and address of the sponsor or sponsors on the material or in connection with its presentation. If a candidate or candidates run for partisan political office, they and their sponsors shall also designate on all such political advertising clearly in connection with each such candidate the party to which each such candidate belongs. The person or persons listed as sponsors of such advertising shall warrant its truth. The use of an assumed name shall be unlawful. Whenever any corporation sponsors political advertising, the name and address of the president of the corporation shall be listed on the material or in connection with its presentation."

In AGO 55-57 No. 157 [[to Secretary of State on November 7, 1955]], we concluded that this statute is applicable to both state and local political campaigns, partisan and nonpartisan, involving both candidates and measures. The two basic requirements of the statute are that all political advertisements (including signs, newspaper advertisements, and radio or television ads) shall (a) identify the sponsor or sponsors of the advertisement, if other than the candidate named therein; and (b) designate the political party (if any) with which the candidate is affiliated. Any violations of this statute are, according to RCW 29.85.280, gross misdemeanors
". . . and shall be subject to a fine of not more than one thousand dollars or imprisonment for not more than one year, or both."

Next to be noted is RCW 29.85.070, also of general applicability, which imposes the following constraints upon the substance or content of political advertising:
"Any person who in any way, directly or indirectly, by menace or other corrupt means or device, attempts to influence any person in giving or refusing to give his vote in any election, or deters or dissuages any person from giving his vote therein, or disturbs, hinders, persuades, threatens, or intimidates any person from giving his vote therein;or who at any such election, knowingly and wilfully makes any false assertion or propagates any false report concerning any person who is candidate thereat, which shall have a tendency to prevent his election, or with a view thereto, shall be guilty of a misdemeanor and, on conviction, shall be punished by a fine of not to exceed two hundred fifty dollars or by imprisonment for the term of six months, or by both." (Emphasis supplied.)

The third general provision of which all candidates and their supporters should be aware is RCW 29.51.020 which relates to political advertising activities at polling places on election days and provides that:
"No person shall do any electioneering, or circulate cards or handbills of any kind, or solicit signatures to any kind of petition on primary or election day within any polling place, or any building in which an election is being held, or within one hundred feet thereof, nor obstruct the doors or entries thereto, or prevent free ingress to and egress from said building. Any election officer, sheriff, constable, or other peace officer shall have power to and shall clear the passageway and prevent such obstruction, and arrest any person creating such obstruction.
". . ."

Last to be listed under the heading of political advertising, generally, is RCW 65.16.095 ‑ a statute which is aimed at protecting the purchasers of political advertising space in newspapers from rate discrimination ‑ as follows:
"The rate charged by a newspaper for advertising in relation to candidates for political office shall not exceed the national advertising rate extended to all general advertisers and advertising agencies in its published rate card."
The two "special" statutes to be here included (i.e., statutes dealing with special electoral situations) are RCW 29.79.490 and RCW 29.82.220. The first of these involves campaigns pertaining to a state initiative or referendum measure and provides, in pertinent part, as follows:
"Every person shall be guilty of a gross misdemeanor who:
". . .
"(2) Advertises in any manner that for or without consideration, he will solicit or procure signatures upon or influence or attempt to influence persons to sign or not to sign, to vote or not to vote upon an initiative or referendum petition or to vote for or against any initiative or referendum; or
". . .
"(6) Receives, handles, distributes, pays out or gives away, directly or indirectly, money or any other thing of value contributed by or received from any person, firm, association, or corporation whose residence or principal office is, or the majority of whose members or stockholders have their residence outside, the state of Washington, for any service rendered for the purpose of aiding in procuring signatures upon any initiative or referendum petition or for the purpose of aiding in the adoption or rejection of any initiative or referendum measure."

In AGO 1971 No. 6 [[to Secretary of State on February 2, 1971]], we concluded that subsection (6) is applicable to financing received from foreign corporations as well as those domestic corporations which have principal offices elsewhere or which have a majority of their members or shareholders residing elsewhere. A virtually identical set of prohibitions also appears in the second special statute above cited, RCW 29.82.230 ‑ except that this statute deals with recall campaigns against public officers rather than with initiative or referendum campaigns.

II.Political Signs and the Placement Thereof

Except for RCW 29.85.270, supra, dealing with the identification of sponsors and party affiliations in political advertising, there are no Washington statutes currently in effect which deal specifically with political advertising signs. However there are several statutes which regulate the placement of signs, generally. The first of these to be noted is RCW 9.61.040, a criminal statute which provides (in material part) that:
"Every person who shall wilfully‑-
". . .
"(14) Place upon or affix to any real property or any rock, tree, wall, fence or other structure thereupon, without the consent of the owner thereof, any word, character or device designed to advertise any article, business, profession, exhibition, matter or event; . . .
". . .
"Shall be guilty of a misdemeanor."
This statute, it will be seen, makes it a misdemeanor wilfully to place certain advertising signs or devices upon the private property of a landowner without the permission of the owner. We would think that an individual's candidacy for public office would consititute a "matter or event" under these provisions.

Conversely, another statute, RCW 9.61.010 (15), makes it a misdemeanor "wilfully or maliciously" to remove, damage or destroy any ". . . sign or notice erected or posted by . . . the owner or occupant of the premises where posted."3/

The next statute to be discussed with regard to the placement of signs, generally, (including political signs) is the highway advertising control act of 1961 (chapter 96, Laws of 1961), as modified by the scenic vistas act of 1971 (chapter 62, Laws of 1971, 1st Ex. Sess.) ‑ codified in chapter 47.42 RCW. The basic prohibition of this legislation, as currently set forth in § 3, chapter 62,supra, reads as follows:
"Except as permitted under this chapter, no person shall erect or maintain a sign which is visible from the main traveled way of the interstate system, the primary system, or the scenic system. In case a highway or a section of highway is both a part of the primary system and the scenic system, only those signs permitted along the scenic system shall be erected or maintained."4/
We have carefully examined this chapter in its entirety and are satisfied that none of the "exceptions" which it permits would cover ‑ and thereby excuse from compliance with the act ‑ the placement and erection of political advertising signs.5/

Another statute dealing with signs on or adjacent to state highways which should be considered is RCW 47.24.020. Subsection (3) of this statute, dealing with the jurisdiction of the state highway commission over city streets which are a part of our state highway system, provides that:
"The state highway commission shall have authority to prohibit the suspension of signs, banners, or decorations above the portion of such street between the curbs or portion used for highway purposes up to a vertical height of twenty feet above the surface of the roadway;"
Also to be noted is RCW 36.86.100 ‑ dealing with signs, generally ‑ which provides that:
". . . It shall be unlawful to erect or maintain a sign, signboard, or billboard at or near a county road or railroad and within a distance of five hundred feet from the point of intersection at grade of the road and railroad and in such a way that it may obstruct the view or distract the attention of a person operating a vehicle or train and approaching the crossing."

A parallel provision, RCW 47.32.140, flatly prohibits the erection or maintenance of any sign within five hundred feet of the intersection of a railroad right of way and astate highway, regardless of the tendency of such sign to obstruct the view of either railroad or automobile operators.
Another statute having a possible bearing upon the placement of political campaign signs is RCW 47.36.180. This statute forbids the erection or maintenance near any city street, county road, or state highway of any structure, sign or device which:
(a) Simulates a directional warning or danger signal, or which might be confused for one of the foregoing because it bears such words as "stop," or "slow," for example;
(b) Displays red, amber, green, or flashing lights which could result in its being confused with a traffic control device;
(c) Utilizes lights which tend to impair vision or which might be confused for another motor vehicle; or
(d) Utilizes any flood light which falls directly on a roadway.
Finally, we would call your attention to the provisions of RCW 46.61.075, which include a prohibition against placement of any sign which hides from view or interferes with any official traffic control devices.
By way of a brief summary of these several statutes relating to the placement of political signs, the following "shorthand" rules may be listed:
(1) No signs on private property without consent of the owner thereof;
(2) No removal of signs from private property where legally posted by the owner or occupant;
(3) No signs which are visible from a highway governed by chapter 47.42 RCW;
(4) No signs or banners suspended over a city street which is part of the state highway system if prohibited by the highway commission;
(5) No signs within five hundred feet of a county road ‑ railroad grade crossing which would obstruct vision or distract vehicle or train operators;
(6) No signs within five hundred feet of a state highway ‑ railroad grade crossing under any circumstances;
(7) No signs near any streets, roads or highways which might be confused for a traffic signal or could impair the vision of vehicle operators; and
(8) No signs hiding from view or interfering with any official traffic control devices.

III.Participation in Political Activities by Public Employees

No single statute currently in effect purports to govern the subject of participation in political campaigns or party organizations by all public employees in this state. Instead, the current state of the law in this area necessitates separate discussion of the status of each of five distinct categories of public employees.
A.State Civil Service Employees under Chapter 41.06 RCW
Those state employees covered by our general state civil service law (chapter 41.06 RCW)6/ are thereby governed, insofar as political activities are concerned, by the following provisions of RCW 41.06.250:
". . .
"(2) Employees shall have the right to vote and to express their opinions on all political subjects and candidates, but shall not hold any political party office or participate in the management of a partisan, political campaign. Nothing in this section shall prohibit a classified employee from participating fully in campaigns relating to constitutional amendments, referendums, initiatives, and issues of a similar character, and for nonpartisan offices.
"(3) Nothing in this section shall prohibit appointment, nomination or election to part time public office in a political subdivision of the state when the holding of such office is not incompatible with, nor substantially interferes with, the discharge of official duties in state employment.
"(4) For persons employed in state agencies the operation of which is financed in total or in part by federal grant-in-aid funds political activity will be regulated by the rules and regulations of the United States civil service commission."

In AGO 59-60 No. 171 [[to Sam Smith, State Representative on December 30, 1960]], we advised that this statute prohibits those state employees covered by the civil service act from serving either as precinct committeemen or as legislative district chairmen for a political party. In another opinion, AGO 61-62 No. 46 [[to Washington Public Service Commission on July 6, 1961]], we said that it also bars such state enployees from engaging in the management of apartisan political campaign (including their own as candidates); however, it permits such participation in nonpartisan campaigns and it further allows the covered state employees themselves to be elected or appointed to part-time offices in a political subdivision under certain circumstances.7/ On the other hand, in AGO 61-62 No. 22 [[to Ann O'Donnell, State Representative on April 14, 1961]], we concluded that this subsection does not prohibit state civil service employees from serving as officers in such organizations as the Young Democrats or the Young Republicans; i.e., political clubs which are not subject to control or regulation by the official party organization.

It is also important to note that this statute governing the political activities of state civil service employees is keyed to partisan political activities only; campaigns for nonpartisanoffices as well as those relating to constitutional amendments and likemeasures are expressly excluded from its prohibitions.

B.Civil Service Employees of Higher Education Institutions
Prior to 1969, the nonfaculty personnel of our state universities, colleges and community colleges were covered by chapter 41.06 RCW along with all other nonexempt state employees.

However, by its enactment of chapter 36, Laws of 1969, Ex. Sess., (now codified as chapter 28B.16 RCW) the legislature established a separate civil service system for these employees. Although many of the provisions of this 1969 act are either identical or very similar to the earlier chapter 41.06, there is no provision in this more recent personnel act which is comparable to RCW 41.06.250,supra.

Nevertheless, those employees now covered by the higher education personnel system are still limited with regard to political activities much as before. This is because, as we understand it, all of the employing colleges and universities had, prior to 1969, adopted regulations governing this subject which were closely patterned after RCW 41.06.250. By virtue of RCW 28B.16.210, the rules of each such institution will remain in effect until superseded by action of the higher education personnel board, and this new board has not yet enacted any rules relating to political activities. We are attaching as Appendix C a copy of rule 15.1 from the University of Washington as an example and you will note that it adopts the language of RCW 41.06.250, verbatim. We understand the applicable rules at the various other colleges and universities are quite similar if not identical.

C.State or Local Governmental Employees Covered by the Federal "Hatch Act"
Some state or local governmental employees, whether covered by a state civil service law or not, may, because of federal funding related to their positions, be governed by an act of Congress commonly known as the "Hatch Act,"8/ together with rules and regulations of the United States civil service commission. Attached hereto, as Appendix D, you will find a copy of these governing regulations (5 C.F.R. § 151) which outline both permissible and prohibited activities with regard to the employees who are covered thereby. See, also, subsection (4) of RCW 41.06.250, which refers to those state civil service employees who are also governed by the federal act and states that their ". . . political activity will be regulated by the rules and regulations of the United States civil service commission."9/

D. Employees of Local Governmental Entities
In considering this category of public employees it is first to be noted that because of federal funding, certain of these employees (like their state counterparts) may also be covered by the Hatch Act, supra. In addition there is in this area the very definite possibility of regulation by local charter or ordinance ‑ depending upon where the employees work and by whom they are employed.

As far as state statutes are concerned, we first note three virtually identical statutes dealing, respectively, with city firemen, city police officers, and deputy county sheriffs who are covered by the civil service systems provided for in chapters 41.08, 41.12 and 41.14 RCW.

(1)City Firemen
In any city which has established a civil service system for its firemen under chapter 41.08 RCW, these personnel will be governed with regard to their political activities by RCW 41.08.160, which provides as follows:
"No person holding any office, place, position or employment subject to civil service, is under any obligation to contribute to any political fund or to render any political service to any person or party whatsoever, and no person shall be removed, reduced in grade or salary, or otherwise prejudiced for refusing so to do. No public officer, whether elected or appointed, shall discharge, promote, demote or in any manner change the official rank, employment or compensation of any person under civil service, or promise or threaten so to do, for giving or withholding, or neglecting to make any contribution of money, or services, or any other valuable thing, for any political purpose."

(2)City Police Officers
An identical prohibition to that contained in RCW 41.08.160 appears in RCW 41.12.160 with regard to city police officers in cities which have established a civil service system for such personnel under chapter 41.12 RCW.

(3)Deputy Sheriffs
The personnel in a county sheriff's office who are covered by the civil service system established by chapter 41.14 RCW, are governed, in terms of their political activities by RCW 41.14.190, which provides:
"No person holding any office, place, position, or employment subject to civil service, shall contribute to any political fund or render any political service to any person or party whatsoever, and no person shall be removed, reduced in grade or salary, or otherwise prejudiced for refusing so to do. No public officer, whether elected or appointed, shall discharge, promote, demote, or in any manner change the official rank, employment, or compensation of any person under civil service or promise or threaten so to do for giving or withholding, or neglecting to make any contribution of money, or service, or any other valuable thing, for any political purpose."

The following significant difference between the two identical statutes relating to firemen and police officers and the third relating to deputy sheriffs should be noted: While both RCW 41.08.160 and RCW 41.12.160 make it clear that neither of the two categories of municipal employees who are covered by these statutes shall be under anyobligation to contribute to any political fund or to render political services to any person or party, neither of these statutes purport to prohibit voluntary contributions or services; however, because of a difference in wording which may not be readily apparent upon a casual reading, the statute relating to deputy sheriffs, RCW 41.14.190, does prohibit both involuntary and voluntary political contributions or services.

Also to be noted under this heading is RCW 35.17.160, which covers appointive officers or employees of cities operating under the commission form of government and provides that:
"Any appointive officer or employee of the city who in any manner exerts his influence to induce other officers or employees of the city to favor any particular candidate for any city office or who contributes anything in any way to any person for election purposes shall be discharged by the commission."
Finally, see RCW 38.32.120, relating to local civil defense organizations, which states that:
"No organization for civil defense established under the authority of this chapter shall participate in any form of political activity, nor shall it be employed directly or indirectly for political purposes."

E.Other State or Local Governmental Employees
The final category of public employees to be noted includes all of those who are not covered by any of the foregoing state or federal laws or regulations ‑ or by any applicable local governmental charter or ordinance provisions or regulations. In the case of these employees, there are no legal impediments to their participation in any of the sorts of political activity, either partisan or nonpartisan, to which you have referred in your request for our opinion on this subject. We underscore "legal" because, of course, these personnel serving largely at the discretion of their respective appointing authorities may well be required by reason of internal policy established by their employers to refrain from certain designated types of political activity.

IV.Certain Campaign Contributions
In closing we should like to bring to your attention two statutes dealing with the financing of political campaigns which should be kept in mind by any candidates for partisan political office in this state. The first of these is subsection (1) of RCW 41.06.250, supra. Although this provision is contained in our state employees' civil service law we omitted it from the quotation of RCW 41.06.250 when we were considering this statute from the standpoint of that category of employees only, for this subsection has a much broader application; it reads as follows:
"(1) Solicitation for or payment to any partisan, political organization or for any partisan, political purpose of any compulsory assessment or involuntary contribution is prohibited. No person shall solicit on state property any contribution to be used for partisan, political purposes."
In an opinion dated September 16, 1968, to State Senator R. Frank Atwood, copy enclosed, we advised that this statute prohibits any person from soliciting on state property any contribution to be used for partisan political purposes ‑ irrespective of whether either the solicitor or the person being solicited is a state civil service employee.

The other statute in this area which we would point out is RCW 43.30.110, prohibiting contributions in aid of political parties or candidates by insurers or fraternal benefit societies as follows:
"(1) No insurer or fraternal benefit society doing business in this state shall directly or indirectly pay or use, or offer, consent or agree to pay or use any money or thing of value for or in aid of any political party; nor for or in aid of any candidate for political office, nor for the nomination for such office; nor for reimbursement or indemnification of any person for money or property so used.
"(2) Any individual who violates any provision of this section, or who participates in, aids, abets, advises, or consents to any such violation, or who solicits or knowingly receives any money or thing of value in violation of this section, shall be guilty of a gross misdemeanor and shall be liable [[Orig. Op. Page 18]] to the insurer or society for the amount so contributed or received."
This completes our resume of the laws governing those areas of political campaign activities which you asked us to review. It is hoped that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON Attorney General
THOMAS F. CARR Assistant Attorney General


*** FOOTNOTES ***
1/Copies of this and other prior opinions cited herein are attached hereto as Appendix A.
2/See, United States Constitution, Amendment I, applicable to the states through the due process clause of Amendment XIV. Several of these recent court decisions are discussed in AGO 65-66 No. 103 [[to Ray Olsen, State Representative on August 18, 1966]], relating to certain then proposed regulations of the state liquor control board regarding the activities of distillery representatives, at pp. 17-23.
3/Moreover, in addition to these statutory criminal restraints, it should be understood that the activities of any persons entering upon, or damaging the property of others without their consent will also be subject to the common-law principles of trespass and the possibility of civil liability for damages resulting therefrom.
4/We understand that informational maps regarding those highways which currently fall within the purview of chapter 47.42 RCW may be obtained from the department of highways.
5/In connection with this legislation it is also to be noted that RCW 47.42.070, a part of the highway advertising act of 1961 which was left intact by the 1971 act, provides that:
"Nothing in this chapter shall be construed to permit a person to erect or maintain any sign that is otherwise prohibited by statute or by the resolution or ordinance of any county, city, or town of the state of Washington."

See, again, ourcaveat regarding the possibility of local ordinances, above.

6/See, RCW 41.06.070 for a listing of those categories of state employees who are excluded from this civil service system; all not thus excluded are covered.
7/Insofar as AGO 61-62 No. 46 further concluded that this provision applies even in the case of a civil service employee who has taken a leave of absence without pay, it appears no longer to be correct. See,Maxie v. Dept. of Public Assistance, Personnel Board Docket No. 113 (1966), wherein the state personnel board made reference to another statute, RCW 41.04.120, and concluded as follows:
"In order for RCW 41.04.120 to have effect together with RCW 41.06.250 (2), state employees must be entitled to leaves of absence without pay to run for political office under reasonable conditions and circumstances similar to those considered when granting all other leaves of absence in accordance with MSR 356.12.130."

RCW 41.04.120, thus relied upon, provides that:
"Any civil service employee of the state of Washington or of any political subdivision thereof who is on leave of absence by reason of having been elected or appointed to an elective office shall be preserved in his civil service status, his seniority, rank and retirement rights so long as he regularly continues to make the usual contribution incident to the retention of such beneficial rights as if he were not on leave of absence: Provided, That such contributions being made shall be based on the rank at the time of taking such leave of absence."
8/80 Stat. 403, now codified as 5 U.S.C. §§ 1501-1508.

9/While beyond the scope of your specific request, we note that by virtue of the Hatch Act, supra, the political activity of most federal employees is also governed by the rules and regulations of the United States Civil Service Commission. We attach as Appendix E the current regulations governing the political activity of federal employees.
________________________________________

March 20, 1973
Honorable Robert S. O'BrienState TreasurerLegislative BuildingOlympia, Washington 98504

Cite as: AGLO 1973 No. 37

Dear Sir:
This is written in response to your recent letter requesting our opinion on the following question:
". . . Can a member of the state legislature be employed by a state agency during the period of time the legislature is not in regular or special session? . . ."
We respond to this question in the manner set forth in the following analysis.

ANALYSIS

As you have previously been advised by a memorandum opinion dated March 23, 1972 (copy enclosed), there is no legal prohibition of general applicability against a member of the Washington legislature simultaneously serving as an employee of a state agency such as the treasurer's office ‑ assuming (a) his physical ability to perform both jobs;1/ and (b) his disclosure of this employment to the ethics board of the house to which he belongs.2/ We hereby reiterate and affirm this conclusion, noting, however, in so doing that we are not here concerned with any problem of possibly incompatible public offices since your question by its terms is limited to a mereemployment of a legislator by a state agency.3/ Nor, for this same reason are we here concerned with the possibility of a violation of Article II, § 13 of our state Constitution, which provides that:
"No member of the legislature, during the term for which he is elected, shall be appointed or elected to any civil office in the state, which shall have been created, or the emoluments of which shall have been increased, during the term for which he was elected."

This provision, notably, was the sole basis for our ruling in AGO 57-58 No. 75 [[to George C. Starlund, Assistant Director, Department of Licenses on June 4, 1957]], copy enclosed, to which you have made verbal reference in terms of this office having previously indicated a legal barrier against the service of a former legislator on the state barber examining committee. Accordingly it will be seen that we did not there enunciate any sort of a general and permanent prohibition against even this instance of dual office holding. Instead, we simply advised that because the newly created positions on the barber examining committee (see, chapter 101, Laws of 1957) constituted "civil offices" within the meaning of Article II, § 13, supra, no person who was a member of the legislature at the time it was established could, during the remainder of his legislative term, also serve as a member of this committee.

While thus affirming our previous advice to you we should, however, make some reference here to the possibility of a peripheral problem respecting the employment of a legislator by a state agency ‑ in each of two different contexts.

In his status as a state employee it is first possible that the subject individual in a given case might occupy a position in the classified civil service under chapter 41.06 RCW ‑ thereby bringing into play the following language of RCW 41.06.250 (2):
". . .
"(2) Employees shall have the right to vote and to express their opinions on all political subjects and candidates, but shall not hold any political party office or participate in the management of a partisan, political campaign. . . ."
The important point to be noted with respect to this statute is that while it does not prohibit even a state civil service employee from simultaneously holding a partisan elective office (as distinguished from "any political party office") it does prohibit such a civil service employee from participating in the management of a partisan, political campaign ‑ including his own campaign for election or reelection to a partisan, elective office. See, AGO 61-62 No. 146 [[to Robert Benethy, State Representative on July 18, 1962]], copy enclosed.4/

The other context in which a similar restriction would exist would be that of a state employee whose activities are such as to result in his being covered by the federal "Hatch Act," now codified as 5 U.S.C. §§ 1501-1508. While this act applies primarily to officers and employees of the federal government, it also applies to a state officer or employee (according to information provided to us by the United States Civil Service Commission)
". . . if, as a normal and foreseeable incident to his principal job or position, he performs duties in connection with an activity financed in whole or in part by Federal loans or grants; . . ."
Among the provisions of this federal act is one which is quite similar to RCW 41.06.250 (2),supra, and states that a state or local officer or employee who is covered by the act may not
". . .
"(3) take an active part in political management or in political campaigns."5/
Like our own statute, we understand that this provision has been construed by the civil service commission not to require a person to resign from a partisan elective office in order to serve in a covered state or local governmental employment. It does, however, similarly restrict his ability to seek election or reelection to such an office while continuing to hold a position in state employment the acceptance of which caused the individual to be covered by the federal act.

Thus, in summary, our answer to your question is as follows:

There is no legal prohibition of general applicability against a member of the state legislature also serving as an employee of a state agency ‑ and this is true even though the position in question may be covered either by chapter 41.06 RCW (state civil service) or by the federal Hatch Act, or both. If, however, either of these laws does apply in a given case, the person involved will not be able to campaign for reelection to his legislative office while continuing to serve in such position.6/

We trust that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON Attorney General
PHILIP H. AUSTIN Deputy Attorney General

Footnotes
1/Your present request largely avoids this problem by limiting the individual's period of employment with a state agency to times when the legislature is not in session.
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January 29, 1973

Honorable Rick SmithState Representative, 23rd DistrictLegislative BuildingOlympia, Washington 98504

Cite as: AGLO 1973 No. 15

Dear Sir:
By recent letter you have directed our attention to RCW 41.06.250, governing political activities by state civil service employees which provides, in material part, as follows:
". . .
"(2) Employees shall have the right to vote and to express their opinions on all political subjects and candidates, but shall not hold any political party office or participate in the management of a partisan, political campaign. Nothing in this section shall prohibit a classified employee from participating fully in campaigns relating to constitutional amendments, referendums, initiatives, and issues of a similar character, and for nonpartisan offices.
"(3) Nothing in this section shall prohibit appointment, nomination or election to part time public office in a political subdivision of the state when the holding of such office is not incompatible with, nor substantially interferes with, the discharge of official duties in state employment.
"(4) For persons employed in state agencies the operation of which is financed in total or in part by federal grant-in-aid funds political activity will be regulated by the rules and regulations of the United States civil service commission."

You have stated that you are interested in sponsoring a bill designed to amend this statute so as to delete the provisions of subsection (4) in its entirety. You are concerned, however, that such legislation might violate some federal requirement for state agency funding in accordance with the federal Hatch Act.

ANALYSIS

We have reviewed the Hatch Act (5 U.S.C. §§ 1501-1508) and related statutes and find nothing contained therein which would require a state, as a condition to eligibility for federal funding, to have a provision such as subsection (4) in its code of conduct for state civil service employees. Moreover, you might be interested in noting the fact that when, in 1969, the legislature removed the nonfaculty personnel of our state universities, colleges and community colleges from the coverage of chapter 41.06 RCW and, instead, established a separate civil service system for these personnel by its enactment of chapter 36, Laws of 1969, Ex. Sess., it omitted the inclusion of any form of counterpart to RCW 41.06.250,supra. See, AGO 1972 No. 7, copy enclosed, at pages 12 and 13, in which we also thereafter discussed the status of those state or local governmental employees who are, by the nature of the activities in which they are engaged, covered by the federal Hatch Act with respect to their political activities.

Obviously, of course, the Hatch Act restrictions themselves will continue to apply to those state or local employees who are subject to its provisions ‑ irrespective of whether the bill you are considering is enacted or not. However, we do not believe that the enactment of this bill would have any effect upon the continuing eligibility of the state of Washington or its agencies for federal funding.

It is hoped that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON Attorney General
PHILIP H. AUSTIN Deputy Attorney General

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April 14, 1961
Honorable Ann O'DonnellState Representative, 37th District1815 E. Harrison - Seattle, Washington

Cite as: AGO 61-62 No. 22

Dear Miss O'Donnell:
By letter previously acknowledged you requested an opinion of this office on the following question:

May a state employee be an officer of an organization such as the Young Democrats, Young Republicans, Young Men's Democratic Club, and the Young Men's Republican Club without violating the provisions of the State Civil Service Law?

We answer your question in the affirmative subject to the qualifications noted below.

ANALYSIS

Initiative 207 establishes a comprehensive civil service law for state employees. Section 25 of the Initiative reads as follows:

"(1) Solicitation for or payment to any partisan, political organization or for any partisan, political purpose of any compulsory assessment or involuntary contribution is prohibited. No person shall solicit on state property any contribution to be used for partisan, political purposes.


"(2) Employees shall have the right to vote and to express their opinions on all political subjects and candidates, but shall not hold any political party office or participate in the management of a partisan, political campaign. Nothing in this section shall prohibit a classified employee from participating fully in campaigns relating to constitutional amendments, referendums, initiatives, and issues of a similar character, and for non-partisan offices.

"(3) Nothing in this section shall prohibit appointment, nomination or election to part-time public office in a political subdivision of the state when the holding of such office is not incompatible with, nor substantially interferes with, the discharge of official duties in state employment.

"(4) For persons employed in State Agencies the operation of which is financed in total or in part by Federal grant-in-aid funds political activity will be regulated by the rules and regulations of the United States Civil Service Commission." (Emphasis supplied.)

As you will note, the political activity of employees of state agencies receiving federal funds is governed by federal regulations. These federal regulations allow employees to join political clubs such as you have mentioned but prohibit such employees from participating in the administration of affairs of the organizations such as serving as an officer or on a committee thereof. See Federal Personnel Manual, Chapters 2-7, and United States Civil Service Commission Pamphlet 20, page 11 (1951).

The provisions of Initiative 207 applicable to other state employees, however, are not so restrictive. State employees may not beofficers of political parties nor may they participate in themanagement of apartisan political campaign.

In AGO 59-60 No. 171 [[to Sam Smith, State Representative on December 30, 1960]]we held that a state employee covered by Initiative 207 could not be a precinct committeeman or a district chairman without violating the provisions of the Initiative because such offices were offices of a political party within the meaning of the prohibition set forth above.

In our opinion it is necessary in order to answer your question to determine whether clubs such as you mention in your request are political parties, or whether the officers of such clubs are officers of a political party or must necessarily participate in the management of partisan campaigns.

(1) Are these organizations political parties?
We are informed, and we presume our information is correct, that these organizations are not subject to control or regulation by the official party organization. The clubs do not nominate candidates for political office nor do persons campaign for such offices as candidates of such organization. Each club has its own constitution and may, within its own organizational structure, change its purposes, policies, and name without the consent or permission of any other group. While the members of such clubs may share political views in common, their purpose is other than to function as a political party as that term is usually and normally used.

In our opinion the restriction placed upon state employees must be limited to political parties in the ordinary, usual and common meaning of that term. Cochran v. Nelson, 26 Wn. (2d) 82, 173 P. (2d) 769 (1946). It could hardly be contended that these clubs are each separate political parties. SeeCooper v. Cartwright, 200 Okla. 456, 195 P. (2d) 290 (1948); Swindall v. State Election Board, 168 Okla. 97, 32 P. (2d) 671 (1934);Chambers v. I. Ben Greenmon Ass'n., 58 N.Y.S. (2d) 637 (1945); andHarrell v. Sullivan, 220 Ind. 108, 40 N.E. (2d) 115 (1942).

(2) Are officers of such organizations officers of a political party?
We have been informed, and we again presume our information is correct, that the officers of organizations such as you mention are not ex officio officers of the political party organization; that the election and qualifications of officers are governed by the charters or constitutions of the clubs and not by the official party organization; that the officers of the clubs are not, by reason of their office, delegated authority by the official organization to perform the functions of the party organization. With these facts in mind, it is our opinion that the officers of the organizations such as you mention are not officers of a political party within the meaning of the prohibition set forth above.

(3) Must the officers of such organizations participate in the management of partisan political campaigns?

In our opinion the answer to this question is within the sole determination of the particular club. Their officers may or may not be required to participate in the management of such campaigns as each club may determine.

In answering this question we must point out that we are not here concerned with the fact that many of the officers of such clubs are often called upon to assist in the management of partisan campaigns. In our opinion it is clear that a state employee may not so participate. All we here note is that an officer of an organization such as you mention is not required because of his office to participate in management prohibited by the Civil Service Law unless the club should so determine. The fact that an organization may choose to elect a person so restricted is a matter for the organization to decide.

This opinion should not be read, however, as a means of circumventing the Civil Service Law. Should a political party delegate to an organization such as you mention, the duties normally and usually performed by the party, or should the official party organization attempt to integrate the club into the party organizational structure, the premises on which this opinion is based would be substantially changed and the conclusions hereinabove stated would not be supportable.

We trust the foregoing will be of assistance to you.
Very truly yours,

JOHN J. O'CONNELL Attorney General
R. TED BOTTIGER Assistant Attorney General

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Interesting tidbits:

According to FindLaw, State courts are bound then to give effect to federal law when it is applicable and to disregard state law when there is a conflict; federal law includes, of course, not only the Constitution and congressional enactments and treaties but as well the interpretations of their meanings by the United States Supreme Court. While States need not specially create courts competent to hear federal claims or necessarily to give courts authority specially, it violates the supremacy clause for a state court to refuse to hear a category of federal claims when the court entertains state law actions of a similar nature.

According to LectLaw, Under the Supremacy Clause, everyone must follow federal law in the face of conflicting state law. It has long been established that "a state statute is void to the extent that it actually conflicts with a valid federal statute" and that a conflict will be found either where compliance with both federal and state law is impossible or where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

Edgar v. Mite Corp., 457 U.S. 624, 631 (1982). Similarly, we have held that "otherwise valid state laws or court orders cannot stand in the way of a federal court's remedial scheme if the action is essential to enforce the scheme."

Stone v. City and County of San Francisco, 968 F.2d 850, 862 (9th Cir. 1992), cert. denied, 113 S. Ct. 1050 (1993). Due to concerns of comity and federalism, the scope of federal injunctive relief against an agency of state government must always be narrowly tailored to enforce federal constitutional and statutory law only.