Can a Tennessee state-university employee run for elected office without violating the Hatch Act or Tennessee's Little Hatch Act?

Subject

Opinion No. 14-17, Employee of a State Institution of Higher Education Holding Elected Office, February 11, 2014

Plain-English summary

Senator John Stevens asked whether an employee of a Tennessee state institution of higher education can seek election or re-election to local or state office where (a) the employee's department isn't federally funded and (b) the employee already qualified as a "popularly elected official" before taking the higher-ed job. The AG said yes.

Two statutes are in play.

Federal Hatch Act, 5 U.S.C. §§ 1501-1508. Generally bars some state and local employees whose principal employment is in connection with federally funded programs from running for office. But § 1501(4)(B)(i) carves out an explicit exemption for "an individual employed by an educational or research institution which is supported in whole or in part by a State or political subdivision thereof." That covers Tennessee state university employees. Op. 85-253 (Sept. 30, 1985) said the same thing: the Hatch Act doesn't bar a state university faculty member from seeking elective office.

Little Hatch Act, Tenn. Code Ann. §§ 2-19-201 to -208. Includes educational institutions supported primarily by state funds in its definition of public employer (§ 2-19-201), and "popularly elected officials" are expressly excluded from the definition of "public officer or employee." The Little Hatch Act prohibits various types of political activity during work hours, but it does not prohibit a public employee from seeking election or re-election. Whether the employee was previously a popularly elected official before joining higher-ed doesn't change the analysis: candidacy itself isn't banned.

The opinion is short and largely a confirmation of a 1985 prior opinion: state university employees can run, full stop.

Currency note

This opinion was issued in 2014. 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 federal Hatch Act was amended in 2012, easing some restrictions on state and local employees. Any analysis in a current situation should consult the latest version of 5 U.S.C. §§ 1501-1508.

Background and statutory framework

Hatch Act exemption, 5 U.S.C. § 1501(4)(B)(i). "[A]n individual employed by an educational or research institution which is supported in whole or in part by a State or political subdivision thereof" is not a "state or local officer or employee" within the meaning of the Act's restrictions on political activity.

Little Hatch Act framework, §§ 2-19-201 to -208. Defines "public officer or employee" to include employees of state-funded educational institutions (§ 2-19-201), with carve-outs for "popularly elected officials." Restricts certain political activities during work hours but not candidacy itself.

Tennessee Att'y Gen. Op. 85-253. Established that the Hatch Act does not bar Tennessee state university faculty from seeking elective office. Op. 14-17 reaffirms.

Common questions

Does this mean a state professor can hold any office?

Yes, in terms of legal eligibility under the Hatch Acts. There may be other restrictions (e.g., dual-office prohibitions, particular university policies, gubernatorial cabinet rules), but the Hatch Acts don't block candidacy.

Can a state employee campaign during work hours?

Generally no. The Little Hatch Act restricts political activity during work hours for covered public employees. The opinion is about candidacy, not on-the-clock campaigning. Different question.

Does federal funding to the department change anything?

For Hatch Act purposes, the university-employment exemption applies even if some federal funds flow to the department. § 1501(4)(B)(i) covers state educational employees as a category.

What if the employee is also drawing a salary from another government source?

Then the other employment may have its own restrictions. The Hatch Act exemption applies only to the educational-institution employment.

Citations

Federal: 5 U.S.C. §§ 1501-1508; 5 U.S.C. § 1501(4)(B)(i). Statutory: Tenn. Code Ann. § 2-19-201 to -208; § 2-19-201(3). Prior AG opinions: Tenn. Att'y Gen. Op. 10-94 (Aug. 27, 2010); Tenn. Att'y Gen. Op. 85-253 (Sept. 30, 1985).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-017.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL

February 11, 2014

Opinion No. 14-17

Employee of a State Institution of Higher Education Holding Elected Office

QUESTION

Can an employee of a state institution of higher education seek election or re-election to a local or state office if (1) there are no direct federal funds supervised by or used to fund the department, and (2) said person, outside of state employment, already meets or met the exempted description of "popularly elected official" under Tenn. Code Ann. § 2-19-201(3) prior to employment by the state institution of higher education?

OPINION

Yes. Such an employee is specifically exempted from the provisions of the federal Hatch Act, and the Little Hatch Act does not prohibit a state employee from seeking election or re-election.

ANALYSIS

Two statutory schemes are implicated by this question. The first is 5 U.S.C. §§ 1501 to 1508, known as the federal "Hatch Act." As this Office has previously observed, the Hatch Act prohibits certain state employees from running for office. See, e.g., Tenn. Att'y Gen. Op. 10-94 (Aug. 27, 2010). But 5 U.S.C. § 1501(4)(B)(i) specifically exempts "an individual employed by an educational or research institution . . . which is supported in whole or in part by a State or political subdivision thereof." Therefore, the Hatch Act does not bar an employee of a state institution of higher learning from running for office. See Tenn. Att'y Gen. Op. 85-253 (Sept. 30, 1985) (opining that the Hatch Act does not bar a state university faculty member from seeking elective office).

The second statutory scheme is Tenn. Code Ann. §§ 2-19-201 to -208, known as the "Little Hatch Act." The Little Hatch Act includes employees of any educational institution supported primarily by state funds within the definition of "public officers and employees" governed by the Act, but it expressly excludes "popularly elected officials." Tenn. Code Ann. § 2-19-201(3). While the Little Hatch Act contains various prohibitions against a public employee's political activity, it does not bar a public employee from seeking election or re-election, irrespective of whether the employee already meets or met the exempted description of a "popularly elected official" under Tenn. Code Ann. § 2-19-201(3) prior to employment by the state educational institution. See Tenn. Att'y Gen. Op. 85-253 (Sept. 30, 1985).

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Associate Solicitor General

MICHAEL K. MARKHAM
Senior Counsel

Requested by:

The Honorable John Stevens
State Senator
3 Legislative Plaza
Nashville, Tennessee 37243