Can a Tennessee public school teacher run for a partisan political office while still teaching, or do the state or federal Hatch Acts prohibit it?

Plain-English summary

Representative Johnny Shaw asked whether either the Tennessee Hatch Act or the federal Hatch Act prohibits a county school teacher from running as a candidate for partisan political office. The AG addressed each separately.

Tennessee's Little Hatch Act (Tenn. Code Ann. § 2-19-201 et seq.). Designed to prevent political intimidation, coercion, and the use of public position or public resources for political ends. It applies to "public officers and employees," and the definition includes teachers. The Act restricts what teachers may do while running or supporting a campaign:

• No intimidating, coercing, or commanding other officers or employees about how to vote. § 2-19-202(a).
• No promising public-fund benefits as a political reward. § 2-19-204.
• No threatening to deprive a person of public employment or other public-fund benefits because of political activity. § 2-19-205.
• No using LEA-owned buildings, land, equipment, or vehicles for campaign or political advertising. § 2-19-206(d)(2).
• No engaging in campaign activity during school duty hours. § 2-19-207(c)(2).

But none of those provisions prohibits a teacher from running for partisan office. The Little Hatch Act regulates how a teacher campaigns, not whether the teacher can be a candidate. So a county teacher may qualify and run, as long as he or she complies with the campaigning restrictions.

The federal Hatch Act (5 U.S.C. §§ 1501-1508). Generally prohibits state or local employees who work in connection with federally funded programs from being candidates for partisan elective office. § 1502(a)(3). But the definition of "state or local officer or employee" in § 1501(4)(B) expressly excludes "an individual employed by an educational or research institution, establishment agency, or system which is supported in whole or in part by a State or political subdivision thereof." Legislative history confirms the exclusion was meant to cover teachers. Special Counsel v. Suso, 26 M.S.P.R. 673, 678 (1985) (citing H.R. Rep. No. 2296, 77th Cong., 2d Sess. (1942)). So the federal Hatch Act's candidacy bar does not apply to a public school teacher.

Important procedural point. Only the U.S. Office of Special Counsel (OSC) is authorized to issue advisory opinions on Hatch Act questions. 5 U.S.C. § 1212(f). The AG's analysis is the AG's view but is not binding on OSC. A teacher planning to run for partisan office should contact OSC directly to confirm the federal Hatch Act analysis. OSC contact: phone (800) 85-HATCH, fax (202) 254-3700, email [email protected].

Currency note

This opinion was issued in 2017. 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.

Background and statutory framework

Tennessee's Little Hatch Act. Codified at Tenn. Code Ann. § 2-19-201 et seq. Aim: to prevent political intimidation or coercion of or by public officers or employees. § 2-19-202(b). Teachers fall within the definition of "public officers and employees." § 2-19-201(3).

What the Act prohibits. Conduct restrictions, not candidacy restrictions.

• Using official position, authority, or influence to intimidate, coerce, or command other officers or employees about how to vote. § 2-19-202(a).
• Promising public-fund benefits as political consideration. § 2-19-204.
• Depriving or threatening to deprive a person of employment or public benefits because of political activity. § 2-19-205.
• Using LEA buildings, land, equipment, or vehicles for campaign or political advertising on behalf of any party, committee, or candidate. § 2-19-206(d)(2).
• Engaging actively in a political campaign, attending political meetings or rallies, or performing political campaign duties during the hours of the day when the teacher is required to be performing school duties. § 2-19-207(c)(2).

What the Act doesn't do. It doesn't bar a teacher from qualifying as a candidate or from running for partisan office on his or her own time.

The federal Hatch Act candidacy bar. 5 U.S.C. § 1502(a)(3) prohibits a state or local officer or employee from being a candidate for partisan elective office if that employee works in connection with a federally funded program or activity.

The teacher exclusion. 5 U.S.C. § 1501(4)(B) excludes from the definition of "state or local officer or employee" any "individual employed by an educational or research institution, establishment agency, or system which is supported in whole or in part by a State or political subdivision thereof." Because public school teachers are employed by an educational system supported by a state political subdivision, they are not "state or local officers or employees" for federal Hatch Act purposes. Special Counsel v. Suso, 26 M.S.P.R. 673, 678 (1985), and the 1942 House Report (No. 2296, 77th Cong., 2d Sess.) confirm the legislative intent that the exclusion cover teachers.

Only OSC issues authoritative Hatch Act opinions. 5 U.S.C. § 1212(f). The AG flagged that any individual teacher who intends to run for partisan office should obtain a written advisory opinion from OSC before filing. The AG can analyze the statute but cannot pre-clear an individual's candidacy under the federal Hatch Act.

Common questions

Q: I'm a Tennessee public school teacher. Can I run for the state legislature or a county office?
A: According to this opinion, Tennessee's Little Hatch Act does not prohibit you from running. You must follow the Little Hatch Act's rules on what you can do as a teacher (no campaigning during school duty hours, no use of school property or equipment for campaign purposes, no intimidation of coworkers). The federal Hatch Act also does not bar a teacher from candidacy because teachers are excluded from the relevant definition. But contact OSC for a federal advisory opinion before relying on that analysis.

Q: Can I put a campaign poster in my classroom or on my school laptop?
A: No. § 2-19-206(d)(2) prohibits using LEA-owned buildings, land, equipment, or vehicles for campaign or political advertising on behalf of any party, committee, or candidate.

Q: Can I make campaign phone calls during my conference period at school?
A: No. § 2-19-207(c)(2) prohibits engaging actively in a political campaign or otherwise performing political campaign duties or functions during hours when you're required to be performing school duties. Conference period during contract hours is school duty time for this purpose.

Q: My principal supports my opponent and is treating me differently. Is that a Little Hatch Act problem?
A: It could be. § 2-19-205 prohibits a public officer or employee from depriving or threatening to deprive any person of employment or other benefits provided principally from public funds for any political activity. § 2-19-202(a) prohibits coercing other officers or employees about how to vote. Disparate treatment based on political support may run afoul of either provision.

Q: Does it matter if my school district receives any federal funds?
A: For the federal Hatch Act, yes in some contexts: federal funds normally trigger Hatch Act coverage. But Congress specifically excluded teachers (and other employees of state/local educational institutions) from the candidacy bar in 5 U.S.C. § 1501(4)(B). The exclusion is structural, not dependent on whether the particular teacher works in a federally funded program.

Q: Why does the AG recommend contacting OSC?
A: Federal law gives OSC sole authority to issue advisory Hatch Act opinions. 5 U.S.C. § 1212(f). If OSC reaches a different view than the AG on a specific candidacy, OSC's view is the one that governs for federal purposes. Phone: (800) 85-HATCH. Fax: (202) 254-3700. Email: [email protected].

Citations and references

State statutes:

• Tenn. Code Ann. §§ 2-19-201 to -207

Federal statutes:

• 5 U.S.C. §§ 1501(4)(B), 1502(a)(3), 1212(f)

Cases:

• Special Counsel v. Suso, 26 M.S.P.R. 673 (1985)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-054.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
December 13, 2017
Opinion No. 17-54

County Teacher as a Candidate for Partisan Political office

Question

Does either the Tennessee or the federal Hatch Act prohibit a county teacher from qualifying and running as a candidate for partisan political office?

Opinion

The Tennessee Hatch Act would not prohibit a county teacher from qualifying and running as a candidate for partisan political office. However, only the U.S. Office of Special Counsel ("OSC") is authorized to issue advisory opinions under the Hatch Act, including opinions on whether an individual's proposed political activity is prohibited under the Act.

ANALYSIS

Tennessee's "Little Hatch Act" is designed to prohibit political intimidation or coercion of or by any public officer or employee. Tenn. Code Ann. § 2-19-202(b). The definition of "public officers and employees" includes teachers. Tenn. Code Ann. § 2-19-201(3). Section 2-19-202(a) of the Act prohibits a public officer or employee from using his official position, authority, or influence to intimidate, coerce or command another officer or employee to vote for or against any measure, party, or person. Tenn. Code Ann. § 2-19-204 prohibits a public officer or employee from promising any benefits provided principally from public funds as a consideration, favor or reward for any political activity, support or opposition to any candidate, party or measure in an election. Similarly, Tenn. Code Ann. § 2-19-205 prohibits any public officer or employee from depriving or threatening to deprive any person of employment or other benefits provided principally from public funds for any political activity, support or opposition to any candidate, party or measure in any election.

The Little Hatch Act also seeks to prohibit the inappropriate use of public employees and property for political purposes. It prohibits teachers from using any building or land owned by a local education agency, including equipment and vehicles, for campaign or political advertising on behalf of any party, committee or candidate for partisan or nonpartisan political office. Tenn. Code Ann. § 2-19-206(d)(2). It also prohibits any teacher employed by a local education agency from engaging actively in a political campaign on behalf of any party, committee, or candidate for partisan or nonpartisan public office, attending political meetings or rallies, or otherwise performing political campaign duties or functions during those hours of the day when the teacher is required to be performing school duties. Tenn. Code Ann. § 2-19-207(c)(2). Thus, while the provisions of the Little Hatch Act would prohibit a county teacher from engaging in certain political activities during the time the teacher is to be performing school duties, the Act does not prohibit that teacher from qualifying and running as a candidate for partisan political office, assuming that the teacher otherwise complies with the requirements of the Act.

The federal Hatch Act limits certain political activities of federal employees, as well as some state, D.C., and local government employees who work in connection with federally funded programs. It does generally prohibit a state or local employee from being a candidate for partisan elective office if that employee is employed in connection with an activity financed with federal funds. 5 U.S.C. § 1502(a)(3). But the definition of "state or local officer or employee" specifically "does not include" an "individual employed by an educational or research institution, establishment agency, or system which is supported in whole or in part by a State or political subdivision thereof." 5 U.S.C. § 1501(4)(B). The legislative history of this exclusion indicates that the exclusion was intended to apply to teachers. See Special Counsel v. Suso, 26 M.S.P.R. 673, 678 (1985) (citing H.R.Rep. No. 2296, 77th Cong., 2d Sess. (1942)).

However, only the U.S. Office of Special Counsel ("OSC") is authorized to issue advisory opinions under the Hatch Act, including opinions on whether an individual's proposed political activity is prohibited under the Act. See 5 U.S.C. § 1212(f). Accordingly, a county teacher planning to qualify and run as a candidate for partisan political office should contact the OSC to request an advisory opinion about his or her political activity under the Hatch Act. Requests for an advisory opinion may be made by phone ((800) 85-HATCH), fax ((202) 254-3700), or email: [email protected].

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable Johnny W. Shaw
State Representative
414 Cordell Hull Building
Nashville, Tennessee 37243-0180