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AGO 1975 No. 22 - October 28, 1975
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Slade Gorton | 1969-1980 | Attorney General of Washington

ELECTIONS ‑- COUNTIES ‑- CITIES AND TOWNS ‑- POLITICAL ACTIVITIES BY MUNICIPAL EMPLOYEES

Pursuant to RCW 41.06.250(2) a municipal employee who is covered thereby may, even though governed by a local ordinance, charter provision, resolution or regulation purporting to provide to the contrary:

(1) Express his opinion openly and publicly on all political subjects, or on all candidates for either partisan or nonpartisan elective offices;

(2) Display political signs on his own property advocating the election of a candidate or candidates seeking either a partisan or nonpartisan office;

(3) Assemble or prepare political signs for candidates in support of their candidacies for partisan but not for nonpartisan offices;

(4) Install or affix such political signs for partisan but not for nonpartisan candidates in or on locations other than his own property with the permission of the owner of the property in question;

(5) Distribute campaign material, such as printed leaflets, brochures, etc., prepared by or for partisan but not for nonpartisan candidates, on a door-to-door basis.

                                                              - - - - - - - - - - - - -

                                                                October 28, 1975

Honorable Reuben A. Knoblauch
State Senator, 25th District
P.O. Box 306
Sumner, Washington 98390

                                                                                                                 Cite as:  AGO 1975 No. 22

Dear Sir:

            By letter previously acknowledged you have requested our opinion as to whether, pursuant to RCW 41.06.250(2), a municipal employee in an agency not financed with federal funds may lawfully engage in the following political  [[Orig. Op. Page 2]] activities if governed by a local ordinance, charter provision, resolution or regulation purporting to provide to the contrary:

            (1) Express his opinion openly and publicly on all political subjects, or on all candidates for either partisan or nonpartisan elective offices?

            (2) Display political signs on his own property advocating the election of a candidate or candidates seeking either a partisan or nonpartisan office?

            (3) Assemble or prepare political signs for such candidates in support of their candidacies?

            (4) Install or affix such political signs for partisan or nonpartisan candidates in or on locations other than his own property with the permission of the owner of the property in question?

            (5) Distribute campaign material, such as printed leaflets, brochures, etc., prepared by or for partisan or nonpartisan candidates on a door-to-door basis?

            We answer questions (1) and (2) in the unqualified affirmative; questions (3) through (5) are also answered in the affirmative with respect to candidates for partisan elective offices but in the negative as to candidates for nonpartisan positions.

                                                                     ANALYSIS

            As originally enacted through the passage of Initiative No. 207 in 1960, RCW 41.06.250 dealt only withstate employees who are covered by the civil service system which was established by that initiative measure.  See, § 25, chapter 1, Laws of 1961.  In 1974, however, subsection (2) of this statute was amended by § 1, chapter 136, Laws of 1974, 1st Ex. Sess., to pick up the employees of political subdivisions as well.  At the same time, a previous prohibition against certain political activities was removed.  Set forth in bill form for ease of understanding, this amendatory enactment read as follows:

            "(2) Employeesof the state or any political subdivision thereof shall have the right to vote and to express their opinions on all political subjects and  [[Orig. Op. Page 3]] candidates ((, but shall not)) and to hold any political party office or participate in the management of a partisan, political campaign.  Nothing in this section shall prohibit ((a classified)) an employee of the state or any political subdivision thereof from participating fully in campaigns relating to constitutional amendments, referendums, initiatives, and issues of a similar character, and for nonpartisan offices."1/

             In addition, the legislature at the same time added a further subsection to the statute by which it said that:

            "(5) The provisions of this section shall supersede all statutes, charter provisions, ordinances, resolutions, regulations, and requirements promulgated by the state or any subdivision thereof, including any provision of any county charter, insofar as they may be in conflict with the provisions of this section."

            Thus, to the extent that a local ordinance, charter provision, resolution or regulation now purports to prohibit the employees of the municipality by which it was adopted from engaging in any of the activities described in thefirst  [[Orig. Op. Page 4]] sentence of RCW 41.06.250(2), the local law is no longer enforceable.  Accord, AGLO 1974 No. 97 [[to William M. Polk, State Representative on November 19, 1974 an Informal Opinion, AIR-74597]], copy enclosed.  On the other hand, thesecond sentence of the statute differs from the first in that it does not purport to grant any "rights" to the employees involved.  Rather, this further sentence merely disclaims any intent on the part of the legislatureitself to have prohibited a state or municipal employee,

            ". . . from participating fully in campaigns relating to constitutional amendments, referendums, initiatives, and issues of a similar character, and for nonpartisan offices."

            Therefore, it will be seen that a municipality may continue to bar its own employees from participating in campaigns for nonpartisan offices2/ so long as it does not, in so doing, attempt to prohibit them from exercising any of the rights affirmatively granted to all state and municipal employees by the preceding sentence of the statute.3/ From this it follows  [[Orig. Op. Page 5]] that the precise issue here to be explored may be initially narrowed so as to involve that opening sentence only; i.e., will an employee's performance of any or all of the activities listed in your letter constitute the exercise of a right granted by so much of RCW 41.06.250(2), as now provides that

            "Employees of the state or any political subdivision thereof shall have the right to vote and to express their opinions on all political subjects and candidates and to hold any political party office or participate in the management of a partisan, political campaign. . . ."?

            Question (1):

            The first activity listed ‑ that of expressing his (the employee's) opinion ". . . openly and publicly on all political subjects . . ." ‑ is, as we see it, fully within the terms of that part of the statute which entitles an employee to express his opinion ". . . on all political subjects and candidates . . . "

            Unlike, for example, Rule I of the original, 1883, civil service rules for federal employees, as amended by President Theodore Roosevelt in 1907 ‑ a predecessor of the present federal Hatch Act ‑ RCW 41.06.250(2) is not limited toprivate expressions of opinion only.  Instead, like the current federal law,4/ the state statute omits the word "private" and thus entitles those employees covered by it "to express their opinions on all political subjects . . ." ‑ privately or publicly.  Accord, the ruling of the United States Supreme Court with respect to the Hatch Act, inUnited Public Workers of America v. Mitchell, 330 U.S. 75, 100, 91 L. ed. [[L.Ed.]]754, 67 S.Ct. 556 (1947); see, also, United States Civil Service Commission, et al. v. National Ass'n of Letter Carriers, etc., 413 U.S. 548, 560, 37 L. ed. [[L.Ed.]]2d 796, 93 S.Ct. 2880 (1973).  Therefore, this conduct by itself may be engaged in by an employee of a political subdivision, even if purportedly prohibited by a local ordinance or the like, without regard to whether or not a partisan campaign is involved.

             [[Orig. Op. Page 6]]

            Question (2):

            Likewise, the mere act of displaying political signs on the employee's own property will be protected by the same clause of the statute ‑ regardless of the partisan or nonpartisan character of the campaign.  In essence, this is simply one means by which an individual may express his own opinion on a given candidate.

            Question (3)-(5):

            When engaged in the further activities covered by these three remaining parts of your inquiry, however, the employee will ordinarily have ceased to be merely an individual citizen expressing his own opinion.5/   Instead, he will have become what is generally referred to as a campaign worker ‑ assembling or preparing signs for the candidate or candidates of his choice to be installed not only on his own property but on other locations as well; installing those signs on such other locations with the permission of the property owner; and, finally, "door belling" in order to distribute campaign literature prepared by the candidate's organization.  In short, he will by these further activities have become, to a greater or lesser extent, involved in the management of the campaign.

            Although this may appear at first blush to be a misinterpretation of the word "management," it appears to us, in the context in which this term here appears and in the light of the legislative history of RCW 41.06.250 as above outlined, that the full phrase "management of a partisan, political campaign" encompasses all political activities in  [[Orig. Op. Page 7]] support of a given candidate for partisan office ‑ over and above merely voting or expressing one's own personal opinion.  Otherwise, there would be an illogical gap in the statute between the latter and "management" in the more limited sense of that word.  Thus, as we view it, such a narrow construction of the word should be rejected in conformity with the well-established principle of statutory construction that, in the words ofIn re Horse Heaven Irrigation Dist., 11 Wn.2d 218, 226, 118 P.2d 972 (1941):

            "The courts, in pursuance of the general object of giving effect to the intention of the legislature, are not controlled by the literal meaning of the language of the statute, but the spirit or intention of the law prevails over the letter thereof. . . ."

            In this instance, the apparent "spirit or intention" of the 1974 legislature's amendment to RCW 41.06.250(2) was to grant state and municipal employees the right to vote and express their opinions both publicly and privately on all political matters and, in addition, to engage, actively, in campaigns forpartisan elective offices.  Conversely, municipalities were to be allowed to continue regulating the active participation of their own employees in campaigns for nonpartisan offices,6/ over and above simply voting or expressing their own individual opinions regarding the candidates.

            For this reason, our answers to your third, fourth and fifth questions must depend upon the nature of the office involved.  If the campaign is for a partisan office an affirmative answer may be given under precisely the same reasoning as supported our like answer to questions (1) and (2).  But, if instead, it is for a nonpartisan office each of these three remaining inquiries must be answered, instead, in the negative. Because the activities covered by these questions go beyond the mere expression by an employee of  [[Orig. Op. Page 8]] his own opinion on a political subject or candidate it follows that a prohibition or restriction on those activities in a local ordinance, charter provision, resolution or regulation would not be in conflict with the state statute in the case of a nonpartisan campaign.  Therefore, subsection (5) of RCW 41.06.250 would not render the local restriction unenforceable in such a case.

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

Very truly yours,

SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/But see, subsection (4) of the same 1974 amendatory act which qualifies subsection (2) to the following extent:

            "(4) For persons employed in state agencies or agencies of any political subdivision of the state the operation of which is financed in total or ((in part)) primarily by federal grant-in-aid funds political activity will be regulated by the rules and regulations of the United States civil service commission."

            Your questions, however, specifically exclude those municipal employees to whom this latter subsection applies.

2/Although most county officers are elected on a partisan political basis, city or other local officers are currently not.  Instead, their offices are what are commonly referred to as nonpartisan offices.  See, chapter 29.21 RCW.

3/Interestingly, an earlier version of House Bill No. 474, by which chapter 136, Laws of 1974, 1st Ex. Sess., was enacted, would have expressly allowed a county, city or town to ". . . prohibit or restrict any employee from engaging in, as a candidate or in the management of, and partisan or nonpartisan campaign for public office of that . . ." county, city or town.  This was how the bill read when it was passed by the House of Representatives.  The Senate, however, effectively replaced the entire house bill with its own version ‑ in which form, basically, it became a law.  See, Senate Journal (1974) at pp. 504-5.

4/See, 5 U.S.C. § 7323(b).

5/Conceivably, in a given case a doorbeller (although probably not a sign poster) could be simply calling upon his neighbors to communicate to them his own opinion, either verbally or in written form, about a particular candidate; and if this is all that is involved, our answer to your first question would apply here as well.  Our assumption, however, is that the signs or other materials actually being distributed in the context of your third through fifth questions are, instead, products of the candidate's own organization manifesting expressions of its views and not merely those of the campaign workers who are distributing them.

6/Compare, RCW 41.06.250(2), supra, with the earlier version of House Bill No. 474 from which we quoted in footnote 3 above.

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