Attorney General's Opinion
Attorney General, Richard Blumenthal
August 17, 1992
Honorable Clifton A. Leonhardt
Chairperson-Department of Public Utility Control
One Central Park Plaza
New Britain, CT 06051
Dear Mr. Leonhardt:
This will respond to your request for an opinion of the Attorney General concerning political activity of commissioners of the Public Utility Control Authority. The provisions of Conn. Gen. Stat. § 16-5 provide that a commissioner may be removed for: "Misconduct, material neglect of duty, incompetence in the conduct of his office, or active participation in political management or campaigns by any commissioner.... In particular you ask whether the following two scenarios present violations: attendance at dinners, or social events (1) in connection with financial contributions to political parties or candidates of such political parties for public office; or (2) in connection with the affairs of the political parties or their candidates, without regard to any financial contributions. We conclude that this statute only limits participation in a narrow class of political activities, for the reasons set forth below. 1
This opinion will address federal law and state law. The starting point of analysis is the First Amendment to the U.S. Constitution. The right to associate with the political party of one's choice is an integral part of this basic constitutional freedom." Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 107 S.Ct. 544, 548 - 549 (1986). Political activity is an integral part of the constitutional freedom represented by the First Amendment. Tashjian, 479 U.S.
208, 107 S.Ct. at 548 - 549; Kusper v. Pontikes, 414 U.S. 51, 57, 94 S.Ct. 303, 307 (1973).
In view of the fundamental nature of the right to associate, governmental "action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny." [citation omitted]. Yet, it is clear that "[n]either the right to associate nor the right to participate in political activities is absolute." [citation omitted]. Even a "'significant interference' with protected rights of association" may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms. [citations omitted].
Buckley v. Valeo, 424 U.S. 1, 65, 96 S.Ct. 612, 656 (1976).
The United States Supreme Court has upheld significant restrictions on the political activity of federal, state and local employees. United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556 (1947; State of Oklahoma v. U.S. Civil Service Commissioner, 330 U.S. 127, 67 S.Ct. 544 (1947); U.S. Civil Service Commissioner v. National Ass'n of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2§O (1973); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908 (1973).2 Our advice is guided by the types of prohibitions that the Court has upheld.
- Federal Law.
Federal law, commonly called the "Hatch Act", sets out regulations regarding political activities of state employees in 5 U.S.C. §§ 1501 - 1508 and 5 C.F.R. §§ 151.101 - 151.122. If the commissioners, who are employed full-time by the State, work as commissioners in connection with an activity financed in whole or in part by federal funds, then each of them is covered by the Hatch Act. In general, limited federal Hatch Act restrictions attach to state officers or employees of a state or local agency if their principal employment is in connection with an activity which is financed in whole or part by loans or grants made by the United States or a Federal Agency. For the purposes of indicating what prohibitions are included in federal law we are assuming that each of the commissioners is covered.
There are three narrowly stated prohibitions in 5 U.S.C. § 1502 and 5 C.F.R. §§ 151.121, 151.122. They are: (1) not using one's official position to influence the result of an election; (2) not using one's official position to coerce campaign contributions; and, (3) not being a candidate in a partisan election. All other forms of political activity for state and local employees are not prohibited by the Hatch Act. The Hatch Act is more restrictive in its provisions that are applied to federal employees.3
Accordingly, even if the commissioners are covered by the Hatch Act, the prohibitions under federal law are extremely narrow. None of the provisions of federal law would in any way prohibit participation in either of the scenarios that you set forth.
- State Law.
The state law that governs political activity of the commissioners of the Public Utilities Control Authority is Conn. Gen. Stat. § 16-5. It is important to point out that this law differs significantly from the state law applicable to classified state employees. Whereas Conn. Gen. Stat. § 5-266a recognizes a significant number of political activities in which classified employees are expressly permitted to engage, Conn. Gen. Stat. § 16-5 restricts active participation in political management or campaigns and parallels the language of the Hatch Act that applies to federal employees. Conn. Gen. Stat. § 16-5 states that a commissioner may be removed for active participation in political management or campaigns." This language was part of the statute as originally enacted in 1911 and is almost identical to language in the Hatch Act, which states that federal employees "shall take no active part in political management or in political campaigns." 5 U.S.C. §7324. Although the Hatch Act was not enacted until 1939, the phrase in question was enacted in 1907 as an amendment to Civil Service Rule 1, and was incorporated into the Hatch Act in 1939. S. 1871 76th Cong., 1st Sess. §9(a)(1939); See United States Civil Service Commission v. Natural Association of Letter Carriers. 413 U.S. 548, 93 S.Ct. 2880, 2886-2889 (1973). Thus, the Connecticut statute enacted in 1911 copied language from the federal civil service rule which preceded the Hatch Act.
In our view the First Amendment requires a narrow construction of what is meant by "active participation in political management or campaigns." The former U.S. Civil Service Commission, and successor U.S. Merit Systems Protection Board, in implementing the Hatch Act applicable to federal employees, carefully considered what types of political activities were permissible4 and which type of political management and political campaigning were prohibited.5 It is this model that the Supreme Court determined to be constitutional in U.S. Civil Service Commission v. National Ass'n of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880 (1973).
Where a Connecticut statute mirrors the language of a federal act, interpretation of the federal act is particularly pertinent to the construction of the state statute. Elida, Inc. v. Harmor Really Corporation, 177 Conn. 218, 226 - 227 (1979), United Aircraft Corp. v. International Association of Machinists, 161 Conn. 79, 85 (1971), cert. denied, 404 U.S. 1016, 92 S.Ct. 675 (1972). Prior to 1974, 5 U.S.C. §1501 subsection (a)(3) contained nearly the identical phrase, "rake an active part in political management or political campaigns" to that of Conn. Gen. Stat. §16-5 which reads "Active participation in political management or campaigns." Since the same phrase has been fleshed out by a responsible federal agency in a manner that has been approved by the Supreme Court, the same result is called for. Moreover the phrase "active part in political management or in political campaigns" appeared in Conn. Gen. Stat. §5-266a until 1975. The regulations adopted under that law, which were identical to the federal regulations relied on in this opinion can be assumed to be the correct application of the phrase in question. See Texaco Refining & Marketing v. Commissioner, 202 Conn. 583, 600-01 (1987). Accordingly, we conclude that commissioners of the Public Utility Control Authority may participate in political activities of the nature described in 5 C.F.R. § 733.111, and may not participate in political activities of the nature described in 5 C.F.R. 733.122, barring any changes in the state statute.
- Specific Activities About Which Advice is Sought.
Addressing your specific questions in light of the previous interpretations, it appears that contributions to political parties have always been considered an acceptable activity. Contributions directly to candidates are not expressly addressed in 5 C.F.R. 733.111 (permitted political activities) or 5 C.F.R. 733.112 (prohibited political activities). If in your judgment the candidate will not publicize your contribution as an endorsement then your contribution would not be considered an act of "active participation." On the other hand, disclosure requirements always present the danger that your contribution will be reported by the press and interpreted as an endorsement.
Turning to the situations you described, which include dinners, organizing events or social gatherings in connection with financial contributions to political parties or candidates of the political party in relation to the terms of section 16-5, your question is best answered by breaking down the events you describe. Any gathering which might be termed an "organizing event" would constitute active participation in political management as that term has been interpreted, as discussed earlier in this advice. Some social gatherings in connection with financial contributions run the risk of constituting an endorsement of a candidate. There is no bright line test for determining when a social event would be construed as active participation in political management or campaign. You always retain your right to express your opinion concerning a candidate. However, since you cannot separate yourself from your public office, prudence dictates that your appearance at such an event should be sufficiently passive in order to deter the charge that your presence is to -influence other attendees in support of the candidate or the party's agenda.6
Attending events "in connection with the affairs of political parties, or its candidates in their capacity as such, but not in connection with any financial contributions," is a prohibited activity only if the agenda involves you in an active role in the party's or candidate's organization or reorganization or to serve as a functionary at such an event. You are allowed to attend a political convention or other political gathering, but are prohibited from serving as an officer of a political party, or as a member of a committee of such party or serving as a delegate to a convention. You should also note that merely addressing a convention, caucus, or rally of a party in support of a political candidate or candidate for a party office is forbidden.
Very truly yours,
RICHARD BLUMENTHAL
ATTORNEY GENERAL
RB/mc
1 This opinion is limited to political activity of any of the five commissioners who constitute the membership of the Public Utility Control Authority, to whom a specific statute applies. If guidance is needed concerning classified employees of the Department of Public Utility Control, which is under the supervision of the Authority, you should refer to the Attorney General's memorandum to state agency heads concerning political activities of state employees, reissued on November 19, 1991.
2 These cases were decided by divided courts with very powerful dissents. Recognizing the importance of political rights in a free society, and having concerns about the continued viability of the majority opinions in these cases under First Amendment doctrine, as it has evolved more recently, our office attempted two years ago to get the Supreme Court to revisit the issue. Certiorari was denied. State of Conn., DHR v. U.S. M.S.P.B., 718 F.Supp. 125 (D. Conn. 1989), aff'd mem., 896 F.2d 543 (2d Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 43 (1990). We are, of course, bound to adhere to the Court's interpretation of the Constitution. Should the Court adopt a narrower reading on the ability of government to restrict the political activity of public servants, the conclusions reached in this opinion may need to be revisited.
3 There is a separate "Hatch Act" for federal employees set forth at 5 U.S.C. §§ 7321 - 7327 and 5 C.F.R. §§ 733.101 - 733.301. These laws are far more comprehensive than those applicable to state and local employees, which is evident in the provisions concerning what is prohibited. 5 U.S.C. § 7324, 5 C.F.R. 733.122. The federal Hatch Act was amended in 1974 to allow states to adopt laws that granted state employees more political freedom.
4 The provisions of 5 C.F.R. § 733.111 provide: (a) All employees are free to engage in political activity to the widest extent consistent with the restrictions imposed by law and this subpart. Each employee retains the rights to-- (1) Register and vote in any election; (2) Express his opinion as an individual privately and publicly on political subjects and candidates; (3) Display a political picture, sticker, badge, or button; (4) Participate in the nonpartisan activities or a civil, community, social, labor, or professional organization, or of a similar organization; (5) Be a member of a political party or other political organization and participate in its activities to the extent consistent with law; (6) Attend a political convention, rally, fund-raising function; or other political gathering; (7) Sign a political petition as an individual; (8) Make a financial contribution to a political party or organization; (9) Take an active part, as an independent candidate, or in support of an independent candidate, in a partisan election covered by § 733.124; (10) Take an active part, as a candidate or in support of a candidate, in a nonpartisan election; (11) Be politically active in connection with a question which is not specifically identified with a political party, such as a constitutional amendment, referendum, approval of a municipal ordinance or any other question or issue or a similar character; (12) Serve as an election judge or clerk, or in a similar position to perform nonpartisan duties as prescribed by State or local law; and (13) Otherwise participate utility in public affairs, except as prohibited by law, in a manner which does not materially compromise his efficiency or integrity as an employee or the neutrality, efficiency, or integrity of his agency.
5 The provisions of 5 C.F.R. § 733.122 provide: (a) An employee may not take an active part in political management or in a political campaign, except as permitted by this subpart. (b) Activities prohibited by paragraph (a) of this section include but are not limited to-- (1) Serving as an officer of a political party, a member of a National, State or local committee of a political party, an officer or member of a committee of a partisan political club, or being a candidate for any of these positions; (2) Organizing or reorganizing a political party organization or political club; (3) Directly or indirectly soliciting, receiving, collecting, handling, disbursing, or accounting for assessments, contributions, or other funds for a partisan political purpose; (4) Organizing, selling tickets to, promoting, or actively participating in a fund-raising activity of a candidate in a partisan election or of a political party, or political club; (5) Taking an active part in managing the political campaign of a candidate for public office in a partisan election or a candidate for political party office; (6) Becoming a candidate for, or campaigning for, an elective public office in a partisan election; (7) Soliciting votes in support of or in opposition to a candidate for public office in a partisan election or a candidate for political party office; (8) Acting as recorder, watcher, challenger, or similar officer at the polls on behalf of a political party or a candidate in a partisan election; (9) Driving voters to the polls on behalf of a political party or a candidate in a partisan election; (10) Endorsing or opposing a candidate for public office in a partisan election or a candidate for political party office in a political advertisement, a broadcast, campaign, literature, or similar material; (11) Serving as a delegate, alternate, or proxy to a political party convention; (12) Addressing a convention, caucus, rally, or similar gathering of a political party in support of or in opposition to a partisan candidate for public office or political party office; (13) Initiating or circulating a partisan nominating petition; (14) Soliciting, r in h Federal workplace collecting, or receiving a contribution at or Federal workplace from any employee for any political party, political fund, or other partisan recipient; (15) Paying a contribution at or in the Federal workplace to any employee who is the employer or employing authority of the person making the contribution for any political party, political fund, or other partisan recipient; and (16) Soliciting, paying, collecting, or receiving as contributions at or in the Federal workplace from any employee for any political party, political fund, or other partisan recipient.
6 Size could be determinant; the more intimate the gathering the more likely your presence could be construed as actively endorsing the candidate. Likewise a large affair, which you simply attend, may remove the concern that you are actively participating in the campaign.