80 Op. Att'y Gen. 68 (1991)
 
80 OAG 68   69  70  71  72  73

OPINION NO. OAG 12-91,

Wisconsin Attorney General Opinions

30 May 1991

Civil Service;
Public Officials;
Words And Phrases;

Classified employes, including classified
employes of legislative service agencies
can run for nonpartisan office.

An agency cannot prohibit its classified
employes from running for nonpartisan office
except in certain circumstances.

JON E. LITSCHER,
Secretary Department of Employment Relations

Section 230.40, Stats., regulates the
political activity of classified state
employes.

The administrator of the Division of Merit
Recruitment and Selection in the Department
of Employment Relations is responsible for
administering the law. Sec. 230.40(6), Stats.

You state that in the past the administrator
has interpreted section 230.40 as permitting
classified civil service employes to run for
such public offices as school board, city
council or county board.

You have been informed that a classified
civil service employe of a legislative
service agency has been told that he could
not run for a position on a local school
board.

You ask several questions concerning this
conflict between the legislative service
agency's policy and the administrator's
understanding of section 230.40.

I conclude that the administrator's
understanding of the law is correct; a
classified employe of a legislative service
agency has the right to run for school board.

The administrator may enforce the law through
appropriate orders to the appropriate
appointing authority.

There is no doubt that the relinquishment of
the right to run for partisan political
office can constitutionally be made a
condition of state employment.

United States C. Serv. Com'n v.
National Ass'n of Let. Car.,
413 U.S. 548 (1973);

Wisconsin State Emp. Ass'n v.
Wisconsin Nat. Resources Bd.,
298 F.Supp. 339, 350 (W.D. Wis. 1969).

Absent any statutory prohibition, however, a
state employe is free to engage in political
activity, including partisan political
activity.

 
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Wisconsin's laws do not prohibit or
discourage all partisan political activity;
rather, the laws encourage state employes to
engage in political activities, including
partisan political activities.

63 Op. Att'y Gen. 217, 218-19 (1974).

The law's clear and unambiguous language
requires that classified state employes who
run for partisan political office must take
a leave of absence for the duration of the
election campaign.

Sec. 230.40(2), Stats.

The Legislature has chosen not to require
candidates for nonpartisan office to take
leaves of absence.

See 67 Op. Att'y Gen. 315, 319 (1978).

Neither section 230.40 nor any other state
law prohibits a state employe from being a
candidate for nonpartisan political office
or requires a state employe to take a leave
of absence to run for nonpartisan political
office.
 

The statutes do not define "partisan."
Wisconsin courts have not had occasion to
interpret the term except in the context of
the open meetings law.

That discussion is of little assistance
outside of that context.

State ex rel. Lynch v. Conta,
71 Wis.2d 662, 691-94,
239 N.W.2d 313 (1976).

It is not necessary, however, to define
the term completely in order to resolve
the present issue.

School district officers are elected at the
spring election.

Section 5.58 which governs the spring primary
ballots provides "only nonpartisan candidates
nominated for office by nomination papers
shall have their names placed on the official
spring primary ballot. . . ."

Section 5.02(22) defines the spring primary
as "the nonpartisan primary held the third
Tuesday in February to nominate candidates
to be voted for at the spring election."

The statutes do not allow a party designation
for candidates for school board.

Because the ballots do not identify the
candidates for school board as being
affiliated with any national or state
political party, the election is nonpartisan
and the office of member of the school board
is nonpartisan.

See United States C. Serv. Com'n,
413 U.S. at 577.

Under the Hatch Act an election is
nonpartisan "if none of the candidates is to
be nominated or elected at such election as
representing a party any of whose candidates
for Presidential elector received votes in
the last preceding election at which
Presidential electors were selected."

5 U.S.C.A. Section 1503 (1977).

 
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In 63 Op. Att'y Gen. at 219, the attorney
general interpreted the predecessor of
section 230.40(2) and held that a state
agency could not proscribe partisan political
activity of state employes covered by the
Hatch Act if that activity was permissible
under state law.

In 73 Op. Att'y Gen. 131, 132 (1984), the
attorney general affirmed that earlier
conclusion and specifically held that even
the prohibition of partisan political
activity contained in the Hatch Act
could not "empower a state agency to ignore
the provisions of section 230.40(2)."

That opinion noted that the civil service
statutes do not apply to employes included in
certified bargaining units.

Therefore, if a collective bargaining
agreement contains provisions concerning
leaves of absence, those provisions, not
section 230.40, are controlling.

If the classified employe is included in a
certified bargaining unit whose collective
bargaining agreement is silent concerning
leaves of absence for political activities,
"the decision whether to grant a leave rests
in the discretion of the state agency
involved."

73 Op. Att'y Gen. at 133.

But the attorney general cautioned that

     the agency also should consider that the
     Legislature expressly has authorized
     unrepresented employes to take
     leaves of absence to run for partisan
     political office . . . thereby creating
     the potential for unfairness (and
     perhaps even the denial of
     constitutionally-guaranteed equal
     protection) if represented employes were
     to be denied leaves of absence to run
     for partisan political office.

73 Op. Att'y Gen. at 133-34.

Absent an applicable collective bargaining
agreement or separate statutory
authorization, a state agency does not have
the authority to impose more stringent
conditions on political activity than those
imposed under section 230.40.

 
80 OAG 68   69  70  71  72  73

The Legislature has created various
legislative service agencies.

Under section 230.08(2)(fe), (fm), and (fo)
personnel of the Legislative Audit Bureau,
the Legislative Fiscal Bureau and the
Legislative Council are unclassified.

The laws governing the Legislative Reference
Bureau, section 13.92; the Revisor of
Statutes Bureau, section 13.93; the
Legislative Audit Bureau, section 13.94 and
the Legislative Fiscal Bureau, section 13.95
all provide that the bureaus

    "shall be strictly nonpartisan."

Section 13.91 requires that

    "the legislative council staff
     shall be strictly nonpartisan."

Nothing in any of these statutes evidences a
legislative intent to treat the classified
employes of the legislative service bureaus
any differently from classified employes of
other state agencies except that they must
"be strictly nonpartisan," that is, not
identified with national or state
political parties.

An employe's being a candidate for a
nonpartisan office does not violate the
statutory command that the agencies be
strictly nonpartisan.

You ask whether a classified civil service
employe can be prohibited from engaging in
any political activity when not on duty
"based solely on a supervisor's or employer's
belief that the employe's activities may
interfere with or impair the person's
efficiency during work hours."

Section 230.40(1) is clear; it prohibits a
person covered by the statute from engaging
in any political activity

    "when not on duty to such an extent that
     the person's efficiency during working
     hours will be impaired or that he or she
     will be tardy or absent from work."

Sec. 230.40(1), Stats.

The statute does not provide that a
supervisor or agency may decide to prohibit
all off-duty political activity on the belief
that such activity will impair the employe's
job performance.

On the contrary, the statute permits
political activity when not on duty unless
the person's efficiency during working hours
is impaired or he or she is tardy or absent
from work.

The statute is a simple declaration that
off-duty political activity, like any other
off-duty activity, will not be accepted as an
excuse for poor job performance.

The statute permits personnel actions against
an employe if the employe's efficiency is
impaired or he or she is tardy or absent
from work.

 
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It does not permit the agency to make a
determination in advance of any facts to
support the determination.

You ask whether the administrator of the
Division of Merit Recruitment and Selection
has the authority to issue orders to enforce
the provisions of section 230.40.

Section 230.40(6) provides

    "the administrator shall
     administer this section."

Under section 230.05(4),

    "the administrator may issue
     enforceable orders on all matters
     relating to the administration,
     enforcement and effect of the
     provisions of this subchapter
     for which responsibility is
     specifically charged to the
     administrator. . . "

The administrator has the responsibility to
enforce the provisions of section 230.40 and
issue enforceable orders if the appointing
authority will not comply with the law.

Under the statute, the administrator has not
only the authority to issue such orders, but
the duty to enforce the Legislature's
regulation of political activity against
agencies as well as against employes.

JED:AL

 
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