Request By:
Ms. Betty C. Hawkins
Executive Director
Office of Personnel Management
Transportation Cabinet
Frankfort, Kentucky 40622
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
You have requested a legal opinion on whether a full-time merit employee, classified as a Heavy Equipment Operator with the Transportation Cabinet, is prohibited by law or regulation from providing auctioneering services at a political fund-raiser. You stated that the employee will receive no compensation for his services, and the auction is to take place on April 20, 1991.
Based on the facts provided, it would appear that the employee would be prohibited from providing auctioneering services as part of a political fund-raiser. KRS 18A.140 states in pertinent part:
(3) No employee in the classified service . . . shall, directly or indirectly, pay or promise to pay any assessment for political purposes, or solicit or take any part in soliciting for any political party, or solicit or take part in soliciting any political assessment, subscription, contribution, or service. No person shall solicit any political assessment, subscription, contribution, or service of any employee in the classified service.
(4) No employee in the classified service . . . shall take part in the management or affairs of any political party or in any political campaign, except to exercise his right as a citizen privately to express his opinion and to cast his vote.
First, when examining the requirements of KRS 18A.140(3), it is unclear from your letter whether the employee in question has promised, for political purposes, to provide a service for the purpose of fund raising. Nor is it clear whether anyone has solicited, from the classified employee in question, services as an auctioneer. If either of those two conditions were to exist, it would violate KRS 18A.140(3). The penalty for a willful violation by an employee in the classified service is set forth in KRS 18A.990, which requires forfeiture of the office or position and ineligibility for appointment to an office or position in the Commonwealth service for one year. Moreover, violation of KRS 18A.140 constitutes a misdemeanor.
Under KRS 18A.140(4), if an employee of the classified service were to offer his services gratis, as an auctioneer for the purpose of political fund raising, that would appear to constitute taking "part in the management or affairs of a political party or campaign. " A merit system employee may forfeit his position under KRS 18A.990 if he becomes a candidate or participates in political campaigns. OAG 61-55. The Attorney General's Office has also opined that a merit system employee may not even participate in a nonpartisan campaign to elect a judge as the campaign is a political campaign despite the fact that the position of judge is not chosen by party labels. OAG 76-637.
In contrast, this office has opined that classified employees may participate in nonpartisan voter registration drives, OAG 76-537; may write a letter concerning a political candidate in a newspaper so long as that letter is not part of a concerted effort or part of a political campaign, OAG 75-272; a classified employee may take friends to the polls so long as he does not do so as an election worker or as part of an organized political effort, and may contribute to a political party so long as not solicited, OAG 61-928. Finally, a classified employee may purchase tickets to political party functions so long as it is voluntary and unsolicited, but may not sell tickets to the function, OAG 61-125.
On February 1, 1991, Thomas C. Greenwell, Commissioner of the Department of Personnel, issued a memorandum to Cabinet Secretaries and Personnel Administrators concerning political activities. The memorandum included a copy of KRS 18A.140, which was accompanied by a set of guidelines interpreting the statute. The guidelines are based on opinions of the Attorney General which have been issued from the inception of the political activities statute. The guidelines, which are attached, state:
Section 1, Permitted activities, Subsection (3), Contributions. It is lawful for classified employees to make voluntary cash contributions to political parties, candidates, or organizations; provided, however, it shall be unlawful for classified employes to make contributions of goods, labor and services.
It remains the opinion of this office, in accordance with the guidelines set forth above, that contributions of labor or services by a classified employee toward a political campaign are prohibited by KRS 18A.140(4). Moreover, depending on the facts and circumstances, the behavior might constitute a violation of KRS 18A.140(3) .