Kansas Attorney General Opinion 1992-072

ROBERT T. STEPHAN
ATTORNEY GENERAL
June 2, 1992
ATTORNEY GENERAL OPINION NO. 92- 72
The Honorable Jim Ward
State Senator, Twenty-Ninth District
423 S. Martinson
Wichita, Kansas 67213
Re: Cities of the First Class; Government by Mayor and
Council and General Laws--Elections--Ordinance
Prohibiting City Firefighter From Running for
City Council; Constitutionality
Constitution of the United States--Freedom of
Speech--Restrictions on Public Employees' Political
Activities
Synopsis: The city of Wichita may prohibit a city
firefighter from running for city council without
violating the firefighter's first amendment
rights. Cited herein: U.S. Const., Amend. I.
Dear Senator Ward:
As senator for the twenty-ninth district you request our legal
opinion on the constitutionality of section 7, part 9(b) of
the city of Wichita's personnel manual, which prohibits city
employees from participating in various political activities.
This part of the manual provides:
"City employees are neither appointed to
nor retained in City employment based on
their political affiliations. It is an

employee's duty and right to register and
to vote on all political issues.
Employees may become involved in political
activity, as provided in the subparagraphs
below.
"a. As private citizens, employees may
participate in all political activity,
including holding office, except for City
Council elections.
"b. In City Council elections, employees
may privately encourage and support
candidates to run for office and
contribute in-kind labor and time to
candidates and organizations that endorse
candidates. Employees are not permitted
to be candidates for the City Council, to
make in public individual and personal
endorsements of a candidate or to make
cash contributions to a candidate.
"c. Political activity must not interfere
with job attendance or performance. City
facilities, equipment and uniforms may not
be used in any political activities.
"d. In their capacities as City
employees, employees may not represent to
the public, either verbally or in writing,
positions contrary to public policy as
determined by the City Council. Employees
may discuss matters of employee working
conditions which are under consideration
by employee organizations.
"e. Employees who violate the
restrictions in this policy are subject to
disciplinary action, including
termination. (R-12/87)"
You request this opinion on behalf of a Wichita firefighter
who wants to run for the city council.
The above-quoted personnel policy would be facially invalid if
it were "substantially overbroad" in regulating conduct
protected by the first amendment of the United States
Constitution. See Broadrick v. Oklahoma, 413 U.S. 601,

611-12, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Court's do not
find statutes or regulations facially overbroad, however,
when a limiting construction has been placed on them.
We are unaware of how these regulations have been applied or
construed by Wichita. Our opinion, therefore is limited to
the specific situation presented: is it constitutional to
prohibit a city firefighter from running for city council.
While there are other limitations on political activity
continued in the regulation, only the prohibition on running
for office will be considered for purposes of this opinion.
The United States Supreme Court has recognized that
governmental entities may limit political activities of the
entities' employees. In a landmark decision, United Public
Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754
(1947), the Court was faced with a constitutional challenge to
the hatch act which prohibited certain political activities by
federal employees including taking "any active part in
political management or in political campaigns." 330 U.S. at
78. The act was challenged on the basis that it extended its
reach to an employee's activities on his free time, and was
not only a violation of the employee's first amendment rights,
but was constitutionally overbroad as well.
The Court, in upholding the constitutionality of the act,
first noted that the right to be politically active is not
absolute. 330 U.S. at 95-96. The Court said,
"We have said that Congress may regulate
the political conduct of Government
employees 'within reasonable limits,' even
though the regulation trenches to some
extent upon unfettered political action.
The determination of the extent to which
political activities of governmental
employees shall be regulated lies
primarily with Congress. Courts will
interfere only when such regulation passes
beyond the general existing conception of
governmental power. When actions of civil
servants in the judgment of Congress
menace the integrity and the competency of
the service, legislation to forestall such
danger and adequate to maintain its
usefulness is required. The Hatch Act is
the answer of Congress to this need. We
cannot say with such a background that

these restrictions are unconstitutional."
330 U.S. at 102-03.
Mitchell was extended by the Court in two companion cases,
United States Civil Service Commission v. Letter Carriers,
413 U.S. 548, 92 S.Ct. 2880, 37 L.Ed.2d 796 (1973), and
Broadrick v. Oklahoma, supra. In Letter Carriers the
Court again considered a constitutional challenge to the hatch
act. The provision in question prohibited federal employees
from taking an active part in political management or
campaigns. The Court reaffirmed Mitchell and said,
"We unhesitatingly reaffirm the Mitchell
holding that Congress had, and has, the
power to prevent Mr. Poole and others
like him from holding a party office,
working at the polls, and acting as party
paymaster for other party workers. An Act
of Congress going no farther would in our
view unquestionably be valid. So would it
be if, in plain and understandable
language, the statute forbade activities
such as organizing a political party or
club; actively participating in
fund-raising activities for a partisan
candidate or political party; becoming a
partisan candidate for, or campaigning
for, an elective public office; actively
managing the campaign of a partisan
candidate for public office; initiating or
circulating a partisan nominating petition
or soliciting votes for a partisan
candidate for public office; or serving as
a delegate, alternate or proxy to a
political party convention. Our judgment
is that neither the First Amendment nor
any other provision of the Constitution
invalidates a law barring this kind of
partisan political conduct by federal
employees." 413 U.S. at 556.
The Court, in analyzing whether the prohibition was
constitutional, employed a balancing test between the
interests of the employees as citizens in commenting on
matters of public concern, and the employer in promoting the
efficiency of the public services it performs through the
employees. 413 U.S. at 564.

In Broadrick, the Court used the same analysis in holding
constitutional a state statute prohibiting state employees
from soliciting money for political parties or candidates,
belonging to a local committee for a candidate, or becoming
involved in a campaign.
These holdings of the Court have been recognized in Kansas.
In State ex rel. Stephan v. Johnson, 14 Kan.App.2d 542
(1990), appeal dismissed 244 Kan. 256, the Court of Appeals
held constitutional a statute which prohibited an employee of
a Kansas university from serving on the state board of
education. The court said:
"Restrictions on the political activities
of public employees by themselves do not
violate the rights guaranteed by the First
Amendment. Broadrick v. Oklahoma, 413
U.S. at 616-17. Like the Oklahoma statute
at issue in Broadrick, K.S.A. 25-1904
is not a 'censorial statute, directed at
particular groups or viewpoints.'
Instead, it 'seeks to regulate political
activity in an evenhanded and neutral
manner.' 413 U.S. at 616. Thus, it does
not violate the First Amendment." 14
Kan.App.2d at 549.
While Broadrick and Letter Carriers concerned
prohibitions on partisan office holding, courts have extended
the rational to prohibitions on non-partisan political
activity. In Ferguson Police Officers v. City of
Ferguson, 670 S.W.2d 921 (Mo.App.1984), the court upheld
the constitutionality of a portion of a city charter which
prohibited employees from sponsoring any person as a candidate
for councilman or taking an active part in an election
campaign of a city councilman.
The court said,
"Section 29 is narrowly drawn in that it
applies only to city council elections.
City employees are allowed complete
freedom to engage in other political
activities. No restrictions are imposed
on participation in county, state, or
federal campaigns or advocating a position
on other issues in Ferguson. City
council members are the only elected

officials in Ferguson, and they
determine who will serve as city manager
and for how long. The city manager, in
turn, has control over the termination of
city employees. If the City is concerned
about pressure being put on police
officers to support certain candidates,
about control over elections by city
employees, about the appearance of bias in
the delivery of public services,
prohibiting political involvement in city
council elections is a logical place to
start. The burden placed on the employees
is limited, and there is a close fit
between the means and the end." 670
S.W.2d at 928-29.
We also note that this office has opined that a personnel
policy of the city of Hoisington which provided that "[n]o
employee shall be a candidate for a political office" was
constitutional when applied to prevent a police captain from
running for the school board. Att'y Gen. Op. No.
85-80.
Wichita does have an interest in preventing its firefighters
from running for the city council. A citizen, when faced with
a firefighter campaigning for office, might feel that fire
protection for his residence or business depended on
supporting the firefighter's campaign. The city council
might find it difficult to administer the fire department when
faced with a fireman running for office. The prohibition on
political activities of employees is a narrow one. The
regulation only prohibits employees from running for city
council. A wide range of political activity is available to
the employees. It is our opinion that a city personnel
regulation or policy which prohibits a firefighter from
becoming a candidate for city council within the city is
justified by the city's interest in maintaining the integrity
of its fire department and the orderly administration of
government and is constitutional as applied in this case.
We specifically do not consider other applications of the
policy, and we do not consider subpart (d) which prohibits

employees from publicly taking positions contrary to the
public policy determined by the city council.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Steve Phillips
Assistant Attorney General
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