By Howard Fischer
Capitol Media Services
PHOENIX -- Cities can't bar their employees from contributing to races for city council and mayor, Attorney General Mark Brnovich concluded Thursday.
In a formal opinion, Brnovich said a ban on such donations on its workers violates their constitutional rights. But the attorney general said it is permissible for cities to prohibit their employees from working directly on a candidate's campaign.
Thursday's opinion specifically applies to a Phoenix city ordinance. But the effects reach into every other community with a similar restriction.
"The act of contributing money to a candidate is a significant form of political expression that involves First Amendment rights,'' Brnovich said.
He acknowledged that governments do have some rights to regulate employee conduct.
"Nonetheless, the Supreme Court has made clear that public employees do not surrender all their First Amendment rights by reason of their employment,'' Brnovich wrote, quoting from a 2006 opinion from the nation's high court. "Rather, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern.
He acknowledged that, strictly speaking, the Phoenix ordinance does not specifically bar municipal workers from contributing. Instead it prohibits candidates for city offices from accepting their contributions.
Brnovich called it a distinction without a difference, saying it operates as a complete ban on the ability of city employees to give not only money but any thing of value, directly or indirectly, to any candidate for city office.
And that, he said, is improper.
"City employees undoubtedly have an interest in making political contributions,'' Brnovich said. "An outright ban on all political contributions, no matter how small, constitutes a substantial burden on public employees' First Amendment rights.''
Brnovich said his views are buttressed by the fact that there is no evidence that such a restriction is necessary to do things like promote public confidence in government or ensure governmental integrity.
And even if those were problems, the attorney general said there are other ways to serve government interests without stepping on the rights of employees.
He pointed out, for example, that state law already prohibits city employees from using the authority of their position to influence the vote or political activities of any subordinate. And another statute limits individual contributions to candidates for city offices at $6,250.
"These laws and policies reduce the likelihood that a candidate for a city office will improperly influence or reward a city employee who contribute to the official's campaign,'' Brnovich said.
In the same opinion, the attorney general also said a separate provision barring city workers from engaging in political activity on city property is overly broad.
"The city property restriction ... encompasses city streets and parks -- First Amendment forums,'' Brnovich said. "It is also written to ban employees from engaging in protected activities even when they are doing so on their own, off-duty personal time.''
But he had no legal problem with cities keeping their employees from working on a candidate campaign, pointing out there is a similar statute governing state employees.
And he said it parallels the Hatch Act which limits certain partisan activities of federal workers.