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AG says Pima County ban on political contributions unconstitutional

By: - December 18, 2020 4:23 pm

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Pima County’s prohibition on its employees contributing money to candidates for county office violates both the U.S. and Arizona constitutions, according to Attorney General Mark Brnovich. 

In a nonbinding opinion issued on Thursday, Brnovich said the nearly 30-year-old policy impermissibly infringes on the free speech rights of Pima County employees. The attorney general authored the opinion at the request of Sen. Vince Leach, a Tucson Republican.

The 1992 policy bars county employees from contributing money or soliciting contributions for county candidates. County supervisors passed the rule as an ethics reform to prevent elected officials from pressuring employees to contribute to their campaigns.

Brnovich said the ban runs afoul of the First Amendment’s guarantee of free speech, which the courts have found includes the right to political activities, including contributing money to campaigns. And he said it also violates a provision of the Arizona Constitution stating, “Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.”

While Arizona courts have recognized that some limits on government employees’ political activities is permissible, Brnovich said the county and state have less obtrusive laws and policies designed to prevent corruption and ensure political neutrality. 

State law, he said, already prohibits county employees from using their authority to influence subordinates’ political activities. And Pima County has policies in place barring employees from holding financial or other interests that could negatively affect the county. Another anti-bribery policy bars employees from accepting or soliciting anything of value to influence their official activities, Brnovich said.

The attorney general also noted that courts have struck down similar restrictions in Ohio and Oregon.

“For similar reasons that the state statutes were struck down in Oregon and Ohio, Pima County’s Contribution Ban here is unconstitutional under the Arizona Constitution because the restriction on county employees’ free speech rights is not justified by the County’s interests,” Brnovich wrote.

Pima County administrator Chuck Huckleberry said the policy was enacted to advance merit system employment policies, including guarantees that elected officials couldn’t pressure employees for campaign contributions. He noted that in 1971, six employees of then-Sheriff Walden Burr were indicted for, among other things, selling jobs and promotions to deputies.

“Our concern and my concern is that this facilitates a return to the time when you bought your job based on political contributions rather than earning it based on your qualifications,” Huckleberry said of the possibility that the county’s policy could be rescinded.

Huckleberry said the Pima County Board of Supervisors will likely meet in January to discuss whether to keep, rescind or modify its policy on political contributions by county employees in response to Brnovich’s opinion.

It’s unclear whether other counties have similar policies. According to the League of Arizona Cities and Towns, it’s commonplace for cities to have similar policies barring employees from contributing to municipal candidates.

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Jeremy Duda
Jeremy Duda

Jeremy Duda is a Phoenix native and began his career in journalism in 2003 after graduating from the University of Arizona. Jeremy Duda previously served as the Mirror's associate Editor. Prior to joining the Arizona Mirror, he worked at the Arizona Capitol Times, where he spent eight years covering the Governor's Office and two years as editor of the Yellow Sheet Report. Before that, he wrote for the Hobbs News-Sun of Hobbs, NM, and the Daily Herald of Provo, Utah. Jeremy is also the author of the history book “If This Be Treason: the American Rogues and Rebels Who Walked the Line Between Dissent and Betrayal.”