Brnovich: County’s political contributions ban violates 1st Amendment

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Local governments cannot stop their employees from donating to candidates for local offices, Attorney General Mark Brnovich concluded.

In a formal legal opinion, Brnovich said the no-donations policy put in place by Pima County supervisors nearly 30 years ago barring contributions to county candidates violates the First Amendment rights of workers.

The attorney general acknowledged that the purpose behind the policy was to ensure that there was no link between whether a worker donates and decisions by a supervisor around that employee’s status and salary. And Brnovich said that is a legitimate concern.

But in his 13-page opinion, he said there are less intrusive ways to achieve that goal than quashing the ability of county employees to contribute to candidates of their choice.

Anyway, Brnovich opined that the amount of money involved – there is a $6,250 limit on donations – is not enough to cause concern.

What he does not say, though, is that state lawmakers changed the statutes several years ago to allow officials serving four-year terms to actually collect more from any individual. They revised the law to make the limit apply to any two-year election cycle.

That effectively allows a supervisor, sheriff, mayor or council member in a four-year term to take in $12,500. And if the employee is married, the limit is $25,000.

That fact did not escape Pima County Administrator Chuck Huckelberry.

“It should have put the number in and it should have put ‘by cycle’ and it should have put ‘spouse,’” he said. “You add those together and you get the real money.”

That, however, was not the sole reason why, according to Brnovich, a ban is unnecessary.

“State law prohibits (county) employees from using the authority of their positions to influence the vote or political activities of any subordinate employee,” he noted. And the attorney general said the county already has other policies from holding financial or personal interests that could negatively affect the interests of the county, bars using their official positions for personal gain or financial advantage, and prohibits employees from accepting “anything of economic value” designed to influence their conduct.

“These laws and policies reduce the likelihood that an elected official will improperly influence the vote or reward any county employee who contributed to the official’s campaign,” Brnovich wrote.

Less clear is the legal effect of the opinion.

Unlike a court order, an opinion does not order the county to change its policy. Nor, unlike some other reviews of local laws by the attorney general, does it come with a threat to withhold state aid for failing to fall in line.

Huckelberry said the county attorney will present the opinion to the supervisors, likely at their second meeting in January, and let them decide what to do. But he believes there is a legitimate reason for the policy.

“This is kind of returning to a time when you bought your job based on political contributions rather than earning it based on qualifications,” he said.

The reason Brnovich got involved was a request for a formal opinion by Rep. Vince Leach, R-Tucson. Leach said he received inquiries from some county workers who question why that status keeps them from using their dollars to elect those running for supervisor, sheriff, assessor, recorder or any other county position. Leach wanted a formal opinion from Brnovich to back up his own belief that money is the same as speech and that a ban on contributions is effectively a ban on speech.