‘Resign To Hold Office’ Rule Upheld

Some public sector employers have so-called “resign to hold office” rules. Indiana, for example, has a statute that prohibits individuals from simultaneously holding elected office and being employed in the same unit of government. These rules prohibit law enforcement officers and firefighters from successfully running for public office and continuing to hold their jobs as employees.

“Resign to hold office” rules have been consistently upheld as constitutional in spite of repeated First Amendment free speech challenges. Courts routinely find that the governmental interests in “resign to hold office” rules override the speech rights of employees.

And so it was in Indiana. A group of five employees joined together to challenge a state statute with a “resign to hold office” rule. Matthew Claussen is a police officer in Hobart and serves on the Hobart City Council. Susan Pelfrey works in the water department for the Town of New Chicago while also serving on the New Chicago Town Council. Michael Opinker and Scott Rakos are firefighters in the City of Hammond and serve on the Hammond City Council. Juda Parks works as a police officer in East Chicago and serves on the East Chicago City Council.

A federal court rejected the five employees’ challenge to the state statute. The Court observed that “Courts across the nation have upheld far more burdensome restrictions on candidacy against First Amendment challenges, most applicable here outright bans on campaigning and candidacy and resign-to-run laws requiring would-be candidates to resign from their current office or employment to get on the ballot. The statute challenged here is far less onerous. Here, an employee can run for office and, should he win, choose between assuming office and continuing in his government job.

“In the resign-to-run context, the employee must quit his job and take a chance on the electoral process. If he loses the election, he is out of both the elected job and his civil service position. For this reason, whatever burden is imposed on the plaintiffs’ First Amendment rights in this case is much less than the burden placed on them in the resign-to-run context. And unquestionably, Indiana has a substantial and legitimate interest in preventing corruption and self-dealing or the appearance of those things.

“Weighing the factors in this case, it is clear that the government has an important and compelling interest in avoiding corruption or the appearance of corruption. As members of city or town council, the plaintiffs would have the authority under state law to vote for raises for municipal employees – including for themselves. It strikes me as entirely reasonable for the General Assembly to have wanted to avoid a situation where elected officials are allowed to feather their own nests.”

Claussen v. Pence, 2015 WL 7864571 (N.D. Ind. 2015).