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Ask Rich: Campaigning shouldn’t take place when employees are on the clock

Rich Ornstein

Question: I’ve got an employee whose uncle has filed for election to a city office. It’s all she talks about. Kris is a great employee, but her uncle is a jerk. She thinks that she is his campaign manager. Kris has solicited donations from her fellow employees and has asked them to work parades on her uncle’s behalf. Since Uncle Buck filed for office, her work has slowed down and my employees aren’t happy. This has got to stop! Can I tell her that she can’t campaign for her uncle?

Answer: No, you can’t tell her that she can’t campaign for her uncle, even if he is a jerk, unless you want to experience a First Amendment-based federal law suit. Employees, with some exceptions, have the right to participate in political campaigns. However, that doesn’t mean that she has the right to disrupt your office or campaign while she is on the clock.

Public employees have expansive First Amendment free speech rights when compared to the private sector. These rights generally include the ability to express their views on matters of public concern, including political matters, and to participate in the political arena, up to, and including, the right to run for office. However, these rights aren’t unlimited and can be curtailed via federal and state law.

Examples of county positions with restricted political speech rights include county emergency management directors (see KRS 39B.020(3)(c)) and deputy sheriffs operating under a deputy sheriff merit board (see KRS 70.267(1)).  Emergency management directors can “…hold no partisan elective office, nor file for, seek, or campaign for any partisan elective office…” Deputy sheriffs covered by a merit board cannot “…directly or indirectly solicit, receive, or be in any manner concerned in receiving, soliciting, or publicizing any assessment, gift, subscription, or contribution to or for any political party or candidate for public office.” Unless a county position has statutory restrictions similar to those just referenced, county employees can fully participate in the political process.

The First Amendment doesn’t protect employees from disciplinary action when they campaign on work time. Kentucky Constitution §§ 3, 171 & 179 have been interpreted to generally mean that public funds may only be used for public purposes.

As relates to county employees, employees are supposed to focus on their work when they are on the clock. Campaigning for a friend or relative is not a work-related matter and should not occur during work hours. This conclusion has been supported by the Kentucky Attorney General multiple times. In OAG 77-732, the Attorney General opined:

Unless the county employee is under a civil service program that prohibits covered employees from engaging in political activity…there would be no legal restriction on county employees running for public office while retaining their position as a county employee…

On the other hand, county employees…should not use county vehicles for the purpose of campaigning and should restrict their campaigning to after office hours.

Note that this Opinion also references county vehicles. County employees should not use county equipment in their political activities. Use of equipment such as a work copier for political purposes is not permissible.

An additional exception relates to those employees who decide to run for office against the incumbent where the incumbent has sole termination authority. In Greenwell v. Parsley, 541 F.3d 401 (6th Cir. 2008), the United States Sixth Circuit Court of Appeals acknowledged public employees’ First Amendment right to speak out on matters of public concern, but ruled that First Amendment protections do not extend to candidacy alone. In this case, the deputy was terminated by the sheriff for running against the sheriff. The Court determined that the First Amendment protections did not protect ‘the viper in the nest.’ However, if the deputy had only campaigned on behalf of someone running against the incumbent sheriff, the First Amendment would likely have protected the deputy from disciplinary action, including termination. As county judge/executives don’t have full hiring/termination authority, this case may not be applicable to their employees. 

In summary, public employees generally have the right to participate in the political process as long as they participate during personal time. Certain public employment positions restrict an employee’s right to engage in the political process, with those restrictions tending to be limited in number and statutory in nature. Last, while a public employee cannot generally be terminated by an incumbent for campaigning against the incumbent, First Amendment protections are limited when the employee runs against the incumbent.

Call (800-264-5226) or email me (rich.ornstein@kaco.org) if you have questions regarding this or any other matter. And if you have suggestions for other items you’d like me to cover, let me know.  

Legally Yours,

Rich

Kentucky Association of Counties
400 Englewood Drive, Frankfort, KY 40601