This year’s presidential election will take place in only about a month and a half, and in the final weeks, one can expect an increase in political discussion and debate. This discussion and debate could certainly continue after the election as well. This activity could make its way into the government workplace, and public agencies should prepare to respond appropriately and lawfully. The First Amendment requires that public employers respect certain employee free speech rights, particularly concerning politics. At the same time, laws prohibit use of government resources for political activity. Government employers also have rights to safeguard their operations from disruption.
This post collects and describes some of the primary laws addressing the issues government employers face for yet another eventful national election.
Employee Free Speech in the Office, on Social Media, and Elsewhere
Political speech rests at the core of what the First Amendment protects, and Courts only reluctantly allow a government agency to punish or attempt to censor such speech. This is true even for those who work for the agency and engage in political speech in their personal capacity.
At the same time, statements by employees on social media that harm or threaten to harm the agency’s operations in a sufficiently severe way can serve as the basis for discipline, notwithstanding constitutional free speech protections. For example, the employee could disclose on social media important and legitimate confidential information of the agency, or could misrepresent that they speak for the agency on a social issue related to an election. Also, statements by law enforcement officers in the course of political discussions that show prejudice or bias, if made public, can give the impression the officers will fail to protect certain segments of the community adequately, and may make fellow employees sufficiently uncomfortable in the workplace that the officers have effectively disrupted the agency’s operations. If the impacts on the agency are severe enough, the officers could not claim the First Amendment protects them from being disciplined.
Under First Amendment principles, a public employee cannot be disciplined for their speech (1) on matters of “public concern,” (2) that is outside the scope of the employee’s “official duties,” and (3) that prevails in a balancing test which weighs, in essence, disruption of a government agency’s operations against the importance of the speech interest at issue. Courts have described the balancing as “whether the [state]’s legitimate administrative interests outweigh the employee’s First Amendment rights.”
Political Activities on Work Premises or During Work Time
Under California law, public agencies can prohibit employees from engaging in “political activities” at the actual workplace, even including political activities during personal time at work. Government Code section 3207 provides: a local agency “by establishing rules and regulations, may prohibit or otherwise restrict the following: (a) Officers and employees engaging in political activity during working hours” and “(b) Political activities on the premises of the local agency.” The agency should promulgate a workplace rule or regulation to describe this type of prohibition.
The Government Code provides that public agencies should not place restrictions beyond these, however. Section 3203 provides, “Except as otherwise provided . . . no restriction shall be placed on the political activities of any officer or employee of a state or local agency.”
Political Activities in Uniform
California law prohibits public employees from engaging in political activities while in uniform. Government Code section 3206 provides that “[n]o officer or employee of a local agency shall participate in political activities of any kind while in uniform.” For public safety officers and firefighters specifically, California law provides that their employers cannot prohibit them from engaging in “political activity,” except when those employees are on duty or when they are in uniform. (Gov. Code, §§ 3302, subd. (a), 3252, subd. (a).)
Employee Use of Agency Resources for Partisan Politics
California law prohibits the use of government agency resources for partisan political activities related to an election – this includes copy machines, office supplies, office e-mail, office computer systems, or other resources. The California Supreme Court in Stanson v. Mott in 1976 held squarely that agency use of resources to support one side in an election (in that case to support passage of a bond measure) violates state law. Enacted in 2001, Government Code section 54964 writes into law the Stanson holding. In addition, Government Code section 8314 provides, “It is unlawful for any elected state or local officer, including any state or local appointee, employee, or consultant, to use or permit others to use public resources for a campaign activity . . . .”
For California public educational institutions in particular, Education Code section 7054 provides, “No school district or community college district funds, services, supplies, or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate, including, but not limited to, any candidate for election to the governing board of the district.” The statute imposes criminal penalties for a violation.
Education Code section 7054.1, however, provides a carve-out related to bond issues that are on the ballot. It allows board members and administrators to appear before citizen groups and provide reasons why the board called a bond election and allowing responses to inquiries from the citizen groups.
Time Off to Vote
California law provides employees the right to take enough time off from work to vote, if they are unable to do so during off-work hours that the polls are open. Elections Code section 14000 subdivision (a) provides, “If a voter does not have sufficient time outside of working hours to vote at a statewide election, the voter may, without loss of pay, take off enough working time that, when added to the voting time available outside of working hours, will enable the voter to vote.” Section 14000 subdivision (b) provides, “No more than two hours of the time taken off for voting shall be without loss of pay.” (Emphasis added.)
Any additional time needed by the employee to vote can be unpaid unless a collective bargaining agreement or personnel rule provides otherwise. Further, under Section 14000 subdivision (b), time off for voting shall take place only at the beginning or end of the regular working shift, whichever allows the most free time for voting and the least time off from the regular working shift, unless the employee and employer agree to other arrangements. Under Section 14000 subdivision (c), if employees believe that they will need time off to vote on Election Day, they must give the employer notice at least two days before the election.
Conclusion
Questions regarding political activities and the government workplace can raise complex issues, and trusted legal counsel can help navigate the agency’s response. Also, a prudent administrator or manager will review the agency’s personnel and other policies in advance to be ready when issues do arise.