With the approaching election year, we can anticipate a high level of political activity from the public to support their views of what should be the country’s future. No doubt, at times this political activity will encroach on the workplace, and for public agency employers, this can create unique problems. State statutes and agency rules limit the political activities of government employees, but at the same time those employees have free speech rights under the U.S. Constitution’s First Amendment, and can sometimes successfully assert those rights against their employer if the employer attempts to limit their speech.
As agencies look forward to 2024, advance planning will help maintain an orderly, fair, well-functioning, and legally compliant operation. This post describes various standards for agency management to keep in mind.
Employee Free Speech on Social Media, at Events and Rallies, and in the Office
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 disruption of a government agency’s operations against the importance of the speech interest at issue. As Courts have phrased it, the balancing is “whether the [state]’s legitimate administrative interests outweigh the employee’s First Amendment rights.”
Suppose a city employee posts publicly on social media that he supports one side in the upcoming election, and harshly denigrates anyone who supports the other side. Then suppose coworkers complain, arguing that they have needlessly suffered an insult from the employee and this has inhibited their productivity. The answer to the existence of First Amendment protection will depend on application of the three elements described above. First, the speech will be on a matter of “public concern” since it relates to an issue, the Presidential election, of great importance to the public at large. Second, since the employee posted during off-work time and without any connection to job duties, their social media speech will pass the “official duties” hurdle of the First Amendment protection test, and proceed to the third element. In that element, the balancing test, Courts would look to whether the speech has disrupted the operations of the agency – would simply offending coworkers be enough? Some cases involving politics do have sufficiently egregious facts and level of acrimony that the disruption test will favor the employer, and result in no constitutional free speech protection for the employee’s statements.
On the other hand, what about a reference librarian at a county library who feels it is their duty to mention their own political views to patrons any time they answer a reference question? Answering reference questions is in the librarian’s “official duties,” and no First Amendment protection should exist for them in their speech in carrying out this duty (at least not as to their government employer). The same answers would hold for speech, political or otherwise, rendered pursuant to any employee’s “official duties,” be they a police officer, building inspector, firefighter, or other type of worker. (There is an exception to this “official duties” rule for certain work by professors, as described in LCW’s prior post.)
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 Government Code provides that public agencies should not place restrictions beyond these, however. Section 3203 provides: “no restriction shall be placed on the political activities of any officer or employee of a state or local agency.”
Excessive Workplace Discussions About Politics
What if employees do not actively “electioneer” at the office, but do distract themselves with lengthy discussion and debates about the election. Public employers should and generally do have rules that prohibit using excessive personal time during work hours. There is nothing wrong with invoking these rules in this circumstance, as long as agencies apply the rules without showing favoritism to one side in a debate or issue. The First Amendment generally authorizes rules at an agency’s office that may affect speech as long as the rules qualify as “reasonable” and “viewpoint-neutral.”
Political Activities in Uniform
California statutes prevent public employees from being in uniform when engaging in political activities. 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.” As to public safety officers and firefighters in particular, California law provides that their employers cannot prohibit them from engaging in “political activity,” except when they are on duty or when they are in uniform. (Gov. Code, §§ 3302, subd. (a), 3252, subd. (a).)
Coercing or Controlling Employee Political Activities
Next, public agencies should never appear to be trying to control or coerce their employees into voting a certain way or holding particular political views. Labor Code section 1102 provides: “No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.” Labor Code section 1101 prevents employers from promulgating rules that have the same effect. It provides: “No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics . . .” or “(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.” Public employers have strong arguments that these particular statutes do not apply to them, given current case law interpreting the Labor Code. Nevertheless, the safest course is altogether to avoid any control or coercion of the type prohibited by these statutes.
Employee Use of Any Agency Resources for Partisan Politics
What if an employee attempts to use copy machines, office supplies, office e-mail, office computer systems, or other resources for political activity related to an election, and actually presents a good reason why this use advances a bona fide purpose of the agency? They could claim educational benefit or public outreach. California law prohibits this use. Merely by way of example, 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 . . . . .”
Another example, for California public educational institutions in particular, is Education Code section 7054, which 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. (There are exceptions described in Section 7054.1, however, for allowing 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.)
Questions regarding free speech and political activities of agency employees can present complex legal issues, and in most situations, it is prudent to seek advice of counsel.