By Frank Foster

In the private sector a current problem on CEO selection and compensation is that many CEO’s of the fortune 500 select their own boards, play golf with them, and set one another’s compensation.  Rigorous over sight is absent, and conflict of interest is rampant and the resulting CEO compensation has hurt US competitiveness in global markets.

 

The lack of even preserving the independence of CPA audit firms (hire them for consulting services too) has made even the disclosure documents you can read on corporations something approaching fiction.  Additionally the temporary refusal to carry CEO stock options as a liability on the books has had its own tragic legacy of bankruptcies with resulting corrective legislative action.

The public sector can have similar corporate governance issues.  However, in the public sector certain legislative efforts to control or avoid conflicts of interest or at the very least the appearance of a conflict of interest has had a mixed reception by the courts depending on the scope of the political activity prohibited, the degree of partisan nature of the elected office involved and the nature of the public employment of the affected employee.  Why a mixed result or judicial reaction when the legislative effort has such a salutary objective of increasing public confidence in public institutions?  The employee in such situations is exercising fundamental rights of speech and association so the regulation thereof must undergo close scrutiny of being as narrowly tailored as possible and in fact be furthering an important governmental interest.  This places the courts into a difficult and complex task of balancing of interests.

1. What is the Pickering Balancing test?

In weighing control of public employee speech the U.S. Supreme Court in Pickering v. Board of Education School District 205, 391 US 563 at 569 (1968) said that each case had to be evaluated in accordance with the following six factors:

The thorniest of these six issues has been speech that is a matter of public interest.  When is speech deliberate malicious disruptive conduct?  When is speech on a matter of genuine public interest versus mere electioneering?

The United States Supreme Court has found the following to be protected speech on matters of public interest: (1) criticism by a teacher about the allocation of money between athletics and education; (2) a teacher’s comments to the state legislature about whether a college should be elevated to four year status; (3) a teacher notifying a radio station on a dress and appearance code; (4) a private complaint about race discrimination; and (5)comment to a co-worker that  “if they attempt to assassinate the President again I hope they get him” were all held to be protected speech on matters of public interest.

Similarly, the Eighth Circuit has held the following to be matters of public concern protected by First Amendment rights: (1) speech on theories of educational practice; (2) a deputy sheriff’s allegation that promotions were based on  “a good ole boy” network; (3) American flag patch on uniform during Gulf war; (4) professor’s allegation of business community control of school board; (5) engineer’s allegation of dam’s design flaws; (5) report that supervisor requested that a file be hidden; (6) social worker’s criticism of employer’s child abuse policy; (7) educator’s comments to media on confidentiality of student records; (8) prison warden’s complaints to supervisors on corruption and lack of adequate security; (9) disclosure of illegal wire tap; (10) allegations of observed sexual  act misconduct between a secretary and former manager; (11) allegation of age discrimination.

I can find only a handful of cases going the other way.  In other words when weighing the potential disruption to the governmental workplace versus the fundamental right of speech, the courts in the gray area cases find for the employee and the speech as protected (see Code 3, “Why Firing the Whistleblower Exercising Free Speech Makes You Fell Better Only Until You Get Sued” (Third Quarter 2005) pp.11-12).  These results have further significance because of the potential piercing of sovereign immunity and official immunity via 42 USC 1983 claims (see Code 3, “A Large Exception to Sovereign Immunity” (Third Quarter 2002) p.11), including naming officials in their individual capacities Id. p11.  No doubt the reservation of the general right of state merit employees to express opinions on political subjects and even candidates is retained in section 36.155-3 RSMo just out of cautionary respect for just such potential consequences.
    
Consequently if we are going to attempt to limit administrator or employee participation in campaigns involving board members or political activity, we should attempt to do so as narrowly as possible and still achieve the goal of a harmonious work place. 
 
2. I have heard that there are limits on federal public service employees and their political activity.  Is that true?

Well what you may be thinking of is the Hatch Act (5 USC 7324(a)(2).  Its limitations on political freedom and activity have been reviewed by the US Supreme Court twice and found justifiable (see United Public Workers of America v. Mitchell, 330 US. 75 (1947); U.S. Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548 (1973)). 

However, the example of federal civil service employees gets more complicated because the Hatch Act was amended in 1993 to permit government employees to take active part in the political management or in political campaigns provided that they do not use their official position to influence an election; solicit contributions (except for certain categories of individuals), run for a partisan office; or solicit or discourage political activity by entities with certain business issues pending before the employee’s agency.  So in short the Hatch Act is not nearly as restrictive as it used to be.

3. What about the state statute that prohibits teachers from managing campaigns for the Board of Directors?

Section 168.130 RSMo prohibits a school teacher from management of a campaign to elect or defeat a school Board member.  The constitutionality of this provision was ruled upon favorably by the Missouri Attorney General’s Office Op. Att’y Gen. 353 (1960) but that Opinion predates the Pickering balancing test by eight years.  More importantly the statute limits the restriction to management of a campaign and does not on its face prohibit mere participation in a campaign for or against a school board member.

4. What about the state statute on police officers? 

Section 88.830 RSMo prohibits police officers from making any financial contribution for the promotion of any political party, political club, or any political purpose whatsoever.  The Missouri Supreme Court ruled that the special need for orderliness and no corruption in police departments justified this limitation on  First Amendment rights (see Pollard v. Board of Police Commissioners, 665 S.W.2d 333 at 359 (Mo. banc 1984)).

5. What if the prohibitions and restrictions on public employees are made by local ordinance or charter and go further than state statutes?

Even broader prohibitions and limitations than mere contribution of finances made at the local level have tended to withstand judicial scrutiny when applied to police officers.  A Municipal charter that prohibits police officers from electioneering or taking an active part in a campaign has been sustained (Ferguson Police Officers Ass’n v. City of Ferguson, 670 S.W.2d 921 (Mo. App E. D. 1984)).  A prohibition on police officers running for office passed constitutional muster (Otten v. Schickler, 655 F.2d 142 (8th Cir. 1981)).  A City rule prohibiting holding office within a partisan political party was upheld in LaMontaign v. St. Louis Development Corporation, 172 F.3rs 55, 558 (8th Cir. 1999)).

A ban on political contributions by officers and employees of the Kansas City Police Department was upheld in Reader v. Kansas City Board of Police Commissioners, 733 F.2d 543 (543 (8th Cir. 1984), cert denied,  479 U.S. 1065 (1987)).

However, a summary judgment and injunction were granted against a ban on all city employees from wearing political buttons, displaying bumper stickers or signs, or participating in political campaign activities because the City could not show real as opposed to conjectural harms (see Goodman v. City of Kansas City, 906 F. Supp. 537 (W.D. Mo 1995)).



6.  What if the ordinance is attempted to be applied to a spouse?

Attempting to apply the ordinance that broadly does give the spouse a chance to at least assert standing to challenge the ordinance on a First Amendment basis (see International Association of Firefighters, Local 2665 v. City of Ferguson, 283 F.3d 969 (8th Cir. 2002).  However, both the terminated husband and the spouse may lack standing if they can not show that the ordinance had a chilling effect on their speech; husband was allegedly terminated following the wife’s criticism of the city council members (see Thompson v. Adams, 268 F.3d 609,613-614 (8th Cir. 2001)).        

7. Do the limits on State merit system employees’ political activities of any guidance here?

Section 36.150-5 RSMo prohibits merit system employees from being a candidate for a partisan public office or even a nonpartisan political office if the office conflicts with his or her official duties.  Consequently a state merit system employee could not run for sheriff (see Asher v. Lombardi, 877 S.W.2d 628 (Mo. banc 1994)).

Section 36.155-1 RSMo permits an employee to take part in the activities of political parties and political campaigns.  Also, section 36.155-3 RSMo on its face reserves the right of employees to vote and express their opinions on issues.  However, section 36.155-2 RSMo prohibits a state merit system employee from: (1) using his or her office for influencing or interfering with the results of an election; (2) knowingly solicit, accept or receive a political contribution from any subordinate employee; (3) run for a partisan nomination or candidacy; (4) solicit or discourage political participation based on employment, a contract, or license pending before the employee’s agency.

Section 36.157 RSMo says that a merit system employee may not engage in political activity: (1) while on duty; (2) in a room or building occupied in the discharge of official duties; (3) by utilizing state resources or facilities; (4) while wearing a uniform or official insignia identifying the office or position of the employee; or (5) when using any vehicle owned or leased by the state or any agency or instrumentality of the state.

8. Based on these various state level statutes what can we do?

No state statutes expressly address any restrictions or prohibitions on ambulance district administrators’ or employees’ political activity or attempted involvement in ambulance district board elections or appointments.  Yet public confidence in ambulance districts is a factor and a salutary goal.  Hence my recommendations would be follow closely those state statutes that affect other similar areas of concern.

For example a possible ordinance could do some of the following things BUT notice with certain very important exceptions. (1) Prohibit district employees including the district administrator from managing an ambulance district board member candidates’ campaign per 168.130 RSMo.  However, a total ban on any involvement in board campaigns probably would not pass constitutional muster.  The Ordinance would be overly broad in application, and therefore should follow the permissibility of state merit system employee involvement in political campaigns (see 36.155-1 RSMo). (2) Prohibit campaign contributions to a board candidate’s campaign per 88.830 RSMo. (3) Prohibit use of the employee’s official position to influence a Board election per 36.155-2(1) RSMo. (4) Prohibit solicitation or acceptance of campaign contributions for a board candidacy from a subordinate employee (see 36.155-2(2) RSMo).  (5) Make a prohibition against running for the Board while still an employee of the District would probably pass muster per 36.155-2(3) RSMo.  However, I would strongly recommend not including a flat prohibition against running for any partisan office contrary to that same provision as being overly broad.  The same level of governmental interest for keeping state level merit system employees out of partisan politics is not at the same level of concern at the local level of government.  Example some individuals are ambulance district administrators and County Coroners without any difficulty or conflict of interests whatsoever.  Instead a case by case analysis via the common law doctrine of incompatible public offices should be made in lieu of any flat prohibition on running for partisan public offices. (6) Prohibit a solicitation or discouragement of a contract with the District based on support or non support by the contractor for a particular board whether done by a District employee (or Board member for that matter) would pass muster as an obvious anti-corruption provision similar to section 36.155-2(4) RSMo.

The most difficult area for me to analyze has been the prohibitions contained in section 36.157 RSMo and its obvious conflict with the Kansas City Ordinance that was struck down in Goodman v City of Kansas City supra.  After a lot of soul searching and self rumination I have decided that section 36.157 RSMo should prevail over the Goodman case. To reiterate, section 36.157 RSMo says that a merit system employee may not engage in political activity: (1) while on duty; (2) in a room or building occupied in the discharge of official duties; (3) by utilizing state resources or facilities; (4) while wearing a uniform or official insignia identifying the office or position of the employee; or (5) when using any vehicle owned or leased by the state or any agency or instrumentality of the state. These restrictions in my mind are not so severe as to rise to constitutional level as to significantly interfere with the exercise of speech and associational rights.  This provision merely prohibits the use of the resources, accoutrements, and indicia of office to influence political campaigns.  In my mind a similar prohibition against district employees in influencing board elections while on duty, in district buildings, or in uniform is not an overly severe restriction.  I would caveat that campaigning for district tax increases or bond issues while in uniform would not be a violation of the local ordinance or section 115.646 RSMo.

Finally, the prohibition against coercing co-workers or subordinates from engaging in political activity contained in 36.159 RSMo could also be in local ordinance form for prohibiting such conduct in regard to ambulance district board elections.



Summary and Conclusions:

So no management of a board campaign, no contributions of money, no on duty electioneering and no coercion or even solicitation of co-workers or subordinates for board elections would appear to pass constitutional muster.  Lesser involvement while off duty would and should be left alone.    

 

 

ORDINANCE PLACING LIMITS ON  ADMINISTRAADMINISTRATOR &  BOARD ELECTIONS.doc