Government Employees and Election Campaigns

Why Are Campaign Ethics So Important? What is the purpose of a political campaign? Ideally, a campaign clearly outlines the positions and character of the candidates so that voters can make informed decisions about whom they wish to see elected. Any tactic that interferes with this clarity: deception, financial influence, etc. would then be unethical, even if used by a candidate with the best interest of his or her electorate at heart.

Why should you Care? Candidates and Potential Candidates Supporters/Opponents of Candidates Measure Campaigns Supervisors Counsel/Advisors to Independently Electeds Agencies Impacted by Proposed Measures Candidates Friends? Causes? Support or oppose? Advise (especially agency heads and independently electeds! Supervise

Common Issues Use of resources Use of time and space Use of title, position, or influence Display of materials Supervision Statements of electeds or the agency itself

The Law RCW 42.52.180 (formerly RCW 42.17.130) WAC 292-110-010, -020, -030 Executive Ethics Board Advisory Opinions No. 00-08 No. 02-02A No. 14-01 RCW 42.23 Ethics in Local Governments Local Ethics Codes (MRSC website)

The Law The Hatch Act AGO 1975 No. 23 AGO 1979 No. 3 Position-Specific Regulations like the Code of Judicial Conduct Public Disclosure Commission

RCW 42.17A.555 No elective official nor any employee of his or her office…may use or authorize the use of any of the facilities of a public office or agency, directly or indirectly, for the purpose of assisting a campaign… RCW 42.17A.555 does not restrict the right of any individual to express his or her own personal views concerning…any candidate if such expression does not involve a use of the facilities of a public office or agency. (WAC 390-05-271)

RCW 42.52.180 No state officer or state employee may use or authorize the use of facilities of an agency, directly or indirectly, for the purpose of assisting a campaign for election of a person to an office or for the promotion of or opposition to a ballot proposition.

RCW 42.52.180 Knowing acquiescence by a person with authority to direct, control, or influence the actions of the state officer or state employee using public resources in violation of this section constitutes a violation of this section.

RCW 42.52.180 Facilities of an agency include, but are not limited to, use of stationery, postage, machines, and equipment, use of state employees of the agency during working hours, vehicles, office space, publications of the agency, and clientele lists of persons served by the agency.

Exceptions Under .180(2) The Legislature (as a body) and ballot propositions Elected officials, press conference or specific inquiry, “no measurable expenditure” Official legislative websites, blackout period Activities that are part of the “normal and regular conduct of the office or agency.” Elected officials and legislators, communications about ballot propositions that “foreseeably may affect a matter that falls within their constitutional or statutory responsibilities.”

WAC 292-110-030 measurable expenditure For purposes of RCW 42.52.180, “measurable expenditure” means any separately identifiable cost or specific portion of a cost that is beyond the normal and regular costs incurred by the agency in responding directly to a specific media inquiry from the media, a constituent, or any other person.

WAC 292-110-020 Working Hours (for these purposes) Fixed Schedules Officers and Employees without Fixed Schedules Lunch Breaks Official Leave Status Overtime Hours Executive Branch Independently Electeds

Work hours WAC 390-05-273 (Defines normal and regular conduct defines conduct which is lawful and usual) Agencies may set the definition of work hours for their employees. For example, to the extent that an agency defines the lunch hour as a non-work hour, activities to support or oppose a candidate or ballot measure that do not use public resources and that are held away from agency facilities are permitted during the lunch hour.

Ethics Advisory Opinion 00-08 Use of Titles Elected, no disclaimer necessary Non-elected “Thus, RCW 42.52.180 prohibits non-elected state officers and employees from using his or her job title in connection with the campaign for the election of a candidate or a ballot initiative, unless the statement is accompanied by the disclaimer that the officer or employee is speaking only for themselves and not for their agency.” Disclaimer: Titles are provided for identification purposes only, Public employees speak only for themselves and do not endorse on behalf of their office or agency.

Ethics Advisory Opinion 02-02A Display of Campaign materials Political Buttons on Personal Clothing Bumper Stickers Political signs In personal vehicles In office windows

Hatch Act Federal law passed in 1939 limits certain political activities of federal employees, as well as some state, D.C., and local government employees who work in connection with federally funded programs. The law’s purposes are to ensure that federal programs are administered in a nonpartisan fashion, to protect federal employees from political coercion in the workplace, and to ensure that federal employees are advanced based on merit and not based on political affiliation.

Hatch Act Federal employees are prohibited from engaging in political activities while wearing their uniform (or official insignia) or while in a federal vehicle. (one of 5 primary restrictions of the HATCH Act for Federal Employees) https://osc.gov/Pages/HatchAct.aspx

Guidelines for Local Government Agencies (PDC) Guidelines for Local Government Agencies in Election Campaigns (Public Disclosure Law Re: Use of Public Facilities in Campaigns) https://www.pdc.wa.gov/learn/guidelines-local-government

Gut Check

Practical Agency Considerations Qualitative Expectations On the clock and off the clock?

Practical Agency Considerations Expectations regarding State workspaces and vehicles

Practical Agency Considerations

Unique considerations for Prosecuting Attorney campaign Cannot comment on any current/pending cases Cannot comment on any incidents or issues that may become a criminal case Respond to opponent with facts

Hypothetical I serve by appointment on a commission that governs a state agency. I serve part time and receive no compensation except for attending commission meetings. The other day, I attended a fund raiser in support of an initiative measure that would, if approved, put the commission on a much more solid financial footing. I attended at my own expense and made a contribution to the campaign, which was properly reported. During the announcements, the announcer, specifically against my request, introduced me to the crowd as “Vice Chair of the X Commission.” I quickly pointed out that I was attending as a private citizen. Was the use of my title a use of a “public facility or property”?

Hypothetical The head of my agency, Q, is an elected executive officer who is a candidate for public office again this year. A close friend wants to support Q, both with financial contributions and volunteering time. I do not know the address or telephone number of Q’s campaign office. Would it be all right to send an office voice-mail or e-mail to Q, passing along my friend’s name and suggesting that Q forward this information to the campaign?

Hypothetical Everyone in my work unit is a strong opponent of Ballot Measure B. We have all been involved in the anti-B campaign, and we have been careful not to use either our state time or any agency facilities, such as paper, computers, or copy machines, in our campaign work. We need to have a campaign meeting next weekend, and the organizers are having trouble finding a place for the meeting. Our agency has a large conference room that is not ordinarily open to the public, but that will not be in use during the weekend. Can we offer the use of the room for the campaign meeting?  

Hypothetical I am the regional office manager for a state agency and I supervise about 50 employees. My close friend D is running for state senator. May I invite all my office to a Saturday morning event at my home where they can meet D and will have the opportunity to contribute to the campaign?

Hypothetical  My coworker and I have strongly different political philosophies. During the last presidential election campaign, she wore a large button promoting a candidate I find repugnant, and she placed the candidate’s picture in her workstation next to the pictures of her husband and her cat. Would it be appropriate for me to ask our supervisor to ban such overt displays this year?

Hypothetical  Initiative J would, if approved by the people, repeal the tax that supports 90% of my agency’s activities. The legislature might replace some of the money if the tax were repealed, but it is virtually certain that our agency’s budget would be severely reduced. Can we use staff time and agency resources to assemble and publish a sheet that would just “show the facts”─that is, that enactment of Initiative J would effectively end all of the popular programs my agency is involved with?

Lightning Round Scenarios Can I use my work email system to solicit signatures for a ballot proposition? Can we hold a political rally on the steps of the capitol building? Can an elected legislative body collectively vote to support a ballot proposition? Can a candidate post on their website that they are endorsed by Secretary of State Kim Wyman?

Lightning Round Scenarios Can I send kickoff invitations to people at their public email addresses? Can I use a state-funded database, like Westlaw, to prepare for a debate or forum? Can an appointed committee, board, or commission take an official position for or against a ballot proposition?

Lightning Round Scenarios Can I hold a campaign committee meeting in a state building conference room over the lunch hour? Could university or college facilities be used for political conventions, meetings, and candidate forums? Can an elected official make a statement in support of a ballot proposition at an open press conference? Can a candidate on the campaign trail state that they are currently an Assistant Attorney General?

Lightning Round Scenarios Can a supervisor contact members of her team through personal emails to solicit donations for a campaign against an initiative? What if it were an initiative that would gut the funding for the agency the team works for? An agency has a bulletin board in a breakroom, which is available to all for postings. Can the supporters of an initiative cover the entire bulletin board with literature supporting the initiative? A proposed initiative will impact an agency’s duties. Agency staff conduct research to determine the extent of the impact and the cost to the state if the initiative passes? What if the agency is reasonably certain that the opponents of the initiative will obtain the research and use it?

Lightning Round Scenarios An independently elected official’s agency receives a public records request for the official’s calendar entries while the official is a candidate for election. Can they slow walk the response? Where two competing initiatives are proposed, could an agency publish a side by side comparison that includes likely impacts on the agency’s work?