[Disclaimer: This post is being offered for educational purposes only. It is not intended to be legal advice, nor am I creating any attorney/client privilege. The scope of this review is what is prohibited under Ohio law. Individual agency policies may vary. As always, I would advise anyone to independently consult with an attorney for questions about their legal rights in their particular situation.]
I’ve gotten at least one State employee who has e-mailed me an agency “policy” statement that suggests that any political activity by classified employees are prohibited on state property. The general structure is a memorandum that cites two sections of the Ohio Revised Code and the Ohio Administrative Code and then says something to the affect:
“Political activity on state time or property or using state resources is strictly prohibited.”
Here is a sampling of questions I’ve received from classified State employees on the issue of SB 5 referendum petitions and the workplace:
1. Does being involved in collecting signatures on the SB 5 referendum, on your personal time, constitute as “political activity” in violation of Ohio law?
2. Can the State target people who sign or circulate the petitions for layoffs?
3. Can an agency prohibit the training or collecting signatures on the SB 5 petition at the workplace, but on personal time?
A. Ohio law does not consider circulating a referendum petition on legislation as prohibited “political activity.”
The operative law is R.C. 124.57, which is the State’s version of its “Little Hatch” Act. In essence, the law prohibits classified employees from engaging in partisan politics “other than to vote as the … employee pleases and to express freely political opinions.” The law is further expanded upon in the Ohio Administrative Code Section 123:1-46-02 which further defines the level of “political activity” barred for classified employees.
However, the regulation states that “[c]irculation of nonpartisan petitions or petitions stating views on legislation” is specifically exempted from the definition of “political activity.” Therefore, circulation of SB 5 petitions is legally permitted for classified employees under Ohio law.
B. Can the State threaten classified employees with termination if they sign or circulate an SB 5 petition outside of work?
Not legally. As stated above, Ohio law permits classified employees to be involved in circulating petitions stating views on legislation, such as a referendum petition. If you’ve been threatened by someone with retribution for signing or circulating an SB 5 petition, you need to document it the time and event. If you’re in a collective bargaining unit, inform the appropriate person in your union, such a steward.
If any action is taken against you, you can seek relieve from the SERB if your in an union, or the State Personnel Board Review if you an exempt employee or your collective bargaining agreement allows for complaints to be filed with SPBR. A campaign to terminate, deny promotions, or otherwise take any adverse action against a state employee for engaging in protected political activities guaranteed under the First Amendment is illegal and can also become a basis for a private suit for wrongful termination in violation of public policy.
C. Can the State enact or enforce a policy that prohibits State employees from engaging in petition training or petition signing at the workplace during employees’ breaks?
Potentially, yes. Although you don’t shed all your First Amendment rights to political participation by taking a classified job, First Amendment rights are not absolute in any context. The above section that discussed the right to circulate petitions about legislation just meant in general,like outside the workplace. If you re-read Ohio’s “Little Hatch Act” and the regulation cited above for the sections that delineate the kind of political activity that is prohibited by classified employees deals with mostly out of office political activity.
Just because the regulation permits classified employees to engage in petition signing and gathering, it does not necessary follow that the State must permit such activities in the workplace during normal business hours. So, it’s not enough just to look at what State law permits. You also need to examine your agency’s specific policies regarding employee political activity. If your agency has a policy that forbids any political activity on state time or property, then it’s not worth opening yourself to disciplinary action by violating the stated policy of your agency.
Also, keep in mind not just the legal, but the public optics of this. Whether or not you were on your break or not, the proponents of SB 5 would jump on any story about state employees doing SB 5 referendum work at the workplace. It’s not a good story, even if the work was done during a lunch break or otherwise off the clock. It’s just not worth the P.R. hassle.
However, some of you may disagree and may be wondering if these policies really constitutional. There’s a strong argument that they are not. But the way to address them is to take the State to court and ask it to declare them unconstitutional. It’s not to ignore the policies, violate them, and then try to fight the State as it takes action against you that could include discharge.
The policy as written is not content-neutral as it is clearly aimed at regulating political speech in particular, so it’s not a simple content-neutral time, manner, or place restriction. As such, and because it deals with a fundamental constitutional right, the State’s policy would be subject to a strict scrutiny standard by any reviewing court.
Generally speaking, to survive strict scrutiny, a court must find three things:
- The policy supports a compelling government interest. I believe a Court would find that the State has a compelling interest in preventing the appearance of government sponsorship of its employees political speech by permitting it on State property or with the use of State resources. The State has an interest to maintain the appearance of neutrality to its taxpayers.
- The policy must be narrowly tailored to accomplish that goal or interest. The policy must be drafted in a way that isn’t overbroad or under inclusive to achieve the legitimate government interest. Again, I think a policy that forbids political activity on State property or using State resources is probably narrowly tailored.
- The policy must be the least restrictive means of achieving the interest. I think this is where the policy might fail because it doesn’t include a provision of off-the-clock, but on site political expression that doesn’t inherently give the appearance of government sponsorship of that particular viewpoint. Barring privately allowing employees use of a lunchroom or an auditorium while they’re on a break that is not open to the public during the event would not seem to be the least restrictive means.
Given that the Administration already issued its own pro-SB 5 letter to all employees, I think a court would look at any effort by the Administration to suppress anti-SB 5 political activity suspiciously as the policy, as applied in this instance, arguably amounts to viewpoint discrimination. I think there a chance a court would find that the policy doesn’t survive strict scrutiny, which in just about every law school was taught as “strict in theory, fatal in fact.”
But is it worth the hassle? No. Just meet off-site for lunch. Train there. Hold petition signings at a nearby restaurant for lunch or after hours. Kind of hard for the Administration to do anything about that. Just a thought. 🙂
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