Regulation of employee
political activity
Leon J. Page
Deputy County Counsel
(714) 834-6238
Overview -- Four lines of
cases

TYPE ONE: Public employer enacts a
policy regulating employee political
activity that is then challenged by
employees or labor organization on
First Amendment grounds.
Overview -- Four lines of
cases

TYPE TWO: Public employer takes
an adverse employment action against
employee and the employee sues,
alleging unlawful retaliation in violation
of employee’s First Amendment
speech rights.
Overview -- Four lines of
cases

TYPE THREE: Public employee uses
County or public resources to
expressly advocate for the election or
defeat of a candidate or ballot
measure.
Overview -- Four lines of
cases

TYPE FOUR: Local government
employee holding a position funded by
federal loans or grants becomes a
candidate in a partisan election.
Employer policy regulating
political activity – Type One
Example: Local city council adopts a policy
prohibiting city employees from making
political contributions, circulating a signature
petition, wearing campaign buttons, serving
as a delegate, and actively participating in
fundraising for a partisan candidate.
Employee or union sues and challenges
policy on First Amendment grounds.
Employer policy regulating
political activity – Type One
The Courts will balance the employee’s
interest in commenting upon matters
of public concern against (1) the need
to have fair and effective government,
and (2) the need to ensure that
employees are free from pressure to
perform “political chores.”
Employer policy regulating
political activity – Type One
Generally, the Courts have been fairly
deferential to public employer efforts
to adopt policies regulating or limiting
public employee political activity, even
political activity outside of work and
away from the workplace.
Employer policy regulating
political activity – Type One
See also recent California Supreme
Court decision, San Leandro Teachers
Association v. Governing Bd. Of San
Leandro Unified School District, 46
Cal.4th 822 (2009) (School district
could lawfully prohibit teachers’ union
from distributing campaign literature
regarding school board candidates in
school mailboxes.)
Employee speech retaliation
cases – Type Two
Example: Employee of a local city
government openly opposes the
election of a city mayoral candidate by
writing a letter to the editor of a local
newspaper. Mayoral candidate wins.
Employee is discharged and then sues,
claiming retaliation.
Employee speech retaliation
cases – Type Two
The government may not force its employees
to relinquish their First Amendment rights to
free speech and free association.
However, in the interest of an efficient
workplace, the government may regulate
free speech within certain guidelines.
“Four plus one” analysis is required.
Employee speech retaliation
cases – Type Two
Four elements to prove a First Amendment retaliation
claim:
1)
Employee suffered an adverse employment
action;
2)
Employee’s speech was about a matter of public
concern;
3)
The interest of the employee in speaking
must outweigh the employer’s interest in
an efficient workplace (see below.)
4)
The speech must have motivated the adverse
employment decision.
Employee speech retaliation
cases – Type Two
However, even if the plaintiff can
demonstrate all four elements, a
public employer may still escape
liability if it can show “that it would
have taken the same action even in
the absence of the protected
conduct.” Mt. Healthy City Sch. Dist.
Bd. of Educ. V. Doyle, 429 U.S. 274,
287 (1977).
Factor No. 3: When does the employee’s
interest in speaking ever outweigh the
employer’s interest in an efficient workplace?
1)
2)
3)
4)
5)
Whether the employee’s actions involve public
concerns;
Whether close working relationship are essential
to fulfilling the employee’s public responsibilities
(i.e. did the speech affect working relationships
necessary to the Dept.’s proper functioning?”);
The time, place, and manner of the employee’s
activity;
Whether the activity can be considered hostile,
abusive, or insubordinate; and
Whether the activity impairs discipline by
superiors or harmony among co-workers.
Employee speech retaliation
cases – Type Two
Example: Police officer discharged for
having campaign sign (supporting
another candidate) in the trunk of
the officer’s patrol vehicle.
No real impact on efficiency of the police
department. Case ordered to trial.
Employee speech retaliation
cases – Type Two
Employees who had participated in fund
raisers, worn their candidates
paraphernalia, gone door to door
canvassing, put yard signs in their
yards and bumper stickers on their
personal vehicles had minimal impact
on the efficiency of police
department. Brady v. Fort Bend
County, 145 F.3d 69 (5th Cir. 1998).
Employee speech retaliation
cases – Type Two
But compare Connealy v. Walsh, 412 F.
Supp. 146 (1976). Plaintiff social
worker displayed “McGovern”
political bumper sticker on car
parked in employer’s parking lot, in
violation of employer’s policy. Court
held that employer’s interests
outweighed employee’s First
Amendment rights.
Employee speech retaliation
cases – Type Two
And compare Smith v. United States,
502 F.2d 512 (5th Cir. 1974). Clinical
psychologist employed by Veteran’s
Administration wore a “peace pin” on
his lapel, in violation of policy.
Discharge upheld; wearing of pin not
protected by First Amendment.
Employee speech retaliation
cases – Type Two
•
•
•
So what about the city employee who
writes the letter opposing the
ultimately successfully mayoral
candidate and is then discharged?
It depends. Let’s review the factors –
slides 11-13.
What position does the employee
hold?
Employee speech retaliation
cases – Type Two


“Policymaker” exception: High level officials
can fire certain types of governmental employees
for purely political reasons without offending the
Constitution.
“The ultimate inquiry is not whether the label
policymaker' or 'confidential' fits a particular
position; rather, the question is whether the hiring
authority can demonstrate that party affiliation is
an appropriate requirement for the effective
performance of the public office involved.” Branti v.
Finkel 445 U.S. 507 (1980).
Misuse of Public Funds –
Type Three
The starting point for any analysis
concerning the misuse of public funds
begins with the principle that public
funds must be expended for an
authorized public purpose. An
expenditure is made for a public
purpose when its purpose is to benefit
the public interest rather than private
individuals or private purposes.
Misuse of Public Funds –
Type Three
In People v. Battin, a county supervisor used his
county compensated staff to work on his political
campaign for Lieutenant Governor.
In Stanson v. Mott, a private citizen sued the
Director of the California Department of Parks and
Recreation, challenging the director’s expenditure
of Department funds to support passage of a bond
act appearing on a statewide ballot. The Supreme
Court unanimously found that the director had
acted unlawfully, concluding that “in the absence of
clear and explicit legislative authorization, a public
agency may not expend public funds to promote a
partisan position in an election campaign.”
Misuse of Public Funds –
Type Three

The Supreme Court wrote in Stanson: “A
fundamental precept of this nation’s
democratic electoral process is that the
government may not ‘take sides’ in election
contests or bestow an unfair advantage on
one of several competing factions. A
principal danger feared by our country’s
founders lay in the possibility that the
holders of governmental authority would
use official power improperly to perpetuate
themselves, or their allies, in office....”
Hatch Act – Type Four
Generally, the Hatch Act regulates individual
employees, not federal, state or local
agencies. Under the federal Hatch Act, 5.
U.S.C. §§ 1501 – 1508, certain state and
local employees are prohibited from being
candidates in a partisan election, i.e., an
election in which any candidate represents,
for example, the Republican or Democrat
Party.
Hatch Act – Type Four

Notably, the Hatch Act’s prohibition against
candidacy “extends not merely to the formal
announcement of candidacy but also to the
preliminaries leading to such announcement
and to canvassing or soliciting support or
doing or permitting to be done any act in
furtherance of candidacy.” See June 17,
2009, U.S. Office of Special Counsel advice
letter, available at
http://www.osc.gov/documents/hatchact/fe
deral/Adams%20AO%20redacted.pdf.)
Hatch Act – Type Four
Under 5 U.S.C. § 1504, when a federal agency
that awards federal funds has reason to
believe that a state or local officer or
employee holding a position financed by
federal funding has violated a provision of
the Hatch Act (by, for example, becoming a
candidate in a partisan election), that
federal agency is required to report the
matter to the U.S. Office of the Special
Counsel, the agency that is responsible for
Hatch Act enforcement.
Hatch Act – Type Four
•
•
If the Special Counsel determines that the
federal agency’s report warrants an
investigation, the Special Counsel is
required to investigate the matter and
present its findings and charges to the Merit
Systems Protection Board (“MPSB”).
The MSPB is required to conduct an
evidentiary hearing on the alleged violation.
Hatch Act – Type Four
After hearing the evidence, the MSPB is
required to (1) determine whether the
employee violated the Hatch Act; (2)
determine whether the violation
warrants the removal of the officer or
employee from his or her state or local
office or employment; and (3) notify
the employee and the employing state
or local agency of its decision.
Hatch Act – Type Four
Under 5 U.S.C. § 1506, if the state or local employee
has not been removed from his or her office or
employment within 30 days of the MSPB’s directive,
or if the employee has been removed, but is then
reappointed to another position at the state or local
agency within 18 months after his removal, the
MSPB shall certify an order requiring that the
appropriate federal agency withhold from its loans
or grants to the state or local agency an amount
equal to 2 years’ pay at the rate the officer or
employee was receiving at the time of the violation.
Conclusions…
•
•
•
•
Courts are generally deferential to public
employer regulations of employee political
activity, even away from the workplace.
First Amendment retaliation claims
extremely fact-intensive;
Public resources may not be used to
promote candidates or ballot measures;
Federal Hatch Act regulates certain local
employees holding positions funded by
federal loans or grants.
Conclusions…
•
•
•
The balancing of the public employer’s
interest in efficiency against the employee’s
First Amendment speech right is extremely
difficult.
In First Amendment retaliation cases, courts
have reached seemingly contradictory
results.
Please consult with County Counsel before
taking adverse action against employee
because of his or her political activity.