Restrictions on Political
Campaigning by Public Employees,
ORS 260.432
Oregon Secretary of State
Elections Division
January 25, 2008
Introduction
• Norma Buckno, Compliance
Specialist, Investigations & Election Law
Advice, Pre/Post Election Process, Legislative
Process, Publications
• Carla Corbin, Compliance
Specialist, Initiative Process, Investigations &
Election Law Advice, Legislative Process
Highlights of ORS 260.432 restrictions
The election law that affects all public employees is
ORS 260.432, which provides restrictions on political
campaigning by public employees when they are “on
the job during working hours.”
This one statute covers so many situations and
circumstances that there is a detailed advisory
memo published, updated every two years:
Restrictions on Political Campaigning by Public
Employees. 2008 will be out soon. Also, we provide
a quick reference flyer. Both posted on our website.
Highlights of ORS 260.432 restrictions
Briefly, the basics of ORS 260.432:
•
First, ORS 260.432(2) states that a public
employee may not, while on the job during
working hours, promote or oppose political
committees, election petitions, candidates or
ballot measures.
•
Additionally, no person (including elected officials)
may require a public employee to (at any time)
participate in political activity. This means that a
person that is acting in a supervisory capacity
may not “ask” a public employee to participate in
political activity.
Highlights of ORS 260.432 restrictions
• One small legislative change made to ORS
260.432 by 2007 Legislature. Another exception
to who is not subject to the restrictions – now in
addition to elected official, also “a person
appointed as a director to the board of a pilot
service district.” Sunsets 2012.
Highlights of ORS 260.432 restrictions
• A work assignment made by a supervisor to a
subordinate public employee, as an expectation
of employment, is considered to be a
requirement within the meaning of ORS
260.432. This is because the employee would
likely feel obligated, even if the supervisor
“asked.”
• In a personal capacity, a person who is a public
employee’s supervisor may ask for off duty
“volunteer help” from public employees, but the
supervisor must take great care that the
employee does not feel compelled to participate.
Highlights of ORS 260.432 restrictions
• A public employee, on their own, off duty time,
may participate in any legal political activities.
• A public employee includes any public official,
paid or unpaid, who is not elected. This includes
appointed boards and commissions.
• For example, a person who is in an appointed
position on a commission providing
governmental functions is under ORS 260.432
during the time they are acting in that official
capacity.
Highlights of ORS 260.432 restrictions
• ORS 260.432(4)(a) states that for purposes
of this election law, an elected official is not
considered a public employee. So, an
elected official may advocate for or against
election issues and candidates at any time,
but may not direct public employees to help
in those activities.
Highlights of ORS 260.432 restrictions
• What is encompassed by “on the job during working
hours,” and what it means for a position that is not
considered hourly, such as a salaried, executive or
management position. This is not as easily defined as
for an hourly position, but is based more on the
activities involved rather than a specific time period or
place.
• The rule of thumb is that, if the work performed falls
generally within the job duties of the public employee,
then it is assumed that the work is performed in an
official capacity, regardless of the time of day, location
or even if the employee is using personal equipment.
Highlights of ORS 260.432 restrictions
• An example is a School Superintendent preparing an
article about a ballot measure for the school district
newsletter at home on his or her computer. The
Superintendent is writing this article in official capacity
and it will be identified as such in the newsletter. In this
case, if the article advocates a political position on the
ballot measure, even though he or she used personal
equipment to write it, there would be a violation of
election law.
Highlights of ORS 260.432 restrictions
• Salaried public employees must be careful during any
time they are acting in their official capacity - both
during and outside of normal working hours.
• For this reason, we recommend personal note-keeping
by salaried employees for any political activities – to
assist in documenting whether or not they were on duty,
should a complaint be filed. For example, an expense
reimbursement for a function indicates the employee
was “on duty.”
• We also recommend, during public appearances, the
employee should specifically announce to the audience
in what capacity they are speaking.
Required Notice about ORS 260.432
• Each public employer must have a notice about ORS
260.432 posted in a conspicuous place likely to be seen
by its employees. A copy of this ORS 260.432 notice is
at the end of the detailed Restrictions memo. This
notice is often posted on a general use or union bulletin
board.
Impartial Political Information
What is meant by impartial?
• Public employees may provide impartial, factual
information related to an initiative, referendum or
recall petition, measure or candidate as part of the
employee’s job on work time. This applies to any
presentations or speeches.
• In this office’s Restrictions memo, there are detailed
guidelines to assist in ensuring information is
impartial – meaning equitable, fair, unbiased and
dispassionate.
Impartial Political Information
• Impartial material must contain some balance and
must not, when read in its entirety, give an overall
persuasive impression that serves to lead the reader
to support or oppose the measure (even if it does not
explicitly urge a yes or no vote).
• The word choices, formatting, balance and type of
information included, tone and presentation all are
factors that are taken into consideration.
Impartial Political Information
• We also provide some examples of inadvisable
language and a checklist of factors to consider to
ensure impartiality that we recommend an agency to
use to review their own draft information about a ballot
measure.
• The Secretary of State, Elections Division offers a
service to state and local government agencies, to
review draft information about ballot measures and to
offer advice on how to make the document as neutral
as possible. We provide our suggestions in writing and
usually run it by our AG legal counsel.
Election Law Complaints
• Any elector may file a written complaint with our office
alleging a violation of this election law.
• The possible civil penalty for a violation of
ORS 260.432 is a maximum of $250.00. By
administrative rule, we have a penalty matrix that allows
lower penalties for mitigating circumstances and based
on whether it’s a first time incident.
• Complaint cases involving civil penalties are public
record immediately, whereas complaint cases involving
criminal penalties are exempt from public disclosure
until the case is closed.
Revisions to 2006 ORS 260.432 memo
• Discussion of information that will
be added to memo – the 2008
version of the Restrictions on
Political Campaigning by Public
Employees, ORS 260.432
Examples from ORS 260.432 cases
• Discussion of some examples from
recent ORS 260.432 complaint cases
– see Election Law Complaint Cases
table in packets.
This Concludes This Presentation.
Thank You For Your Time.