April 17, 2017 by Oskar Rey
Administrative and Elected Officials
There is a lot going on in politics these days at all levels of government. Wherever you fall on the political spectrum, it is important for government employees to know the rules of engagement. While everyone has First Amendment rights, there are certain restrictions on speech and lobbying that apply to employees of local public agencies. This blog post will address personal speech and lobbying activity by government officials and employees. Lobbying by government agencies and paid lobbyists is not covered.
Speech in a Personal Capacity
Government employees do not give up their First Amendment rights when they enter public service. This is made clear in RCW 41.06.250(2), which provides that state and local government employees have “the right to vote and to express their opinions on all political subjects and candidates and to hold any political party office or participate in the management of a partisan, political campaign.” They also have the right to participate in non-partisan campaigns, initiatives, referenda, and issues of a similar character.
The flip side to this is RCW 42.17A.555, which prohibits the use of public facilities in connection with a political campaign. The definition of “facility” is very broad, and includes “stationery, postage, machines, and equipment, use of employees of the office or agency during working hours, vehicles, office space, publications of the office or agency, and clientele lists of persons served by the office or agency.”
While RCW 42.17A.555 applies only to political campaigns, the principle behind it applies more broadly to personal political activity in the workplace. This is reflected in specific statutes, such as RCW 41.06.250(1), which forbids political solicitations on public property. It is also reflected in local government policies and regulations that prohibit the use of government property for personal purposes. You can write that letter or make that protest sign—just do it on your own time with your own materials and equipment!
In addition to supplies, equipment, and facilities, consider your status as a government employee. When engaging in political activity on your own time, it is a good practice to either not mention your status as a government employee, or, if you do, clarify that you are communicating in your personal capacity.
Personal Lobbying Activities
In Washington, lobbying activity by state and local government officials and employees is regulated by RCW 42.17A.635. This statute provides that, with certain exceptions, “no public funds may be used directly or indirectly for lobbying.” Lobbying is defined under RCW 42.17A.005 as attempting to influence the passage or defeat of any legislation by the state legislature or the adoption or rejection of any rule or other legislative enactment of any state agency.
Lobbying by state and local government agencies is regulated by the Public Disclosure Commission (PDC). A summary of the regulations applicable to agencies can be found here. The PDC also regulates lobbyists, who are required to register and report financial information related to lobbying efforts. Unpaid citizens who contact state government on issues of concern, and who do not spend funds to benefit public officials, are not required to register and report.
The restrictions in RCW 42.17A.635 apply to lobbying at the state level only. Lobbying at the federal level or local government level may trigger other laws and regulations, but it does not implicate RCW 42.17A.635.
Case Study: How not to Lobby the Legislature
The lobbying restrictions of RCW 42.17A.635 were applied in Knudsen v. Washington State Executive Ethics Board. In that case, a college instructor used a community college computer to email other faculty members and encourage them to contact their legislators in support of proposed legislation that would provide tenure-like protections to part-time college teachers. Her employer’s technology use policy allowed for “occasional and limited” personal use, but prohibited any use of technology for political purposes.
The court affirmed that the use of her employer’s computer violated RCW 42.17A.635. The court’s ruling confirmed that lobbying encompasses more than direct contact with legislators or their representatives, and extends to encouraging others to contact their legislators. The court also affirmed that the instructor’s actions violated RCW 42.52.160, part of the Ethics in Public Service Act, because she stood to personally benefit from the legislation.
Do you have any questions or comments about political speech and lobbying? If so, please leave a comment and I will be happy to respond.