Use Of Public Facilities for Campaign Elections - 2021 General Election Edition
RCW 42.17A.555’s prohibition on the use of government facilities to support or oppose a ballot measure or candidate is a perennial favorite topic for inquiries here at MRSC. This blog will focus on questions we’ve recently received on this subject.
My colleague Linda Gallagher wrote a comprehensive summary of this issue in her June 1, 2021 blog Election Season Tips & Reminders. She summarized the prohibitions in RCW 42.17A.555 and explained how those are balanced against RCW 41.06.250(2), which makes it clear that public employees and elected officials retain their normal civil rights and can be involved in political campaigns in their private capacity. Pop over and read that post, then come back and we’ll look at some additional questions.
Use of Official Titles and Political Messages
Can I use my official title when speaking in public?
Elected officials and employees may use their title but should clarify that they are speaking on their own behalf and not on behalf of the agency.
Can I have a campaign or political messages on private cars parked on public property or worn as buttons or clothing while in public facilities?
Yes, in both cases. But for buttons and clothing, the agency could adopt a policy that requires plain and unadorned clothing at work.
Public Disclosure Commission (PDC) Interpretation 04-02 allows bumper stickers on private vehicles even if they are parked on agency property.
The same interpretation says employees can wear campaign buttons or similar items while on the job if the agency’s policy generally permits employees to wear political buttons. Additionally, PDC Interpretation No. 92-01 says wearing such buttons is a form of personal expression, and the PDC does not consider it a "use of facilities." The interpretation notes that an agency's enabling statute or a local ordinance, rule, policy, etc. could prohibit the wearing of any/all political pins by all agency staff.
However, Interpretation 92-01’s language allowing the agency to have a policy prohibiting political pins was written before the Reed v. Gilbert case was decided. In Reed, the U.S. Supreme Court said that for content-based regulations of speech to work (in that case, the town’s sign code) the town had to show that their regulations furthered a compelling governmental interest and was narrowly tailored to that end.
So, your agency’s policies can probably restrict clothing or buttons for “customer-facing” employees because it has a legitimate interest in maintaining an efficient workplace; in this case, not having the public impute an individual’s specific message to your agency as a whole. Your agency also has a legitimate interest in deciding whether allowing an employee to wear something with a political message impairs harmony among coworkers. The balance being that while employee “A” has a right to their opinion, they don’t necessarily have the right to impose that opinion on employee “B.”
One caution — if you are going to impose such restrictions make sure that your restrictions are viewpoint and content-neutral. Instead of saying that “no political or campaign language” is allowed but allowing other language, consider a policy that says, “The only writing allowed on clothing is the name of the agency and/or the agency’s logo; otherwise, clothing worn at work must not have any language, images, or pictures.”
Use of Public Facilities
What counts as a public facility?
RCW 42.17A.555 says that public facilities:
(I)nclude, but are not limited to, use of 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.
MRSC interprets the phrase broadly and believes the term includes agency-owned social media pages. However, we believe it does not include privately-leased space on agency property unless the lease specifically addresses this use.
Must the agency prevent “campaigning” during public comment periods of meetings?
Yes. PDC staff has informally told us (and we agree) that the use of official meeting time in council/board chambers for campaign purposes would violate RCW 42.17A.555. One exception would be if the legislative body is considering a resolution supporting or opposing a ballot measure. In that case, to the extent the agency allows public comment on the action, it will not violate the statute if the agency allows public comment on whether the agency should (or should not) adopt the resolution.
Signs and Signature Gatherers
Can political signs be posted in the right-of-way?
A perennial question. Political signs may not be prohibited in the parking strip portion of the right-of-way (that area between the curb and the sidewalk), but probably can be excluded in the median, traffic circles, and other portions of the right-of-way if a similar prohibition applies to all signs. Political signs within the parking strip portion of the right-of-way generally require the consent of the abutting property owner. See Jill Dvorkin’s August 19, 2021 blog Regulating Signs During Election Season for an in-depth look at this question.
Does my agency have to allow signature gathering on agency property?
It depends on the traditional use of the property. For example, your agency probably does not have to allow it in your building lobby or other internal common area. But if it’s an outdoor public plaza you might have to allow signature gathering, especially if the plaza was intentionally opened for use by the public as a place for expressive activity or if it has been traditionally used in this manner.
For a more comprehensive review of this subject look at our Use of Public Facilities in Election Campaigns topic page. And as always, if you have specific questions send them to us on our Ask MRSC page.
MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.