THE POLITICAL BLUESRULES OF POLITICAL ACTIVITY IN THE PUBLIC WORKPLACE

October 11, 2017

Jonathan J. Downes17 South High Street, Suite 900

Columbus, Ohio 43215

614-565-2075 jjd@zrlaw.com

Jonathan J. Downes

• AV Preeminent rated by Martindale Hubbell.

• Fellow in the College of Labor and Employment Lawyers.

• Ohio State Bar Association - Certified Specialist in Labor and Employment Law.

• More than thirty years of experience and expertise in representing public and private employers in labor and employment law and human resource management.

• Negotiated over 700 labor contracts and advocated in over 400 impasse hearings and arbitrations.

• Represents employers in organizing campaigns and administrative hearings.

• Defends employers in state trial and appellate courts, courts, the Ohio Supreme Court, federal district courts and the United States Court of Appeals for the Sixth Circuit.

• Recognized many times over as a subject-matter expert, Jonathan was selected as one of the Top 50 Central Ohio Lawyers of 2015 and every year since 2004 has been named an Ohio “Super Lawyer”.

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• Zashin & Rich Co., L.P.A. (“Z&R”) has over 30 attorneys, 20 of whomspecialize in labor and employment law with offices in Columbus andCleveland, representing both private and public employers.

• Z&R represents its clients in labor negotiations, human resourcesmatters, and civil service. Attorneys of Z&R have collectivelynegotiated over 1000 contracts and have represented private andpublic employers in arbitrations, impasse proceedings and litigation.

• Z&R represents private employers, universities and colleges, stateagencies, special districts, cities, counties, townships, housingauthorities, hospitals and others. Attorneys handle matters at theNational Labor Relations Board, the State Employment RelationsBoard, State Personnel Board of Review, and local Civil ServiceCommissions.

About Zashin and Rich

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columbus | cleveland

Employment and Labor Law Group

• Zashin & Rich’s Employment Group has extensive experience representing public sector entities, large and small businesses, and non-profit organizations. Zashin & Rich’s Employment Group’s expertise extends into many areas including:

• Litigation and EPLI Defense

• Discrimination and Retaliation

• General Employment Counseling

• Labor Law

• Collective Bargaining

• FLSA, Wage and Hour Issues

• Worker’s Compensation

• Restrictive Covenants

• Employee Handbooks

• Unemployment Compensation

• Civil Service Law

• Public Records/Sunshine Laws

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Discrimination and Retaliation

Laws Representation

o Title VII

o ADA

o ADEA

o FMLA

o PDA

o FLSA

o §1983

AGENDA

Political Activity and Coverage defined

Workplace and Off Duty Conduct

Freedom of Speech

Social Media and Political Speech

Union Activities

Discipline

Local Options

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Classified Civil Service Employees

ORC 124.57 Prohibition against solicitation

No officer or employee in the classified service ….

shall directly or indirectly, orally or by letter, solicit or receive, or be in any manner concerned in soliciting or receiving, any assessment, subscription, or contribution for any political party or for any candidate for public office

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Classified Civil Service Employees

ORC 124.57 Solicitation of employees

No officer or employee in the classified service

shall solicit directly or indirectly, orally or by letter, or be in any manner concerned in soliciting, any such assessment, contribution, or payment from any officer or employee in

the classified service…..

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Classified Civil Service Employees

ORC 124.57 Prohibition against partisan activity

No officer or employee in the classified service…

shall be an officer in any political organization or take part in politics other than to vote as the officer or employee pleases and to express freely political opinions.

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Penalties

Penalties OAC 123:1-46-02(D)

An employee in the classified service who engages in any of the (prohibited) activities… is subject to removal from his or her position in the classified service. The appointing authority may initiate such removal action in accordance with the procedures in section 124.34 of the Revised Code.

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Classified Civil Service Employees

Permissible Activities See OAC 123:1-46-02(B)

Register and vote

Express opinions

Voluntarily financially contribute

Circulate non-partisan petitions

Attend political rallies

Be a candidate in nonpartisan elections

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Classified Civil Service Employees

Permissible activities

Sign nominating petitions

Display political materials on person, property, vehicles

Serve as a precinct election official (see ORC 3501.22)

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Classified Civil Service Employees

Prohibited activities OAC 123:1-46-02(C)

Candidate for partisan office

File petitions for candidacy for partisan office

Circulate petitions for partisan office

Hold office in partisan political organization

Campaign for candidates for political office: speeches, distribute political material

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Classified Civil Service Employees

Prohibited activities

Solicit cash or in-kind contributions

Sell political party tickets

Partisan activities at polls

Serve as a witness or challenger

Participate in partisan political caucuses or partisan political action committees

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Unclassified Employees

Ohio Administrative Code 123:1-46-02 (E)

Employees in the unclassified service are not

prohibited from engaging in political activity

unless specifically precluded by federal or

state constitutional or statutory provisions.

Federal Hatch Act may apply if employees

are connected to federal funding.

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Enforcement and Discretion

RC 124.57 may not be constitutionally enforced to prohibit classified employees from engaging in nonpartisan political activity; however, employees may be removed who engage in prohibited activity; such authority is discretionary, not mandatory.

OAG 83-095

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Partisan Politics

The word politics interpreted in the narrow sense of partisan regulates non-protected political activity and is a lawful enactment by the legislature.

Gray v. Toledo (N.D. Ohio) 323 F. Supp. 1281

1971.

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Civil Service Law Prohibition

Employee terminated who participated in a political committee which supported partisan activity.

Jackson v. Coffey 52 Ohio St.2d 43 (1977)

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Partisan Election

Employee ran for public office in a partisan election as an independent. It is irrelevant whether the political activity took place on or off the premises.

Wright v. Summit County Sheriff's Department No. 9750 (9th Dist. Ct. of Appeals, Summit,

(10-22-80)

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Unemployment Compensation

Unclassified deputy county auditor subject to reappointment is not subject to the proscription against political activity under RC 124.57 and thus discharge of a deputy auditor seeking elective political office is deemed without just cause for unemployment compensation.

In re Stevenson UCRC C2007-219-0004

(2-2-2008)

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Collective Bargaining Agreements

The terms of a collective bargaining agreement may provide that a classified employee may engage in partisan politics and, pursuant to RC 4117.10(A), such terms will prevail over the provisions of RC 124.57.

OAG 91-065

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Union Officials

Deputy, union officer, which union endorses candidates who signs prelease announcement of endorsement violated 124.57 as the activity is attempt to influence votes of others and not expression of one’s opinion.

OPBA v. Wayne County Sheriff’s Office

27 Oh App3d 175 (1986)

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Penalties for Participation

Classified employee (deputy sheriff) engaging in partisan politics by signing and filing with the County Board of Elections a "Declaration of Candidacy" and by obtaining and soliciting signatures on the "Petition for Candidate" was found guilty of prohibited political activity, fined $500.00 and placed on probation.

City of Sidney v. O'Leary, Case No. 00-CRB-00350 (Shelby County, Ohio 2000).

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Solicitation of Employees

§ 3517.092 Solicitation of contributions

(C)(1) and (2) No elected officer (or candidate) of a political subdivision of the state, no campaign committee of such an officer, no employee of such an officer’s office and no other person or entity shall knowingly solicit a contribution to an elected officer (or candidate) of a political subdivision of the state or to such an officer’s campaign committee from any of the following:

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Solicitation of Employees

§ 3517.092 Prohibition of Solicitation of political contributions of…

(a) An employee of that political subdivision whose appointing authority is that elected officer;

(b) An employee of that political subdivision whose appointing authority is authorized or required by law to be appointed by that elected officer;

(c) An employee of that political subdivision who functions in or is employed in or by the same public agency, department, division, or office as that elected officer.

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Applicable Rules and Policies

Establish Rules and Policies:

Standard of Conduct

Equipment and Computers

Political Activities

On and Off Duty Conduct

Morale and Image (law enforcement)

Reputation of Department

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Employer Equipment Use Policy

Improper use of employer equipment: including telephones, e-mail, the internal mail system, computers, fax machines, electronic equipment may only be used to the benefit of the employer, and cannot be used for "personal use."

Policy provides that employees may not use the employer's equipment for personal use, and Employer has right to examine any equipment and discipline against improper use.

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Employee Conduct on Social Media

Can Employers discipline employees foroff-duty social media comments, posts, etc. on non-employers social media sites?

What standards apply for employee off-duty conduct?

How “freely” may employees “speak”?

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Protected Conduct on Social Media

First Amendment - Speech by employees outside the workplace

Social media activity is “speech” that can be protected by the First Amendment.

Highly fact specific- Considers content and the audience for the post i.e., whether it was public, or only shared with limited groups of “friends”.

Sweeping bans on discussing employer business on social media might be viewed as an unlawful prior restraint.

Risk of Section 1983 liability merely for implementing the policy.

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First Amendment Considerations

• Social media speech examined the same as other forms of speech.

• Speech is a matter of “public concern” when it enables the public to make informed decisions about government operations or raises or identifies issues of interest to the public.

• Public Concern may outweigh governmental interests.• Examples: Unsafe conditions, policy decisions,

unlawful conduct, failure to follow law, funding decisions.

• Whether employee is speaking as a spokesperson for an organization e.g. union.

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First Amendment Considerations

• Speech is not protected when the efficiencies in public service outweighs the public concern, e.g. morale, efficiency of operations.

• If speech was an internal matter, employee’s job (Garcetti).

• Whether internal reporting system exists such as discrimination policies.

• Examples: Claims of harassment; negative, derogatory or inflammatory comments about coworker.

• Confidential information may not be disclosed.• If speech was a matter of personal concern.• If speech suggests or promotes illegal

conduct/activity.

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1st Amendment Balancing Test

Balancing Test for Freedom of Speech:

• Did speech involve a matter of public concern?

• Did speaking interest outweigh government interest in efficient public service?

• Speech played substantial part in employment decision.

• Then, if first 3, would government have made same decision absent protected speech.

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1st Amendment Balancing Test

Balancing Test for Freedom of Speech:

• Maintaining discipline and good working relations is a legitimate government interest.

• Actual disruption in the workplace not required.

• Issues of public concern not raised.

• Not a violation of freedom of speech.

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Bland v. Roberts U.S. Appeals Ct.

Facts:

• Sheriff’s Office employees (unprotected).

• Not reappointed following reelection of Sheriff.

• Employees “liked” Facebook page of opponent candidate.

• One employee wrote on campaign page and employee photo added to page of candidate.

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Bland v. Roberts

Holdings:

• Show of support was the “Internet equivalent” of a political yard sign.

• Conduct constitutes “speech.”

• The “like” is a substantive statement warranting 1st Amendment considerations.

• Governmental interest does not outweigh 1st

Amendment protections.

• Officers’ 1st Amendment Rights violated.

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OCSEA - Ohio Dept. Rehab and Correction

Arbitration under collective bargaining agreement

Facts:

• Corrections Officer posting on Facebook following death of Bin Laden “ok, we got Bin Laden . . . Let’s go get Kasich next . . . who’s with me?”

• Seventeen people “liked” the post, 4 employees of DRC.

• Posting open to public.

• Corrections Officer terminated.

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OCSEA - Ohio Dept. Rehab and Correction

Holding:

• Arbitrator noted conduct only “empty words”.

• Arbitrator noted threat not potentially dangerous to Governor.

• Off-duty conduct subject to discipline.

• Sufficient cause for discharge not present.

• 14 month suspension, reinstatement.

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Discipline Process

Civil Service

Collective Bargaining Agreement

Predisciplinary Procedures

Appeals and Arbitrations

Lawsuits

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THANK YOU!

Questions - please contact:

Jonathan J. Downes

Zashin & Rich

17 South High Street, Suite 900

Columbus, Ohio 43215

(614) 565-2075

(614) 224-4411

jjd@zrlaw.com

Copyright 201739