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Government Ethics vs. The Right to Sign Petitions
Monday, July 7th, 2008
Robert Wechsler
[This blog entry has been substantially changed based on a response from the Phoenix City Manager, who provided information about the reasons for the City Attorney's position and the relationship of the City Attorney with the mayor.]
Phoenix's City Attorney determined, according to an article in the Arizona Republic this week, that city employees are not permitted to sign a petition seeking recall of the mayor. On its face, this looks like a political act favoring the mayor, which is how I first presented it. But it was, according to the City Manager, an honest interpretation of the Charter.
Click here to read the rest of this blog entry.
Here is the relevant part of the Charter provision on city employee political activity:
"No person holding a position with the City, except elected officials, shall take any part in political management, affairs or campaigns in any election for City of Phoenix elective office further than to vote and privately express opinions."
The issue is how to interpret the words "vote" on the one hand, and "political affairs or campaigns" on the other. Clearly, city employees could vote on whether to recall an elected official, but can they sign a petition seeking to place this issue on the ballot? According to the City Manager, the Charter provision has been interpreted to mean that city employees are not permitted to sign candidate petitions (which he says constitutes campaign activity). The City Attorney's position, according to the City Manager, is that a recall petition is like a candidate petition.
Certainly, such a petition cannot be circulated in City Hall. Nor should the petition be circulated by city employees, even outside of working hours. Phoenix prevents city employees from giving campaign contributions, but that is more clearly participating in a campaign.
A petition seems more like voting. Like a vote, signing a petition is as minimal a sign of support as can be given, it is one of hundreds or thousands, and it requires almost no interaction with others. Like the right to vote, the right to sign a petition would seem to overwhelm any other consideration, even the possibility of coercion by superiors or the appearance of impropriety, where there is no specific conflict of interest involving a particular individual.
According to the article, the City Attorney says that the rule was based on the Federal Hatch Act, which I discuss in another blog entry. The Hatch Act was intended to prevent government employees from using their positions for partisan purposes (by running for office or interfering with the results of an election or nomination) or from being coerced by their superiors into supporting politicians.
This is a tough question, but I feel that the City Attorney's position, even if, as the City Manager says, this has been city policy, is wrong. Government ethics has limits. There are many things it simply cannot touch, because they are essential to our democracy or to individuals' rights in our democracy. Signing petitions is, I believe, one of these. And preventing city employees from doing this, where it is not absolutely clear how to interpret the Charter provision (and even then, because even a more clear provision could be overreaching or unconstitutional), makes it look as if something is wrong, as if rights are inappropriately being taken from the employees. Election law specialists in a listserve I belong to (where I learned about the City Attorney's decision) were taken aback by the decision.
There is definitely an appearance of impropriety even when the City Attorney does not report to the mayor. Even if he is not, it appears that the City Attorney is using his position, and his power to interpret the Charter, to coerce city employees into supporting the mayor, the principal activity the Hatch Act was intended to prevent.
For this reason, in addition to others, I believe that the City Attorney should determine that the freedom to express oneself by signing a petition (candidate or recall) takes precedence over the laudable reasons behind the Charter provision limiting city employees' political activity.
Robert Wechsler
Director of Research-Retired, City Ethics
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Phoenix's City Attorney determined, according to an article in the Arizona Republic this week, that city employees are not permitted to sign a petition seeking recall of the mayor. On its face, this looks like a political act favoring the mayor, which is how I first presented it. But it was, according to the City Manager, an honest interpretation of the Charter.
Click here to read the rest of this blog entry.
Here is the relevant part of the Charter provision on city employee political activity:
"No person holding a position with the City, except elected officials, shall take any part in political management, affairs or campaigns in any election for City of Phoenix elective office further than to vote and privately express opinions."
The issue is how to interpret the words "vote" on the one hand, and "political affairs or campaigns" on the other. Clearly, city employees could vote on whether to recall an elected official, but can they sign a petition seeking to place this issue on the ballot? According to the City Manager, the Charter provision has been interpreted to mean that city employees are not permitted to sign candidate petitions (which he says constitutes campaign activity). The City Attorney's position, according to the City Manager, is that a recall petition is like a candidate petition.
Certainly, such a petition cannot be circulated in City Hall. Nor should the petition be circulated by city employees, even outside of working hours. Phoenix prevents city employees from giving campaign contributions, but that is more clearly participating in a campaign.
A petition seems more like voting. Like a vote, signing a petition is as minimal a sign of support as can be given, it is one of hundreds or thousands, and it requires almost no interaction with others. Like the right to vote, the right to sign a petition would seem to overwhelm any other consideration, even the possibility of coercion by superiors or the appearance of impropriety, where there is no specific conflict of interest involving a particular individual.
According to the article, the City Attorney says that the rule was based on the Federal Hatch Act, which I discuss in another blog entry. The Hatch Act was intended to prevent government employees from using their positions for partisan purposes (by running for office or interfering with the results of an election or nomination) or from being coerced by their superiors into supporting politicians.
This is a tough question, but I feel that the City Attorney's position, even if, as the City Manager says, this has been city policy, is wrong. Government ethics has limits. There are many things it simply cannot touch, because they are essential to our democracy or to individuals' rights in our democracy. Signing petitions is, I believe, one of these. And preventing city employees from doing this, where it is not absolutely clear how to interpret the Charter provision (and even then, because even a more clear provision could be overreaching or unconstitutional), makes it look as if something is wrong, as if rights are inappropriately being taken from the employees. Election law specialists in a listserve I belong to (where I learned about the City Attorney's decision) were taken aback by the decision.
There is definitely an appearance of impropriety even when the City Attorney does not report to the mayor. Even if he is not, it appears that the City Attorney is using his position, and his power to interpret the Charter, to coerce city employees into supporting the mayor, the principal activity the Hatch Act was intended to prevent.
For this reason, in addition to others, I believe that the City Attorney should determine that the freedom to express oneself by signing a petition (candidate or recall) takes precedence over the laudable reasons behind the Charter provision limiting city employees' political activity.
Robert Wechsler
Director of Research-Retired, City Ethics
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