Political Solicitation of Local Government Employees

Anonymous

Wed, 07/15/2009 - 04:10

City Related

See update below: 
An issue that arises in many local governments involves campaign
contributions from local government employees, which often appear to be
coerced or required, that is, they appear to result from a misuse of
office by elected officials. Often, it appears that the giving occurs
because employees are concerned about keeping their jobs. This
concern includes concern about retaliation as well as concern about
what will happen if the candidate loses. 
 
This issue arises because such contributions are not occasional, but
instead very common. In smaller jurisdictions, employees
often provide a majority of an elected executive's campaign funds.

Of course, many employees make campaign contributions because they
think the boss is the best person for the job. But it is impossible for
anyone to know this, and it is rare that employees will publicly
complain about being coerced. 
 
The most common way to deal with this issue is to prohibit officials
running for office from soliciting local government employees for
campaign contributions. The reason such contributions are not outright
prohibited is that they are protected by the courts on free speech
grounds. For example, a decision on this issue was made by a federal
court with respect to Philadelphia city employees in
Philadelphia Fire Fighters’ Union
Local 22, AFL-CIO v. City of
Philadelphia, 286 F.
Supp. 2d 476 (E.D. Pa. 2003). The court found
that the ban on voluntary political contributions imposed against
firefighters
violates the
First Amendment rights of the firefighters, as well as Local 22, the
union that
represents them. The court rejected the city’s justification for the
ban, that contributors could improperly
influence hiring, promotions, and transfers, as well as compromise the
integrity
of Fire Code inspections. 
 
Last month, the Seattle city council prohibited the solicitation of
campaign contributions from city employees, according to <a href="http://publicola.net/?p=9254" target="”_blank”">an article
on publicola.net</a>. The law does not, however, go into effect until
July 22. According to the article, on the day the law was passed, more
than 25 percent of the mayor's contributions, about $93,000, had come
from city employees.
As of yesterday, the total had increased to nearly $127,000, (Update: according to <a href="http://seattletimes.nwsource.com/html/politicsnorthwest/2009476748_ethi… article</a> in the July 15 Seattle Times, this figure was accidentally doubled; the figure is actually about $60,000). $60,000 is
two-and-a-half times the city employee contributions to all other city
races combined, and about 12% of the mayor's
fundraising. In large cities, city employee giving is
usually a smaller percentage than in smaller cities and towns. 
 
Note that the new law won't change things very much since it only prohibits solicitations. Most incumbent mayors do not have to
actively
solicit employees. Employees know what is expected of them without a
direct
word being spoken or written (I've been told that on several occasions
by local government employees). According to the Seattle ethics and
elections commission's executive director, "enforcement will mostly be
based on complaints, not proactive measures. 'I don’t think we can
assume that people aren’t giving voluntarily,
without being solicited,'" he is quoted as saying. And he's right --
coercion cannot be assumed, no matter how common it is or what form it
takes. 
 
But because only solicitation can be prohibited, and law rather than
ethics is all that matters to many officials, some local governments
care so little about the appearance of coercion that they provide for
payroll
deductions for campaign contributions. 
 
The same problem occurs with contractors, only it is both more serious
(contracts are supposed to be competitively bid, so that where
contractors give large contributions, there is an implication that the
procurement process can be fixed) and it involves larger sums of money
(few employees give large amounts). Because the interest in preventing
what can be seen effectively as bribes is strong, it is often seen as
overriding contractors' freedom of speech rights. Therefore, many
states, and some localities, prohibit contributions from contractors,
which includes
their owners, executives, and board members, and sometimes their
families and even regular employees (since they too can be seen as
being coerced). 
 
Here is the <a href="http://www.sandiego.gov/ethics/faqs/solicitation.shtml" target="”_blank”">explanation
of San Diego's prohibition of solicitation of city employees</a>:<ul>

Isn't political activity a
protected constitutional right? How can the City tell me who I can't
solicit? 
The prohibition on solicitation is narrowly written to address a
specific governmental concern. The solicitation prohibition is designed
to prevent City employees from being pressured to give money to a
candidate or measure they do not support. When such pressure comes from
a supervisor or someone who works alongside a City employee, there is a
potential threat of retaliation which may be perceived by the person
being solicited. While political activity is indeed a protected right,
the City has determined that in this instance that right is outweighed
by a City employee's right to be free from undue pressure to
financially support a political campaign.</ul>

One good thing about solicitation rules is that they apply not only to
officials' campaigns but to anything, including others' campaigns,
charitable contributions, contributions to unions, even loans and
payments (legally, officials can't bring their girl scout children to
work at cookie-selling time). 
 
Allowing city employees to make campaign contributions can make
elections look unfair. An unusual example of this occurred this year in
Albuquerque, which has a public campaign financing program, where
mayoral candidates are required to get 5,000 contributions of $5 in
order to qualify for large public financing grants. According to <a href="http://newmexicoindependent.com/23594/incumbency-advantage-fuels-early-…; target="”_blank”">an
article in the New Mexico </a><a href="http://newmexicoindependent.com/23594/incumbency-advantage-fuels-early-…; target="”_blank”">Independent</a>,
the incumbent mayor obtained over 50% of these contributions from city
employees, and he did it in two weeks. In addition, 42% of the volunteers
who collected these contributions were city employees. The city's
employee relations manager collected the most contributions of any
volunteer, 250. 
 
A local professor, Tim Krebs, put this into context for the Independent. He said that "these
numbers aren’t
surprising, that they reflect the 'incumbency advantage' of a strong
executive mayor. 'I’d say it’s pretty typical for ... a strong
executive mayor to use the executive branch as his political
organization. That is his organization — he runs it. As long as what
he’s doing is
within the law, which means city employees weren’t collecting on city
time, then I’m not really surprised by these numbers.' 
 
"At the same time, Krebs said, large numbers of city employees working
for the mayor’s re-election does open him up to criticism. 'It is a
risk,' Krebs explained. 'It leaves him open to criticism
from his challengers -- that he’s leaning on people who rely on or owe
him. But he can come back with the argument that it’s a reflection of
his support rather than his incumbency.'" 
 
One way to deal with employee fundraising is to prohibit both direct
and indirect solicitation of city employees. Here is the City Ethics <a href="http://www.cityethics.org/mc/full#TOC40" target="”_blank”">Model Code provision</a>
on political solicitation:<ul>

An official, employee, or municipal
candidate may not knowingly
request, or authorize anyone else to request, that any subordinate or
potential future subordinate
participate in an election campaign or make a political contribution.
Nor may he or she engage in any political activity while on duty for
the city, with the use of city funds, supplies, vehicles, or
facilities, or during any period of time during which he or she is
normally expected to perform services for the city, for which
compensation is paid. </ul>

Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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