• May a county commissioner make a personal statement during a board meeting to endorse a candidate who is running for a seat on the commission?
• May she call a press conference on her front lawn to endorse that candidate?
• May the register of deeds fire a deputy register who is supporting her challenger in the election?
• May the mayor use her city-issued email account to circulate a statement about her goals for the upcoming term if she is re-elected?
• May a city or county sponsor a candidate forum?

Local government elections can raise sticky issues for local government officials and employees. They likely have strong feelings about the candidates and issues, but they may feel a bit constrained about actively campaigning, especially if they support candidates who are running against the current board members. Taxpayers may justifiably oppose any use of public resources to promote particular candidates or issues. State statutes for cities and counties address employee political activity, along with a broader statute that applies to city, counties, and schools, which prohibits the use of public funds to influence an election. This blog post addresses the scope of these statutes as interpreted by state court decisions, and also discusses relevant aspects of free speech law, as it applies to government employees and elected officials.

Employee Political Activity

Parallel statutes (G.S. 160A-169, cities; G.S. 153A-99 counties) restrict employees from campaigning on work time and also protect employees from being pressured to support particular issues or candidates. The statutes set out their purposes as follows:

The purpose of this section is to ensure that [city/county] employees are not subjected to political or partisan coercion while performing their job duties, to ensure that employees are not restricted from political activities while off duty, and to ensure that public funds are not used for political or partisan activities.  

It is not the purpose of this section to allow infringement upon the rights of employees to engage in free speech and free association. Every [city/county] employee has a civic responsibility to support good government by every available means and in every appropriate manner. Employees shall not be restricted from affiliating with civic organizations of a partisan or political nature, nor shall employees, while off duty, be restricted from attending political meetings, or advocating and supporting the principles or policies of civic or political organizations, or supporting partisan or nonpartisan candidates of their choice in accordance with the Constitution and laws of the State and the Constitution and laws of the United States of America.

The statutes contain three prohibitions:

• No employee while on duty or in the workplace may use his or her official authority or influence for the purpose of interfering with or affecting the result of an election or nomination for political office; or coerce, solicit, or compel contributions for political or partisan purposes by another employee.
• No employee may be required as a duty or condition of employment, promotion, or tenure of office to contribute funds for political or partisan purposes.
• No employee may use city/county funds, supplies, or equipment for partisan purposes, or for political purposes except where such political uses are otherwise permitted by law.

These statutory prohibitions relate to “political or partisan” activities. Another set of statutes (G.S. 160A-499.3 (cities), G.S. 153A-456 (counties), G.S. 115C-46.1 (schools) creates a broader prohibition regarding the use of public funds:

A [city/county/school] shall not use public funds to endorse or oppose a referendum, election or a particular candidate for elective office.

Taken together, these rules can be summarized as follows:

City and county employees can’t, in their official capacity, engage in campaign activities while on the job. They can’t be fired or otherwise treated negatively because of their off- duty political actions or preferences, and they can’t use public resources for political purposes. Employees are free to exercise their First Amendment right to engage in campaign activities, as long as they don’t do it at work and as long as no public resources are involved. It’s important to remember, however, that the scope of government employees’ First Amendment free speech protection varies depending upon the the role they play within the organization. For more on the legal standard that applies to government employees, see Chris McLaughlin’s blog post here.

Scope of Political Activity Statutes

Employees. The political activity statutes apply to “employees,” defined as “any person employed by a [city/county] or any department or program thereof that is supported in whole or in part, by [city/county] funds.” G.S. 153A-99(b) (counties), G.S. 160A-169(b)(cities). The statutes also restrict actions by the supervisors of these employees.

Sheriffs and Registers of Deeds. The North Carolina Supreme Court has held that elected sheriffs and registers of deeds, and their employees, are not county employees for purposes of G.S. 153A-99. Young v. Bailey, 368 N.C. 665 (2016) (sheriffs); Sims-Campbell v Welch, 239 N.C. App. 503 (2015) (registers of deeds). These cases involved claims of unlawful termination brought by employees who were fired because of their political activities. The courts held that because elected sheriffs and registers of deeds have the sole authority to hire and fire their employees, their employees are not employed by a county or any department or program thereof. So these employees were not protected by the statute from retribution as a result of their political activities and their terminations were upheld.

Even though the statutes don’t apply, doesn’t a government employee have a First Amendment right to campaign for the candidates of their choice? Not necessarily. The Supreme Court has recognized that for some types of government jobs, party affiliation is an appropriate requirement for the effective performance of the office. See Elrod v. Burns, 427 U.S. 347 (1976), Branti v. Finkel, 445 U.S. 507 (1980). North Carolina courts have held that this principle applies to deputy sheriffs and deputy registers of deeds. So a deputy sheriff or deputy register of deeds who chooses not to support, or even to run against, her boss does so at her own risk. And it bears repeating that G.S. 153A-456 – set out above – prohibits the sheriff and the register of deeds, and their employees from using public funds for campaigning, which means no campaigning during work hours and no use of publicly funded resources to promote candidates.

Governing Board Members. While governing board members are treated as employees for compensation, insurance, and tax purposes, they are in no other way considered to be employed by the unit or a department or program thereof. They are, in fact, the employer. A 1998 Attorney General opinion, however, concluded that the political activity statutes – G.S. 153A-99 and 160A-169 – apply to elected officials. The opinion noted that, at the time of its writing, there had been only one interpretation of the statute. The case was Carter v. Good, et al., 951 F. Supp. 1235 (W.D.N.C,1996), and it rejected the sheriff’s argument that the statute did not apply to the constitutionally-created, elected office of the sheriff. (That decision was reversed on other grounds in an unpublished opinion [145 F.3d 1323 (4^th Cir. 1998)]). The AG opinion relied on two cases involving G.S. 153A-98 – the county personnel privacy statute. Those cases held the statute applied to records of the appointed office of county manager and of applicants for appointment to a vacancy in the elected office of sheriff. Based on those cases, the  AG opinion concluded that the political activity statutes, which immediately follow the personnel privacy statutes in the chapter, apply to elected officials of counties and cities.

In light of subsequent cases holding that the political activity statutes do not apply to sheriffs or registers of deeds, the earlier AG opinion may no longer be persuasive. There is no case dealing with the question of whether the personnel privacy or the political activity statutes apply to members of city or county elected governing boards. I think there are some good reasons to conclude that they don’t.

The AG opinion points out that the terms “employee” and “officer” are often used interchangeably. It’s notable, however, that the personnel privacy cases relied upon in the opinion involved records of applicants for appointment to the office. (Elkin Tribune, Inc. v. Yadkin County Bd. Of Commissioners, 331 N.C. 735 (1992) (applications for appointment of county manager), Durham Herald Co. v. County of Durham, 334 N.C. 677 (1993) (applications for appointment to fill a vacancy in the office of the sheriff). In each of these cases, the appointment was to be made by the governing board, rather than by election. And while there is no case or AG opinion on the matter, the common interpretation of the personnel privacy statutes is that they do not apply to the city or county governing board members.

Finally, it does not necessarily make sense to assume that that the applicability of the personnel privacy statutes and the political activity statutes is the same. Each statute has its own definition of “employee.” Indeed, although the cases have held that the political activity statute (G.S. 153A-99) does not apply to employees of the sheriff or the register of deeds, it is generally assumed that those employees are entitled to the protection under the personnel privacy statute (G.S. 153A-98).

So let’s revisit the questions I posed at the beginning of this post:

• May a county commissioner use her personal time at a board meeting to endorse a candidate who is running for a seat on the commission? No. Even if the political activity statutes don’t apply to elected board members, it seems to me that using the council meeting to endorse a candidate might violate the broader statute, which prohibits the use of “public funds” to support or oppose a candidate. Although political use of meeting time does not literally involve use of funds, the public meeting involves the use of public resources – buildings, staff and in some cases, live streaming – that are publicly funded and for that reason campaigning at the meeting would be prohibited. And while elected officials have First Amendment free speech rights, a board meeting is a limited public forum, even for board members. A member does not have a free speech right to speak on matters that do not relate to the business of the body.
• May the commissioner call a press conference on her front lawn to endorse that candidate? Yes. When she speaks on her own property she is not using town resources so there is no statutory violation and in this forum her speech is not limited to official county business.
• May the register of deeds fire a deputy register who is supporting her challenger in the election? Yes, as noted above, the employee political activity statutes don’t apply to employees of the register or the sheriff, and they are free to require political loyalty from their deputies.
• May the mayor use her city-issued email account to send out a statement about her goals for the upcoming term if she is re-elected? No. Like the board meeting, the official email is a public resource and should not be used for political purposes. There may be some blurred lines between transacting the public business and running for re-election. Elected officials should exercise caution to avoid campaigning when using public resources.
• May a city or county sponsor a candidate forum? Yes, as long as the purpose of the forum is to provide information to voters in a neutral way. This means it must be open to all of the candidates and to the public at large. Although such a forum may well have an effect on the election, if the sponsor treats all the candidates equally and does not support or oppose any particular issue or candidate, it does not violate the statute.

Here are some related blog posts:

The First Amendment and Government Employees

Board Members at Candidate Forums: Does the Open Meetings Law Apply?

Getting Your Message Across: What Can Public Officials Say In Support of Pending Policies or Proposals?