As election season is upon us, local government officials and employees are regularly faced with making decisions about election-related questions and activities.  Officials and employees must remain vigilant about staying on the right side of the line that distinguishes acceptable activities from those prohibited by law.  Below are examples of activities and whether they comply with the law. 

Public Facilities and Resources 

In general, RCW 42.17A.555 is the state law which prohibits the use of public facilities to support or oppose candidates or ballot measures.  State law specifically states that “public facilities” includes, but is 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.

Exceptions to the above include:

  • an elected local government body is allowed “…to express a collective decision, or to actually vote upon a motion, proposal, resolution, order, or ordinance, or to support or oppose a ballot proposition to vote to express collective support or opposition to a ballot proposition.”
  • an elected official is allowed to issue a statement “…in support of or in opposition to any ballot proposition at an open press conference or in response to a specific inquiry.”
  • activities are allowed “…which are part of the normal and regular conduct of the office or agency.”

The Public Disclosure Commission (“PDC”) is the state agency which is responsible for investigating and determining violations of RCW 42.17A.555.  The following sections address specific issues and activities, and whether they comply with RCW 42.17A.555.

 

Candidate Forums and Debates

Can a government agency host a political event or debate at one of its buildings or meeting rooms?

WAC 390-05-271(2) explains that RCW 41.17A.555 does not prevent an agency from “(a) making its facilities available on a nondiscriminatory, equal access basis for political uses or (b) making an objective and fair presentation of facts relevant to a ballot proposition” if such action “is part of the normal and regular conduct of the office or agency.”  The PDC has also held that the use of agency meeting facilities is permitted when the facility is merely a “neutral forum” where the activity is taking place, and the public agency in charge of the facility is not actively endorsing or supporting the activity that is occurring.  For example, it is not uncommon for the League of Women Voters to use public facilities to sponsor a neutral, candidate forum prior to an election and use public facilities to do so.  These neutral forums are permitted so long as it is part of the normal and regular conduct of the office or agency.

 

Campaign Buttons and Pins

Can campaign buttons or pins be worn to support or oppose a particular issue or candidate?

PDC Interpretation No. 92-01 states that an elected official or public employee is not acting in violation of RCW 42.17A.555 when he or she wears a campaign pin or button during normal working hours.  The PDC further stated that “it should not be construed as an authorization to wear political pins, buttons, etc., which would override or supersede an agency’s statute, ordinance, rule, policy, etc., restricting such expressions.”

So, officials and/or employees may wear campaign buttons or pins if not otherwise restricted by local rule.

 

Public Service Announcements

Can agency officials appear in public service announcements during their campaign?

RCW 42.17A.575 prohibits state or local elected officials from speaking or appearing in public service announcements (“PSAs”) that are broadcast, shown, or distributed during the period between January 1 through the general election in a year the official is also running as a candidate for office.  However, this rule does not apply to PSAs that are part of regular duties of the office that only mention or visually display the office or seal or logo and do not mention or visually display the name of the official or officer in the announcement.

 

Personal Views and Campaigns

Can an agency employee or official support or oppose a ballot proposition or candidate?

Yes – so long as public facilities are not used.  Public employees and officials retain their normal civil rights and can be involved in political campaigns in their private capacity.  Regarding participation in political campaigns, the PDC has clarified that RCW 42.17A.555 does not restrict individuals’ right to express his or her personal views so long as that expression does not involve the use of public facilities.[1]  Thus, an elected official may, without the use of public facilities, serve on a campaign committee, make a personal contribution, or write a letter or an editorial for a newspaper to the same extent a private citizen could. However, if the elected official decides to partake in these activities, there should be no suggestion that statements or actions are on behalf of the government agency. It is recommended that clarification be provided that all statements and or actions are on behalf of the elected official in his or her personal capacity.

 

Can a council, board or commission vote to support or oppose a ballot proposition?

Yes, so long as certain steps are complied with.  RCW 42.17A.555(1) allows an elected government body to vote or express collective support or opposition to a ballot proposition so long as:

(a) any required notice of the meeting includes the title and number of the ballot proposition, and

(b) members of the legislative body, members of the board, council, or commission of the special purpose district, or members of the public are afforded an approximately equal opportunity for the expression of an opposing view…

 

Uniforms

Can an agency employee wear his or her uniform for campaign-related activities?

PDC Interpretation No. 04-02 provides that agency employees shall not use or wear their agency-issued, agency-purchased, agency-owned, or agency-replaced uniforms to assist a campaign or to support or oppose a ballot proposition.  This applies to any part of such uniform, including shirt, pants, shoes, hat, etc.  The prohibition also applies to equipment related uniforms such as firearms, badges, nametags, holsters, handcuffs, vests, patches, logos, insignias, emblems, and radios.

Prohibited uses include wearing an agency issued uniform or items at a campaign function or in political advertisements such as a TV commercial or website.  Public funds cannot be used to purchase uniforms or related equipment to assist in campaigns or to support ballot propositions.

However, uniforms which are not property of the agency (i.e., have not been rented or purchased with public funds) may be used in a campaign.  Additionally, an agency’s “former” uniforms may be used in campaigns provided that they have exceed their life expectancy and certain other conditions are first met.

 

Social Media and Webpages

Can an agency official repost photos, videos, or other materials from an agency website or social media page to their own campaign related website or social media page?

Probably not.  Recent PDC enforcement actions[2] and a related opinion issued by the Legislative Ethics Board[3] (the “Board”) signal that an agency’s photos, videos, and other “agency produced” materials are considered public facilities and thus cannot be posted or reposted to a candidate’s campaign related website or social media page.

 

If an agency has a video or photo or other material posted on its website or social media page, can a candidate post a link to that material on their campaign related website or social media page?

Likely yes, but posting such links comes with risk. The PDC guidance publication does not address linking to agency produced materials.  Interestingly, the Board has specifically stated that had a legislator posted links to the photos and videos produced by the legislative staff, rather than reposting the materials, the legislator would not have violated the statute[4].  The Board specifically noted that “…while legislators may link to legislatively produced material from a campaign website, they may not post or embed that material.  To comply with the ethics act, the post may be designed such that the viewer must leave the campaign site in order to view the material produced using legislative resources.”

However, caution is recommended in posting such links to agency produced materials since the PDC has not yet opined on the issue and a mere complaint to the PDC can have an impact on a campaign. The activity of linking to agency websites appears to be drawing complaint and criticism from members of the public.

 

Conclusion

These serve as helpful reminders on how to balance your personal rights with your job when it comes to election-related activities.  The PDC has published an online Guidelines for Local Government Agencies in Election Campaigns (Public Disclosure Law Re: Use of Public Facilities in Campaigns) available here, which is a good resource to review if you have questions about a certain campaign-related activity. Additionally, individuals may directly contact the PDC with any questions which are not squarely addressed by their published guidelines.  As it is not always clear what is allowed and what is not, so be sure to seek guidance from your legal counsel if you have any questions.

 

If you have questions regarding election activities and compliance with RCW 41.17A.555, please contact Peter Ruffatto or Allison Beard at Chmelik Sitkin & Davis, P.S. at PRuffatto@chmelik.com or 360-671-1796.

 

[1] PDC Interpretation No. 04-02; WAC 390-05-271(1).

[2] PDC case 48963.

[3] “Opinion, Findings of Fact, Conclusions of Law, and Final Order” OAH Docket No. 008318; LEB 2016 – No. 8 and No. 13 (Feb. 14, 2017); See also https://www.governing.com/archive/gov-social-media-states-ethics.html

[4] “the statute” is RCW 42.56.180 which mirrors and is substantially similar to the language of RCW 42.17A.555.