Employee Political Behavior in a Government Workplace – What is Protected

Municipalities, Counties, and Special Districts that are subdivisions of state government must provide First Amendment protections to their employees. Understanding First Amendment protections when it comes to political behavior can be difficult. Under the First Amendment, both free speech and freedom of belief and association are protected. To determine what is protected in any given situation, specific facts are critical.

Here are two illustrative examples:

  1. Harry, a recreation center employee, is backing Josephine for city council. Josephine is known to have a liberal agenda. The mayor has a more conservative plan and wants to eliminate everyone in the city who supports Josephine.
  2. Harriet, also working in the recreation center, is backing Joe for mayor. She has a bumper sticker on her car and is now actively campaigning during work hours, insisting that her co-workers donate to Joe’s campaign.

Harry is acting based upon his belief and associating with Josephine and thus is protected under the First Amendment. He cannot be fired due to his beliefs and associations. You may be asking how state and federal political appointees can lose their jobs when a newly elected official comes into office. Typically, in state or federal government, there will be what are often called ‘civil service’ employees and political appointees. Political appointees are in a category where their employment may be terminated at the end of the elected officials’ terms because they are there to serve the political aims of the elected official. At the more local level, it is common for most or all employees to be viewed the same as civil service employees, even if there is no such designation, and not have employment limited to the term of the incumbent. Those who do serve at the pleasure of elected officials, like a city manager working for a city council, often have a written contract for employment that allows for an end to employment should the city council want to end it.

Harriet’s support for Joe is protected based upon her belief and association, but she has gone beyond that to engage in speech in the workplace. Now we must look at a balancing test. First, is this a matter of public concern?  While voting is a matter of public concern, that can be overcome if there is a disruption in the workplace. Harriet’s insistence that her co-workers donate to Joe’s campaign is likely disruptive to the workplace because she is campaigning in the workplace during work hours. This disruption is likely to overcome any free speech protection. Further, depending on the facts and whether the government entity is receiving federal funds, Harriet may be violating state or federal law by soliciting funds for a political campaign at work.

In the coming months, there may be more political conversations in government workplaces. If you need help managing it, staff at Employers Council can help.