The State Ethics Commission has issued a Public Education Letter addressing the scope of a public employee’s ability to advocate for particular legislative changes. The letter addresses a situation involving a police chief and changes to the state’s gun laws. [See the Harrington Heep August newsletter for a summary of the new legislation, Ch. 135 of the Acts of 2024.] One town’s Police Chief opposed the bill and assigned an officer to write a statement in opposition. The statement was then posted on the department’s official Facebook page, linked to the Chief’s name and title and displayed on departmental letterhead. The Chief then had a second statement drafted and published in the same manner as the first, with both statements urging readers to advocate against the bill. The second statement noted that the views expressed were those of the police department but not necessarily those of the town, and further noted that a private organization of law enforcement officials, of which the Chief was a member, also opposed the bill. Two more statements were posted and published in opposition to the legislation in the fall, both again on departmental letterhead, on the official Facebook page, and claiming to represent the views of the department but not necessarily the Town.
In a letter issued September 25, 2024, the State Ethics Commission found that the Police Chief violated G.L. c. 268A, § 23(b)(2)(ii). Public officials can engage in political activity as private citizens, on their own time and using their own or other private resources. Where the Chief ran afoul was using his official title, the departmental letterhead, and the department’s social media account to publicize his personal beliefs and those of a private organization. The Commission noted that there are few exceptions to the prohibition on use of public resources for political activity.
Relevant here is the exemption for appointed policy making officials. Specifically, “an appointed public employee in a policy-making position may use public resources to engage in political activity relating to matters within the purview of their public agency that are not related to an election or ballot vote . . ..” The Police Chief is an appointed policy-making public official. Changes to gun laws can directly impact his department’s operations, and his professional experience and expertise can inform the public and legislative debate. Accordingly, he was permitted to use his title, the department’s social media page, the departmental letterhead, and department staff to provide factual information on the potential impact of the bill on his department’s operations. He could even state his opposition to the bill based on the objective facts and actual potential impact. However, his statements were found to have exceeded the scope of allowable actions.
The four published statements challenged the constitutionality of the proposed legislation, a matter not within his department’s purview. Further, he did not limit the statements to objective and practical effects, but rather reflected his personal views on the Second Amendment. He also used public resources to promote the political agenda of a private organization to encourage public opposition to the bill. The Commission recognized that linking his opinions to his official title could have an outsized effect on public opinion, an effect exacerbated by linking the view to the department itself. He used his official position to secure for himself and a private organization a public platform to advocate for a position when that platform was not available to others not similarly situated. As a result, the Commission concluded that there was reasonable cause to believe that he violated G.L. c. 268A, § 23(b)(2)(ii).
Rather than issue a fine, the Commission determined that the public interest was best served by issuance of a public education letter. Threading the needle between permitted and prohibited political activity is challenging. This letter clarifies where the line is drawn.
Comentarios