ANNAPOLIS – County executives can use public funds and their employees to campaign for or against ballot issues without violating state laws barring use of taxpayer money and civil servants’ time to endorse or oppose political issues, a state appeals court has ruled.
In its 3-0 holding, the Court of Special Appeals drew a distinction between county executives spending taxpayer money to lobby on matters of policy, which are permitted, and campaigning on behalf of particular candidates or partisan issues, which is not.
“A government may speak to advance its existing policies and programs, to advocate for policy changes, and to advocate against policy changes,” Judge Deborah S. Eyler wrote in the court’s reported opinion filed Friday. “[T]he check on government speech is that the individuals elected to office whose views the government is espousing may be voted out of office.”
The intermediate appellate court rendered its decision in overturning a judge’s ruling that Montgomery County Executive Isiah “Ike” Leggett violated state law in campaigning, successfully, for adoption of a 2012 referendum to change the county’s collective bargaining ordinance concerning police.
The Fraternal Order of Police’s local lodge had challenged Leggett’s use of public funds and employees to garner support for the ballot issue that would enable the county executive to remove budget allocations and organizational changes from collective bargaining.
FOP petitioned the ordinance to a referendum, Question B on the 2012 county ballot, which voters ultimately approved.
Montgomery County spokesman Ohene Gyapong stated in an email that “we are pleased the court recognized the actions the county took, in favor of a reasonable public policy, were within the bounds of the law.”
FOP’s attorney, William J. Chen Jr., said he and his client have not decided if they will appeal the decision. Chen, of Chen & McCabe LLP in Rockville, declined further comment.
Leggett’s campaign involved placing signs on county buses, mailers, posters, flyers, and yard signs and urging employees, including county spokesman Patrick Lacefield, to talk up an ordinance the executive said would enable him to operate the police department efficiently.
But Montgomery County Circuit Judge Ronald B. Rubin ruled in March 2014 that Leggett’s actions violated laws against using public funds and employees for electioneering
Rubin, however, said Leggett enjoyed qualified immunity from having to pay damages. The judge also did not undo the vote.
On appeal, the Court of Special Appeals sided with Leggett’s argument that his campaign for Question B was on an issue of concern to the county and not to his Democratic Party.
County executives have “the inherent power to use properly appropriated funds for a governmental purpose, and … advocacy on a nonpartisan ballot measure pertaining to the management of the county’s police force plainly was a governmental purpose,” Eyler wrote.
“While the campaign was political, in that it concerned a question to be put to the voters, it was not partisan in any traditional sense of that word,” Eyler added. “The campaign here was undertaken by the county to advance a change in the law on a nonpartisan issue that would assist the county and its chief of police in best managing the police department. The county’s speech in the campaign was political, but was permissible government speech.”
The court also upheld Leggett’s use of county employees to advance his position on the ordinance, saying the work assignment was no different than what they normally do in support of the executive’s policy initiative.
“[N]onpartisan advocacy in favor of government programs and policies that are germane to the function of the government entity is a governmental role and is part of the job responsibilities of many government employees,” Eyler wrote. “Activities by government employees that advance governmental policies by advocating for or against state and local laws are not prohibited ‘political activity,’ nor are they forced ‘political service.’”
Election-law professor Larry S. Gibson said the Court of Special Appeals’ decision was in keeping with the “strong Maryland tradition” of local governments campaigning on ballot issues, including proposed constitutional amendments and bonds.
“Maryland has for many years been very permissive on funding for ballot questions,” said Gibson, who teaches at the University of Maryland Francis King Carey School of Law.
Eyler was joined in the opinion by Judge Andrea M. Leahy and J. Frederick Sharer, a retired jurist sitting by special assignment.
The case is Montgomery County v. Fraternal Order of Police, No. 175 September Term 2014.