Understanding Legal Boundaries: Public Employees' Political Activity In Ohio

In Ohio, public employees are encouraged to exercise their constitutional right to vote and express their opinions on political matters. However, as government employees, their ability to engage in political activity is restricted by law. These laws aim to prevent employees from creating the perception that their institution endorses a particular candidate or cause. While public employees retain their First Amendment right to free speech, this right is not absolute in the public workplace. School districts, for instance, can hold teachers and staff to certain standards when they speak on behalf of the district. This overview will explore the laws governing political activity by public employees in Ohio, including university staff, and the boundaries they must observe to avoid institutional endorsement.

University employees and political activity

University employees in Ohio are encouraged to exercise their constitutional right to vote and express their personal opinions on political candidates, issues, and programs. However, as employees of a public institution, they must do so without suggesting university endorsement. This means that university employees should not participate in political activities or solicit others' participation during work hours or using university resources.

University employees are also restricted from using their affiliation with the university, including its name, logo, or other identifying marks, to imply institutional support for their personal or unofficial political activities. This includes activities such as taking part in public political meetings, writing letters, or signing statements connected to political activity. Employees should also refrain from participating in polls intended to disclose the opinion of university staff on partisan political matters.

Additionally, university employees in Ohio are prohibited from serving in appointed or elected positions that conflict with their university duties or the university's interests. If a university employee intends to run for public office, they must notify the appropriate university officials and may need to take a leave of absence if their campaign interferes with their work responsibilities.

Classified employees, as defined by the Ohio Administrative Code, face additional restrictions on their political activities. These include prohibitions on candidacy in partisan elections, certain campaigning activities, and participation in political action committees. However, classified employees are permitted to engage in certain political activities while off-duty, such as registering to vote, expressing opinions, attending political rallies, and displaying political materials in their homes or on their property.

Unclassified employees, on the other hand, are generally not prohibited from engaging in political activity. With prior notice to the university, they may run for part-time elective offices, such as school board or city council positions.

Public sector employee rights

Public sector employees in Ohio have many of the same rights as private sector employees, but there are some differences. Notably, many public employees have the right to request a hearing if terminated or suspended, and to appeal their termination or suspension to a civil service commission.

Due Process Rights

Certain Ohio public sector employees have a protected property interest in the continuation of their employment and are entitled to due process rights. Due process rights ensure fairness in the procedures used to alter the employment relationship. This includes the right to a hearing before a neutral person before their governmental employer can deprive them of employment. Due process rights came from a landmark Supreme Court case called Cleveland Board of Education v. Loudermill. "Loudermill Rights" require the employer to provide the employee with notice of the charges against them, an opportunity to review the evidence, and a chance to respond to the charges before a neutral decision-maker.

Appeals to Civil Service Commissions and the State Personnel Board of Review

Unless covered by a union collective bargaining agreement, "classified" state and county public employees can appeal adverse job actions to a civil service commission. Adverse job actions include reductions in pay or position, involuntary disability separations, and certain whistleblower matters. Non-union, classified employees who are not covered by their employer's civil service commission can appeal to Ohio's State Personnel Board of Review (SPBR).

Rights of Public School Employees

Many public school employees in Ohio have additional protections under the ORC § 3319.16, which offers safeguards for administrators and teachers, shielding them from arbitrary dismissals. These employees can only be terminated for "good and just cause," and only after due process is afforded. Before termination, the law requires the board of education to provide the teacher with a written notice, stating the reasons for considering termination. The teacher can then request a hearing before the board or a referee to contest the allegations.

Freedom of Speech and Political Activity

Public employees do not give up all their First Amendment rights when working for a government employer. They are protected from retaliation for engaging in free speech, including whistleblowing. The First Amendment might also protect employees for their personal speech made on their own time, such as speaking out on social media about issues of public concern or expressing political views. However, this does not protect all speech, and it can be tricky to determine if speech is protected. Courts have developed a three-part test to determine when the First Amendment protects a government employee's speech:

• Public employee speech is protected only if it is on a matter of public concern, such as exposing public corruption, discrimination, government abuse of power, or misuse of public funds.
• Employees are protected only when speaking as private citizens rather than as part of their job duties.
• If the above two conditions are met, courts then balance the employee's right to free speech against the government's rights as an employer, considering factors such as the nature of the speech and its potential impact on the working environment.

Additionally, most public employees have the First Amendment right not to be fired for their personal political beliefs or party affiliation. In many cases, it is illegal to fire a government employee for supporting or refusing to support a particular candidate, political issue, or political party. This is known as a "patronage" dismissal.

However, public employees' freedom of speech is not absolute. School district employee speech is protected under the First Amendment if the employee is speaking as a private citizen on a matter of public concern, and their interest in commenting outweighs the school district's interest in promoting efficient operations and services. Courts will evaluate whether the speech interfered with the employee's performance, created disharmony among co-workers, undercut supervisor authority, or destroyed the required relationship of loyalty and trust.

University Employees

University staff and faculty members are encouraged to exercise their constitutional right to vote and express their personal opinions on political candidates and issues. However, as employees of a public institution, there are restrictions on exercising these rights in a manner that suggests university endorsement of a cause or candidate. University employees should not participate in political activities during business hours or when using university assets. They are also prohibited from serving in an appointed or elected position if it interferes with their duties or creates a conflict of interest with the university. University assets, such as the university name, logo, facilities, and resources, should not be used in a way that suggests institutional endorsement. Employees should also make clear that their affiliation with the university does not imply approval or disapproval of their expressed views.

First Amendment rights

Public employees in Ohio retain their First Amendment rights when working for a government employer. The First Amendment protects employees from retaliation for engaging in free speech, which extends to the workplace in certain circumstances. This includes speaking out on matters of public concern, outside of the scope of the employee's usual duties, provided this does not disrupt the workplace.

For example, a public employee can exercise their right to free speech by speaking out on matters of public concern, such as exposing public corruption, discrimination, government abuse of power, or misuse of public funds. This is known as "whistleblowing". The First Amendment also protects employees from being fired or retaliated against for their own personal speech, made on their personal time, such as expressing political views on social media.

However, the First Amendment does not protect all speech by public employees under all circumstances. Courts have developed a three-part test to determine when the First Amendment protects a government employee's speech:

• Public employee speech is protected only if it is on a matter of public concern.
• Employees are protected only when speaking as private citizens rather than as part of their job duties.
• If the employee passes the first two parts of the test, courts then balance whether the employee's right to free speech outweighs the government's rights as an employer.

In addition, most public employees have a First Amendment right not to be fired for their personal political beliefs or party affiliation. It is illegal to fire a government employee for supporting, or refusing to support, a particular candidate, political issue, or political party. This is known as protection from a "patronage" dismissal.

Public employees in Ohio also have the right to choose whether to financially support their union based on their freedom of speech and freedom of association, as protected by the First Amendment. This was recognized by the Supreme Court of the United States in the Janus v. AFSCME decision. As a result, public-sector employees in Ohio can decide for themselves whether or not to financially support government unions without losing their jobs.

Due process rights

The cornerstone of these rights is the right of a public employee to a hearing before a neutral person before their governmental employer can deprive them of any significant property interest, such as employment. This is known as a Loudermill hearing, stemming from a landmark Supreme Court case, Cleveland Board of Education v. Loudermill.

Loudermill Rights require the employer to provide the employee with notice of the charges against them, an opportunity to request to review the evidence against them, and an opportunity to respond to the charges before a neutral decision-maker.

Public school employees in Ohio have additional protections under the ORC § 3319.16. This law shields certain administrators and teachers from arbitrary dismissals, requiring that they can only be terminated for "good and just cause", and only after due process is afforded. Before termination, the law requires the board of education to provide the teacher with a written notice, stating the reasons for considering termination. The teacher can then request a hearing before the board or a referee, where they can contest the allegations.

Public employees in Ohio do not forfeit their First Amendment rights when taking government jobs. This includes freedom of speech, which is protected under the First Amendment if the employee is speaking as a private citizen on a matter of public concern, and if the employee's interest in commenting on matters of public concern outweighs the interests of the school district in promoting the efficiency of its operations or services.

Matters of public concern include exposing public corruption, discrimination, government abuse of power, or misuse of public funds. Workplace grievances or generalized complaints about poor employee performance are typically not considered matters of public concern.

Whistleblower rights

Whistleblowers are individuals who shine a light on illegal or dangerous actions or conditions in their organizations. They play a crucial role in safeguarding employees, consumers, and the wider public. In recognition of their importance, Ohio law offers protections to whistleblowers from retaliation.

Whistleblower Protections in Ohio

Ohio's whistleblower protection law applies to public employees, whether classified or unclassified, who report:

• Criminal offenses that are likely to cause physical harm or public health hazards.
• Improper solicitations for contributions.

In most cases, whistleblowers must first allow their employer to address the issue before reporting it to external authorities. Employers have 24 hours or until the end of the next business day to notify the employee of the corrective actions they will take or that no violation has occurred. If the employer fails to address the issue, the whistleblower can then report it to law enforcement or regulatory agencies.

Retaliation Protections

Ohio law prohibits employers from retaliating against employees for engaging in "protected activity," which includes:

• Filing a discrimination charge with the Ohio Civil Rights Commission or the U.S. Equal Opportunity Commission.
• Filing a lawsuit for employment discrimination.
• Informing an employer of the intention to file a discrimination charge or lawsuit.
• Opposing unsafe working conditions or violations of federal safety laws.
• Refusing to obey orders that are reasonably believed to be discriminatory.
• Serving as a witness in a lawsuit or investigation into employment discrimination.
• Requesting reasonable accommodations for disabilities or religious practices.
• Requesting leave under the Family and Medical Leave Act.

Retaliatory actions by employers can include termination, suspension, withholding raises or benefits, reassignment, demotion, or withholding promotions. Whistleblowers who experience retaliation can file a civil lawsuit against their employer within 180 days of the retaliatory action.

Additional Whistleblower Protections

Federal laws also offer whistleblower protections in certain circumstances. For example, the Whistleblower Protection Act prohibits retaliation against federal government employees and contractors who disclose legal or regulatory violations. Additionally, the Sarbanes-Oxley Act protects employees who cooperate with SEC investigations or report violations of specific federal laws and regulations.

Seeking Legal Advice

Due to the complex and time-sensitive nature of whistleblower retaliation claims, it is recommended to consult with an experienced employment lawyer to understand your rights and legal options.

Frequently asked questions