There was quite the brouhaha in Wisconsin this past summer. Sparked by the governor, the state legislature passed a bill that stripped unions of most of their collective bargaining rights.
The governor claimed the measure was needed to help fix the state’s budget, this after the unions had agreed to wage cuts and increased worker contributions to insurance and pension plans. The unions decried it was union busting and pledged to fight the bill in the courts, the streets and by recall election.
A divided state Supreme Court voted 4:3 to uphold the bill. Interestingly for our discussion, police officers and fire fighters were exempted. That’s the basis of the remaining public employees’ ongoing challenge of the bill in federal court -- that it discriminates among public employees.
The Response from Police
Police and firefighters joined the impacted employees in fighting the bill. They were possibly fueled by a concern that they were next, as evidenced by a bill introduced state Rep. Bob Ziegelbauer that would have eliminated their collective bargaining rights on pension and health care benefits.
One battle tactic employed by the unions was letters sent to business owners. Here’s an excerpt from one such letter that garnered a lot of attention:
Dear [Business Owner]:
The undersigned groups would like your company to publicly oppose Governor Walker’s efforts to virtually eliminate collective bargaining for public employees in Wisconsin. While we appreciate that you may need some time to consider this request, we ask for your response by March 17. In the event that you do not respond to this request by that date, we will assume that you stand with Governor Walker and against the teachers, nurses, police officers, fire fighters, and other dedicated public employees who serve our communities.
In the event that you cannot support this effort to save collective bargaining, please be advised that the undersigned will publicly and formally boycott the goods and services provided by your company. However, if you join us, we will do everything in our power to publicly celebrate your partnership in the fight to preserve the right of public employees to be heard at the bargaining table. Wisconsin’s public employee unions serve to protect and promote equality and fairness in the workplace. We hope you will stand with us and publicly share that ideal.
In the event you would like to discuss this matter further, please contact the executive Director of the Wisconsin Professional Police Association, Jim Palmer, at 608.273.3840.
Thank you in advance for your consideration. We look forward to hearing from you soon.
James L. Palmer, Executive Director, Wisconsin Professional Police Association
Mahlon Mitchell, President, Professional Fire Fighters
Jim Conway, President, International Association of Fire Fighters Local 311
John Matthews, Executive Director, Madison Teachers, Inc.
Keith Patt, Executive Director, Green Bay Education Association
Bob Richardson, President, Dane County Deputy Sheriffs Association
Dan Frei, President, Madison Professional Police Officers Association
Are There Restrictions on Officers’ Political Activism?
Local laws vary from state to state but the federal Hatch Act restricts the political activity of people employed by state, county or municipal executive agencies who work in connection with programs financed in whole or in part by federal funds.
I don’t know what federal funding the letter signers’ agencies receive or the signers’ connection to any such funding. Even if we assume they are covered by the Hatch Act, that doesn’t end our inquiry into whether the letters violated the Act’s restrictions because not all political activity is prohibited.
The U.S. Office of the Special Counsel (OSC) states on its official complaint form for reporting violations of the Act that covered state and local employees: “[A]re prohibited from using their official authority or influence for the purpose of interfering with or affecting the result of an election or nomination for office.”
My practice of law is limited to my years as a state and federal prosecutor. But I’d be willing to argue that a proposed bill is not an “election” for purposes of the Hatch Act. Reading the above quoted language in the context of the entire Act, it seems that “election” refers to candidates, not proposed bills such as the one limiting collective bargaining.
I find it interesting that a general counsel for the National Fraternal Order of Police interprets the Hatch Act as prohibiting an officer from: “[U]s[ing] any official authority or influence for political purposes, including using the officer’s official title or authority to coerce individuals to participate in political activity.”
Although there may still be room to argue the letters didn’t violate this prohibition, it’s a tougher argument to make. That said, the OSC appears to only apply this restriction to federal employees. Referring again to its official complaint form, it states, in relevant part, that only “Federal employees are generally prohibited from: Soliciting or discouraging the participation in political activity of any person who has business before their agency.”
Although we could argue about whether the business owners who received the letters have “business before the police department,” this, too, would be a tougher argument. But, the letter signers weren’t federal employees so the FOP’s position stumps me.
Still, there may be a bigger issue here for police unions and departments than a discussion of the Hatch Act.
Labor Activism or Protection Racket?
A friend and colleague, Patricia Robinson, first brought the unions’ letters to my attention. Pat was close to the action. She lives and works in Wisconsin as the executive dean of public safety at the Fox Valley Technical College in Appleton. She previously worked as a patrol officer, then took her street experience to the Academy as a full-time training officer and then was deputy director of the Wisconsin Training and Standards Bureau. She also presently serves on the IACP Ethics Committee.
Pat expressed concern that the letters “crossed the line” and would damage the reputation of the police unions and departments they represented long after the current fight was over, regardless of which side prevailed. But, having expressed that view to fellow members of the Madison Professional Police Officers Association, she was the getting a lot of flak.
I initially responded that I thought the letter could be a PR problem but I didn’t see how it was an ethical one. Pat replied that the letter could lead to speculation that police and fire fighters might not respond as promptly to calls from businesses that choose not to take a position on the bill or actively supported it.
Pat wasn’t alone in her thoughts. You can check out the negative public comments to online articles about the letters:
Yes, there were also people who supported the letters but the following public comment characterizations of the letters abounded:
Some negative comments even came from persons who identified themselves as union members but still thought the letters went too far.
Irrespective of where one personally stands on the wisdom of the letters, I don’t think law enforcement can afford to dismiss a sizable negative public perception. People’s perceptions are their reality. These people live in the communities you patrol. They sit on the juries in cases in which you testify.
Are Police Officers Different from Other Public Employees When it Comes to Such Activism?
I’ve previously written about the First Amendment rights of police officers when it comes to expressing themselves on the internet and how courts consider the special needs of departments in maintaining order, discipline and public trust when balancing police officers’ rights as compared to other public employees. Although the Hatch Act makes no such distinction, officers and departments may wish to.
Irrespective of our personal view of the merits of the letter sent to business owners in Wisconsin, law enforcement might want to consider the implications of such a tactic for the public trust of the business community -- normally public safety proponents and supporters -- and citizens. Given law enforcement’s tremendous power and need for public trust, perhaps officers and departments are in a different position than other public employees when it comes to political activism.
What do you think?