While the First Amendment provides significant protections against the government limiting its citizens’ freedom of speech, these protections become much more constrained and complicated when the government is the citizen’s employer. For public sector employees, their freedom of speech is heavily regulated when it comes to partisan political speech and activity. As the election season quickly approaches, let’s take a moment to freshen up on the rules in Ohio regarding political activity.

Political activity of Ohio public employees is regulated by R.C. § 124.57 and OAC 123:1-46-02. The Ohio Revised Code (“R.C.”) prohibits classified officers and employees from participating in partisan political activities, while the Ohio Administrative Code (“OAC”) provides guidelines for understanding political activity. There are several key terms frequently used by the statute—and this article—that must first be defined:

  • “Classified service”- all persons in active pay status serving in the competitive classified civil service of the state, unless explicitly exempted by the Revised Code.
  • “Unclassified service” – those who have been appointed by an appointing authority (Mayor, Trustee, etc.) usually to managerial or supervisory positions. These employees are not protected by the Ohio Civil Service laws.
  • “Political activity” – partisan activities, campaigns, and elections involving primaries, partisan ballots, or partisan candidates.

Now that the technical jargon has been defined, we can better understand and discuss what R.C. § 124.57 permits and prohibits. First, the statute prohibits classified officers and employees from soliciting or receiving any assessment, subscription, or contribution for any political party or from any classified officer or employee. It also prohibits classified officers and employees from being an officer in any political organization or taking part in politics.

However, there are also many examples of political activities that public employees may lawfully engage in. Of course, public employees are still able to vote for their preferred candidates on election days. They are also allowed to express their political views and wear buttons in support of their preferred candidates and political affiliation/party. Below is a list of examples, as provided by OAC 123:1-46-02, of permitted and prohibited political activity.

Permitted activities:

  • Registering and exercising the right to vote;
  • Expressing opinions, orally or in writing;
  • Voluntary financial contributions to political candidates or organizations;
  • Circulating nonpartisan petitions;
    • Cannot identify with any particular party, and
    • Can circulate petitions stating views on legislation.
  • Going to political rallies;
  • Signing nominating petitions in support of individuals;
  • Displaying political material at home or on other personal property;
  • Wearing political badges or buttons;
  • Displaying political stickers on private vehicles; and
  • Serving as a precinct election official under R.C. 3501.22.

Prohibited Activities:

  • Candidacy for public office in a partisan election;
  • Candidacy for public office in a nonpartisan general election if:
    • The nomination to candidacy was obtained in a partisan primary, or
    • Through the circulation of nominating petitions identified with a political party.
  • Filing petitions for candidacy for partisan office;
  • Circulating nominating petitions for any candidate participating in a partisan election;
  • Serving in an elected or appointed office in any partisan political organization;
  • Accepting a party-sponsored appointment to any office normally filled by partisan election;
  • Campaigning in the form of writing for publications, distributing political material, or similar conduct;
  • Campaigning by making speeches on behalf of a candidate for partisan elective office;
  • Solicitation, directly or indirectly, of any assessment, contribution or subscription for any political party or political candidate;
    • Includes monetary or in-kind contributions.
  • Solicitating the sale of, or actually selling, political party tickets;
  • Partisan activities at the election polls;
    • This includes solicitating votes for partisan candidates or issues.
  • Serving as a witness or challenger for any party or partisan committee;
  • Participating in partisan political caucuses; and
  • Participating in a political action committee which supports a partisan activity.

Now that we are familiar with the rules regarding public sector political activity, let’s look at what could happen if an employee did engage in a prohibited partisan political activity. Employees who engage in prohibited political activities may be disciplined, and in certain cases up to termination, at the discretion of the employer. While employers do have discretion in whether to discipline their employees, they must impose discipline consistently. This will ensure that employers do not discipline their employees in a discriminatory or arbitrary way, which is prohibited by both public and private sector labor laws.  

The attorneys at Fishel Downey regularly advise employers on issues pertaining to partisan political activity and other ethics concerns. If you have a specific question or scenario and would like assistance, contact the attorneys at Fishel Downey Albrecht & Riepenhoff LLC at 614-221-1216.