OPINION NUMBER - 145

ADOPTED - 1994/07/08

SUBJECT - Campaign Financing/Use of Public Funds and Resources

REQUESTED BY: C. Matthew Samuelson, Thurston County Attorney, on behalf of Harold Obermeyer, Thurston County Sheriff.

QUESTION: May a sheriff campaign while in uniform?

CONCLUSION

No.

FACTS

An elected and serving county sheriff is seeking reelection. He wishes to know if he may engage in campaign activities while wearing his sheriff's uniform. He also wishes to know if Commission Advisory Opinion #51 and Section 20-160 of the state statutes are applicable to county sheriffs.

ANALYSIS

Section 49-14,101(4) of the Nebraska Political Accountability and Disclosure Act provides as follows:

No public official or public employee shall use personnel, resources, property or funds under that individual's official care and control, other than in accordance with prescribed constitutional, statutory, and regulatory procedures or use such items, other than compensation provided by law, for personal financial gain.

The Nebraska Accountability and Disclosure Commission has regularly interpreted this provision as prohibiting public officials and public employees from using public personnel, resources, property or funds to support or oppose a candidate's election or to advocate or oppose the qualification, passage, or defeat of a ballot question. See Commission Advisory Opinions #68, #82, #89, #95, #112, #113, #128, and #143.

Section 20-160 provides:

Unless specifically restricted by federal law or any other state law, no employee of the state or any political subdivision thereof, as defined in subdivision (2) of section 13-702 shall be prohibited from participating in political activities except during office hours or when otherwise engaged in the performance of his or her official duties. No such employee shall engage in any political activity while wearing a uniform required by the state or any political subdivision thereof.

In Advisory Opinion #51 the Commission ruled that a city police officer running for the office of county sheriff could not campaign while in the uniform of the police department, but could use photos of himself in uniform for campaign advertising.

A threshold question is whether the term "employee" as used in Section 20-160 is applicable to a county sheriff.

Section 49-1442 defines the term public employee. Section 49-1443 defines the term public official. However, neither of these definitions is particularly helpful in determining the difference between an employee and an official. The term "public officer" is defined in 67 C.J.S. Officers, Section 3. That section states in part that:

. . . one is a public officer if he is chosen by the electorate, or appointed, for a definite and certain tenure in the manner provided by law to an office whose duties are of a grave and important character, involving some of the functions of government, and are to be exercised for the benefit of the public for a fixed compensation paid out of the public treasury.

A description of the term "public employee" is found in 67 C.J.S. Officers, Section 2. It states:

A public employee is a person in public service under contract who performs duties which are routine, subordinate, advisory, or as directed, and who is not invested by law with a portion of the sovereignty of the state . . .

Clearly, a county sheriff is a public official or public officer.

Even though the term "employee" is used in Section 20-160, we are aware of the fact that the term "employee" is often used in such a way that it includes officials. For example, an official of the government may be considered an employee for tax purposes or for the purposes of Worker's Compensation. Therefore, we look to the legislative history of Section 20-160 in order to determine what was intended by the Legislature.

Legislative Bill 398 was introduced by Senator Kahle during the 1977 Legislative Session. As introduced, its purpose was to change a statutory prohibition applicable to employees of the Game and Parks Commission. Prior to the passage of LB 398 Section 81-809 of the statutes provided in part:

While retaining the right to vote as he may please, and to express privately his opinion on all political subjects, no employee or officer of the commission shall take any part in political management or in political campaigns, nor shall he hold any party or political office, nor use his official authority or influence for the purpose of interfering with an election or affecting the results thereof. (Underlining added).

The other portions of this statute make it clear that the term "officer" referred to deputy conservation officers. The original bill simply struck the portion of the statute which is underlined above. An amendment was introduced by Senator Newell which added a section to the bill. Except for a statutory reference in the amendment, the Newell amendment is word for word Section 20-160. The Newell amendment generated more discussion on the floor of the Legislature than the bill in its original form. Consider the following statement by Newell in support of his amendment:

. . . Senator Cullen, for one, expressed concern that this would prohibit, that the problem was that some local employees might run for public office. The law still says and specifically says that they cannot participate or even run for public office on work time. In other words, this would prohibit them, the law right now presently says that they are prohibited from engaging in political activities during office hours or while they are wearing the uniform of their official capacity . . . (Floor debate LB 398, April 6, 1977, Pages 02602 and 02603).

It is apparent from this passage, and others during the debate, that the Legislature was not concerned with public officials running for reelection. The concern was with public employees who might wish to run for public office. It is therefore our conclusion that while Section 20-160 is applicable to deputy county sheriffs, it does not apply to county sheriffs. Consequently, Advisory Opinion #51, which is based upon the language of Section 20-160, applies to deputy county sheriffs but does not apply to county sheriffs. This still leaves unanswered the question of whether a county sheriff may campaign while in uniform.

For a variety of reasons courts across the United States have consistently held that government may not use its resources for the purpose of supporting or opposing candidates or for the purpose of advocating a position on a ballot question. As stated, the Commission has consistently held that this type of activity is prohibited by Section 49-14,101(4). Given these past interpretations, there is no doubt that the following activities by a county sheriff would be contrary to this section of law: 1) The use of a county provided vehicle for campaign travel or the use of a personal vehicle for campaign travel when the county is reimbursing the owner for the campaign miles traveled; 2) the use of a county photocopier to run off campaign flyers; 3) directing the dispatcher, deputies, etc. to stuff campaign materials into envelopes; 4) requiring personnel to pass out campaign literature to those coming to the sheriff's office on business.

What though, is the nature of a sheriff's uniform?

Section 23-1719 establishes in detail the uniforms which will be worn by county sheriffs and sheriff's deputies. Section 23-1717 provides as follows:

County sheriffs and their deputies, when on duty, shall be dressed in a distinctive uniform, as described in Section 23-1719, and display a badge of office as described in Section 23-1719; . . .

The statute goes on to provide certain specific exceptions to the requirement to wear the uniform while on duty.

Section 23-1718 provides that "County sheriffs and their deputies in counties of less than 200,000 population shall receive an allowance for uniform expense of not less than $10.00 per month, to be paid by the county which such officers serve."

With these statutes in mind, it is clear that a sheriff's uniform is meant to serve a government purpose. However, the uniform is usually personally owned by the sheriff. Is the uniform, therefore, a public resource or is it something else? Opinion #194 of the Attorney General (1978) provides some insight. It stated:

The obvious intent of Section 23-1718 is to reimburse all or part of the cost incurred by the sheriff and deputies in the purchase of official uniforms. It is somewhat comparable to the mileage allowance for travel in the performance of duties, as provided in Section 23-1112 R.R.S. 1943. However, in the case of a uniform expense, the Legislature chose to simply provide a minimum allowance, rather than to fix either a flat sum or minimum/maximum limits.

Considering the statutes as a whole, and the fact that the county is required to provide at least part of the cost of the uniform, it is our conclusion that a sheriff's uniform is a public resource as contemplated by Section 49-14,101(4). Therefore, while a sheriff may use photographs of himself in uniform for campaign literature, he may not engage in campaign activities while in uniform. Because of the unique nature of the sheriff's position, further discussion is required.

The Commission recognizes that county sheriffs in Nebraska function under a wide variety of circumstances. Some sheriffs may have a dozen or more deputies. Other sheriffs have only one or two deputies. Some sheriffs have no deputies at all and may be the only law enforcement officer in an entire county. We are not unmindful of the fact that many sheriffs are on call twenty-four hours a day. However, we do not believe that the conclusion reached by the Commission will unduly restrict the ability of the sheriff to engage in campaign activity.

The Commission recognizes that public relations is an important aspect of any county sheriff's functions. He needs to be accessible to the public and respond to public concerns. Questions and concerns of the public may be directed to the sheriff while he is on duty and in uniform. In many cases these questions and concerns may relate to campaign issues. The sheriff may certainly always respond to these questions and concerns even if he is in uniform and even if he is on duty.

Prohibited are activities which are deliberate in nature rather than incidental. For example, a county sheriff should not, while in uniform, walk from business to business requesting that the business owners place campaign posters in their windows. He should not actively solicit votes while in uniform or distribute campaign literature while in uniform. Besides the prohibition against this activity that we find in Section 49-14,101(4), there is a practical aspect to this prohibition.

Law enforcement officers, including county sheriffs, have a unique status. This status is characterized by special powers, special protections, and special responsibilities. Among the special powers are the power to arrest and the power to "call any person to their aid." See Section 23-1704. Among the protections are the prohibition against the obstruction of a peace officer (Section 28-906), the prohibition against an assault on a peace officer (Section 28-929, Section 28-930, and Section 28-931) and the prohibition against impersonating a peace officer (Section 28-610). Among the special responsibilities is the responsibility to avoid what is known as oppression under color of office. See Section 28-926.

State statutes make it clear that a law enforcement officer engaged in his or her duties ought to be easily identifiable as a law enforcement officer. Clearly, when law enforcement officers are elected officials, it is important for the public to know when the officer is engaging in official duties and when the officer is not. Wearing a uniform while engaged in official duties and not wearing a uniform when engaged in campaign activities is an important means of distinguishing these different types of activities.

SUMMARY

A county sheriff, while not subject to the provisions of Section 20-160, is subject to the provisions of Section 49-14,101(4) and is therefore prohibited from engaging in overt and deliberate campaign activities while in uniform. The sheriff may use photos of himself in uniform for campaign literature and may respond to questions or inquiries from the public, even if campaign related in nature, while in uniform and on duty.