By: Rudman Winchell Attorney Erik M. Stumpfel
Does your municipal charter, a municipal ordinance or personnel policy prohibit municipal employees or family members of municipal employees from campaigning, running for or serving as town or city council members, school board members or other municipal elected offices? If so, a recent Maine Law Court decision may cast doubt on the validity of those prohibitions as applied in individual situations.
In Callaghan v. City of South Portland, 2013 ME 78, decided on September 10, 2013, the Law Court examined a newly-amended City of South Portland personnel policy that prohibited South Portland municipal employees from campaigning, running for or serving as members of the South Portland School Committee or City Council.
The Callaghan case involved two municipal employees who each sought to be elected to the South Portland School Committee. A 5-1 majority of the Law Court ultimately struck down the policy as applied to the two employees concerned, although it narrowed the earlier Superior Court decision that had struck down the policy as applied to all South Portland municipal employees who might seek to run or campaign for School Committee positions.
The essential holding in Callaghan is that the right to campaign and run for public office is a protected First Amendment right; and that a unit of local government, as an employer, may only restrict its employees’ rights in this area to serve a “substantial governmental interest” that outweighs the employees’ interest in the First Amendment speech inherent in a political campaign or candidacy.
Although the Law Court held that the First Amendment right to run and campaign for office was not a “fundamental right” so as to trigger “strict scrutiny” by the courts, the balancing test applied by the Law Court means that future challenges to disqualification language under similar charter, ordinance or policy provisions must be reviewed by the courts on an individual, case-by-case basis. In some cases, the same disqualification language may be constitutional when applied to one individual or class of municipal employees, but not when applied to a different individual or class. This lack of a single, “bright line” standard seems likely to result in a number of future individual challenges to similar disqualification provisions.
In light of this possibility, it may be worthwhile for municipalities to review current municipal charter, ordinance and policy provisions that restrict campaign activities or candidacies by municipal employees, so as to better define and articulate the particular categories of municipal employees who may be subject to the restrictions, and the “substantial governmental interest” that gives rise to the restrictions concerned. While there is no single bright line test for the types of governmental interests that will outweigh individual First Amendment rights in this area, one thing seems certain: Blanket prohibitions on municipal employees campaigning, running for or holding elective municipal offices, not clearly tied to some articulable governmental interest, are likely to be struck down in at least some future cases.