Summarized below are Commission cases addressing State employees' participation in partisan political activities. The Commission permits involvement in partisan political activities provided that there is no provision in the Departmental code of ethics prohibiting such activities. (Election Law Enforcement Commission, State Ethics Commission and several other agency codes have specific provisions prohibiting such activities.) State employees, however, may not use State time or State resources in pursuit of such activities and must provide notice to the Departmental Ethics Liaison Officer.
Two sections of the Conflicts Law, N.J.S.A. 52:13D-14 and 24, address the acceptance and/or solicitation of campaign contributions.
Section 14 provides:
No State officer or employee, special State officer or employee, or member of the Legislature shall accept from any person, whether directly or indirectly and whether by himself or through his spouse or any member of his family or through any partner or associate, any gift, favor, service, employment or offer of employment or any other thing of value which he knows or has reason to believe is offered to him with intent to influence him in the performance of his public duties and responsibilities. This section shall not apply to the acceptance of contributions to the campaign of an announced candidate for elective public office.
Section 24 provides:
a. No State officer or employee, special State officer or employee, or member of the Legislature shall solicit, receive or agree to receive, whether directly or indirectly, any compensation, reward, employment, gift, honorarium, out-of-State travel or subsistence expense or other thing of value from any source other than the State of New Jersey, for any service, advice, assistance, appearance, speech or other matter related to the officer, employee, or member's official duties, except as authorized in this section.
c. This section shall not apply to the solicitation or acceptance of contributions to the campaign of an announced candidate for elective public office, except that campaign contributions may not be accepted if they are known to be given in lieu of a payment prohibited pursuant to this section.
In Case No. 45-73, a member of the Commission on Legalized Games of Chance requested an opinion from the Commission as to whether the provisions of the Conflicts of Interest Law would restrict his involvement in political activities in the county where he resided. The Attorney General's Office was asked to review the request and issued an opinion which advised that the State official was permitted to engage in political activities, barring a prohibition against such activities in the Department's Code of Ethics.
In Case No. 201-75, the Commission referred a request for advice as to whether a member of a County Board of Taxation was permitted to become a candidate for and, if elected, hold an Assembly seat, to the Attorney General. Attorney General Opinion M75-2075 concluded that a member of a County Board of Taxation holds a State office of profit within the meaning of Article IV, Section V, Paragraph 4, of the New Jersey Constitution and, as such, was permitted to become a candidate for a seat in the Legislature, but, if elected, must resign as a County Board Member before taking his Legislative seat.
In Case No. 435-77, the Commission determined that a Department of Health employee was permitted to serve as chairman or co-chairman of a public employees' committee in support of a gubernatorial candidate. The State employee was cautioned that he must not use or attempt to use his official position to secure unwarranted privileges or advantages for the candidate of his choice. Further, he must be careful not to permit his political activities to conflict with the proper discharge of his duties in the public interest.
In Case No. 756-79, the Commission determined that it would not be a conflict of interest for a member of a County Board of Taxation to simultaneously serve as a Commissioner on the County Tax Board and hold the position of County Chairman of a political party in the same county.
In Case No. 972-81, the Commission determined that a Housing Finance Agency ("HFA") employee was permitted to run for municipal office in a municipality where housing projects sponsored by the HFA were located. The employee was cautioned that, if elected, she should not have any dealings with any project located in East Orange as long as she was a member of the Council.
In Case No. 987-81, the Commission affirmed the Department of Labor Ethics Committee determination that the employee's position as a Democratic State Committeeman and Member of the Warren County Democratic Committee as well as his candidacy for the Lopatcong Township Council did not constitute a violation of the Conflicts of Interest Law. The Commission also concurred with the caveats imposed by the Department prohibiting the use of State time, stationery and telephones by the employee for his political activities and further extended this prohibition to include any other State resources.
In Case No. 34-85, two members of the Board of Dentistry were advised that N.J.S.A. 52:13D-24 expressly permits the solicitation and acceptance of campaign contributions for announced candidates for elective public office. The dentists were cautioned, however, about political activities which directly involve persons subject to licensure and review by the Board of Dentistry. The dentists sent letters, on personal stationery, to thousands of New Jersey licensed dentists, to solicit re-election campaign funds for a New Jersey Assemblyman.
In May 1990, the Casino Control Commission ("CCC") requested an Advisory Opinion from the Commission as to whether certain political activities, if engaged in by members of the CCC, would violate ethical restrictions contained in the Casino Control Act or the CCC's Code of Ethics. Because this request involved a statutory interpretation, the Attorney General's Office was asked to review it. An Opinion was received which stated that, given the directive in the Casino Control Act that the CCC promulgate a code of ethics modeled upon the Code of Judicial Conduct, it appeared that without a legislative change to the Casino Control Act, members of the CCC were prohibited from those political and partisan activities that are prohibited by the Code of Judicial Conduct.
In Case No. 17-95, a County Superintendent of Elections employee was advised that she was permitted to run for a council seat in a partisan political election because her responsibilities as Program Coordinator involved only student voter registration, the planning of educational programs and the handling of press releases and correspondence. The employee had no responsibilities in connection with the election process. She was advised, however, that she should have no involvement with student voter registration activities in the municipality in which she was a council candidate.
In 1997, in Case No. 29-97, the Commission considered the effect of section 16(b) of the Conflicts Law on State officers and employees who serve as campaign treasurers. Section 16(b) prohibits State officers and employees from representing, appearing for or negotiating on behalf of, or agreeing to perform any of those activities for, a party other than the State in connection with any matter pending before any State agency. The Commission's precedent has established that signing reports, making telephone calls, attending meetings and/or responding to inquiries by a State agency on behalf of a third party are acts of representation. Campaign reports must be signed by the campaign treasurer and submitted to the Election Law Enforcement Commission ("ELEC"), a State agency, and in the event of a complaint to ELEC, the treasurer would be required to appear in person or respond in writing to ELEC's inquiry. Thus, a State officer or employee is prohibited from serving as a campaign treasurer because the treasurer's duties include representing the campaign organization and/or the candidate before ELEC.
In Case No. 07-01, a County Superintendent of Elections employee was advised that his proposed participation in his friend's campaign for municipal office was not appropriate under the application of section 23(e)(5), activity which might reasonably be expected to impair objectivity and independence of judgment, and section 23(e)(7), appearance of impropriety. In his official capacity, the employee supervised a staff of 53 employees, represented the Superintendent of Elections at necessary functions, and assisted voters and interested parties by providing requested records.
The employee expected to participate in the following political activities: door-to-door campaigning, participating in phone bank work, coordinating volunteers, giving instructions on election procedures, staffing the campaign headquarters, participating in voter registration drives, attending rallies and fundraising events, and preparing mailings to registered voters.
In prohibiting the activity, the Commission balanced the State employee's interests with the public's interest in ensuring fair and unbiased elections.
In Case No. 05-03, the Commission considered an allegation that a Department of Community Affairs ("DCA") employee violated the Political Activities Prohibition of the DCA Code of Ethics when her name and picture appeared on a campaign mailer for a local mayoral candidate. The campaign mailer prominently featured the State employee in her capacity as a former mayor. It did not mention her role with the State and did not reference any relationship between the municipality and the DCA. Section XI, Political Activities Prohibition, of the DCA Code provides as follows:
An employee shall not directly or indirectly use or seek to use his authority or the influence of his position to control or modify the political action of another person. An employee during the hours of duty shall not engage in political activity; nor shall he at any other time participate in political activities, which would impair his usefulness in the position in which he is employed. A State employee retains the right to vote as he chooses and to express his opinions on political subjects and candidates.
The Commission dismissed the allegation, noting that Section XI of the DCA Code of Ethics specifically states that a State employee retains the right to express opinions on political subjects and candidates. The State employee exercised that right when she endorsed the candidate in his election campaign.
Additional Restrictions. The Department of Personnel has issued regulations that address the political activities of State employees. These regulations, which reference the Federal Hatch Act, are not administered or enforced by the Commission and are printed here for the reader's information and convenience.
N.J.A.C. 4A:10-1.2 Political activity
(a) No employee in the career or senior executive service shall directly or indirectly use or seek to use his or her posi-tion to control or affect the political action of another person or engage in political activity during working hours. See N.J.S.A. 11A:2-23.
(b) No employee in the career, senior executive, or unclassified services whose principal employment is in connec-tion with a program financed in whole or in part by Federal grants or loans, shall engage in any of the following prohib-ited activities under the Hatch Act (5 U.S.C. §§ 1501 et seq.):
1. Use official authority or influence for the purpose of interfering with or affecting the result of an election or nomination for office;
2. Directly or indirectly coerce, attempt to coerce, command, or advise a State, county, or municipal officer or em-ployee to pay, lend, or contribute anything of value to a party, committee, organization, agency, or person for political purposes; or
3. Be a candidate for elective office, if the salary of the employee is paid completely, directly or indirectly, by Fed-eral grants or loans, except that this prohibition shall not apply to:
i. The Governor or Lieutenant Governor or an individual authorized by law to act as Governor;
ii. The mayor of a city;
iii. A duly elected head of an executive department of the State or a municipality, which office does not fall under the Civil Service Act at Title 11A, New Jersey Statutes; or
iv. An individual holding elective office.
(c) The office of the Special Counsel of the United States Merit Systems Protection Board has responsibility for the investigation of Hatch Act matters.
N.J.A.C. 4A:2-5.1 General provisions
b. An appointing authority shall not take or threaten to take any action against an employee in the career service or an employee in the senior executive service with career status based on the employee's permissible political activities or affiliations. This subchapter shall also apply to State service employees in the unclassified service who do not serve in policy-making or confidential positions.
September 22, 2016