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Advisory Opinion No. 2004-4
I. Summary
City officers and employees may not make political endorsements that give a special
advantage to political candidates or campaigns or that might reasonably be interpreted as
official endorsements by the city or one of its agencies. In most cases, the mere identification
of a city officer's or employee's official title or position, without more, will not be prohibited.
However, endorsements that go beyond the mere identification of one's title or position are
likely to imply an official endorsement by the city or one of its agencies and would be prohibited.
II. Facts
On July 3, 2003, the Ethics Commission (the Commission) received a request for
advice asking whether under the city's ethics laws city employees and officers are prohibited
from identifying their official titles or positions when endorsing candidates for elective offices.
There are no advisory opinions directly on point. The past practice of the Commission has
been to informally suggest to city officers and employees that they not add their official titles
or positions to political endorsements.
III. Issue
Are city officers and employees prohibited from using their official city titles or
positions when endorsing candidates for elective offices?
IV. Discussion and Analysis
A. The City's Fair and Equal Treatment Provision
Section 11-104 of the Revised Charter of Honolulu (RCH), which reflects the city's
fair and equal treatment policy, provides:
Elected or appointed officers or employees shall not use their official positions to
secure or grant special consideration, treatment, advantage, privilege or exemption
to themselves or any person beyond that which is available to every other person.
Our analysis of whether city officers and employees violate RCH § 11-104 by using
their city titles or positions in political endorsements starts with the basic premise that
candidates typically seek such endorsements precisely because they are perceived to have
value in the minds of voters and therefore might give the candidate an advantage over his or
her opponent in an election. In some cases, the endorsement of a city officer or employee
might create a false impression that it reflects the position of the city itself. In such cases, the
endorsement would clearly give the candidate a "special . . . advantage . . . beyond that
which is available to" his or her opponent. RCH § 11-104.
The plain language of RCH § 11-104 therefore could be read to ban city officers
or employees from using their official titles or positions in political endorsements. See,
Advisory Opinion No. 2002-5 (December 17, 2002) (RCH § 11-104 "prohibits the use
of a city officer's or employee's position or time or any other city resource for political
purposes."). Under such a strict construction, the use of one's official title in a private
political endorsement would constitute a per se violation of RCH § 11-104.
We are constrained, however, from giving RCH § 11-104 such a literal reading by
the fundamental rights of freedom of speech guaranteed by the First Amendment to United
States Constitution and the Constitution of the State of Hawaii.
B. Constitutional Limits
The United States Supreme Court has long-recognized that an employee does not
abandon his or her First Amendment rights simply by agreeing to work for a public entity.
A city therefore may not discipline an "employee on a basis that infringes that employee's
constitutionally protected interest in freedom of speech." Rankin v. McPherson, 483 U.S.
378, 383, 107 S.Ct. 2891, 2896 (1987); see also, Connick v. Myers, 461 U.S. 138,
143-44, 103 S.Ct. 1684, 1688-89 (1983) (noting the Court's longstanding rejection of
Justice Holmes' comment that a police officer "may have a constitutional right to talk
politics, but he has no constitutional right to be a policeman.").
At the same time, however, the realm of protected speech for public employees is
much narrower than that for the general public. See Connick, 461 U.S. at 144, 103
S.Ct. at 1688-89; Pickering., 391 U.S. at 568, 88 S.Ct. at1734-35. Thus, government
entities may constitutionally restrict certain political activities, including political speech,
of their employees. For instance, in United States Civil Serv. Comm'n v. National
Ass'n of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880 (1973), the Supreme Court
upheld the validity of the Hatch Political Activities Act, 5 U.S.C.A. §§ 7321- 7327 (1980)
("Hatch Act"), finding that federal employees could constitutionally be prohibited from
taking formal positions in political parties, from undertaking substantial roles in partisan
political campaigns and from running for office on partisan political tickets. 413 U.S. at
565, 93 S.Ct. at 2890.
In general, the government's restrictions on a public employee's freedom of
speech are subject to a balancing test: the employee's interest in commenting on matters
of public concern is weighed against the interest of the government as an employer in
promoting the efficiency of the public service it performs through its employees.
Pickering v. Board of Education, supra. "'The balancing test differs depending upon
the type of expression, the nature of the agency, and the context in which the expression
is made.'" Advisory Op. 2002-5 (Dec. 17, 2002) (quoting Martin v. Lauer, 686
F.2d 24, 31 (D.C. Cir. 1982)).
C. The Mere Use of One's City Title or Position in a Political Endorsement
Is Not Prohibited by the City's Fair and Equal Treatment Policy.
We conclude that the use of an officer's or employee's name and official title or
position in a private political endorsement does not constitute a per se violation of RCH
§ 11-104. Determinations as to whether political endorsements by city officers and employees
violate the city's fair and equal treatment policy should ordinarily be done on a case-by-case
basis. A blanket prohibition, by definition, would be enforced regardless of the particular
circumstances and without specific findings that in all cases the city's interests clearly outweigh
the individual's constitutional free speech rights. In our view, that would be unconstitutional.
See Pickering v. Board of Education, supra.
While we recognize that determinations as to whether political endorsements by city
officers and employees comply with the requirements of RCH § 11-104 should ordinarily be
based on the facts of individual cases, we conclude that, in most cases, the mere identification
of a city officer's or employee's official title or position, without more, is permissible under
RCH § 11-104. That is, absent exceptional circumstances, city officers and employees
may identify themselves by their official city titles and positions when making political endorsements.
We find support for our position in an opinion of the Hawaii State Ethics Commission
(HSEC). The HSEC has opined that the fair and equal treatment provision in the state's ethics
code (Hawaii Revised Statutes (HRS) § 84-31) does not "prohibit in a per se fashion the
mere use of official title in a campaign endorsement[.]" HSEC Advisory Opinion No. 89-1
(January 11, 1989). The HSEC, however, was careful to note that its advisory opinion was
limited to the finding that the "mere use of state title (including a legislative assignment title) in
conjunction with a campaign endorsement is simply not intended to be prohibited by section
84-13" and that it did not mean that "there could never be a situation in which a particular
use of official title might rise to the level of a use of position to give someone an unwarranted
privilege, advantage, contract, exemption, or unwarranted treatment in violation of section
84-13."
V. Conclusion
We conclude that RCH § 11-104 does not require an across-the-board ban on using
one's official title or position in a political endorsement. We further conclude that, in most
cases, the identification of a city officer's or employee's official title or position, without more,
is permissible under RCH § 11-104.
We wish to be clear about the limits of this opinion. While the mere identification of
a city officer's or employee's official title or position is generally allowed in political
endorsements, this general rule is still subject to exceptions in specific cases – i.e., in certain
exceptional circumstances, even the mere use of one's official title or position in an
endorsement could constitute the granting of a "special" advantage to the recipient of the
endorsement in violation of RCH § 11-104. City officers or employees intending to add their
official titles or positions to endorsements should seek advice from the Commission in doubtful
cases. Further, nothing in this opinion should be construed as granting the license to go
beyond the simple identification of one's official title or position in an endorsement. To the
contrary, endorsements that go beyond the mere identification of one's title or position, such
as wearing official uniforms in connection with campaign activities, are likely to imply official
endorsements by the city and would therefore be prohibited under RCH § 11-104.
Dated: April 21, 2004
ROBIN DAVID LIU, Chairperson
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