REPORT OF THE ATTORNEY GENERAL
NEWSPAPER EDITORIALS OF THE STATE ELECTION COMMISSIONER
CARL C. DANBERG
ATTORNEY GENERAL
By: Erika Y. Tross
Deputy Attorney General
Eugene M. Hall
Director of Fraud Division
Date: January 17, 2006
ISSUE
In 2002, Frank Calio was appointed State Election Commissioner. Prior to his appointment, Commissioner Calio was a frequent writer and contributor of articles and commentaries for various newspapers and other publications. After his appointment, Commissioner Calio continued to write and have published articles and commentaries discussing a variety of issues, including political subjects. Approximately two years after his appointment, on May 5, 2004, the legislature enacted Title 15, Section 308 of the Delaware Code. Section 308 limits the political activity of employees of the Office of the State Election Commissioner and prescribes punishment for any violation. Are Commissioner Calios actions of writing and having published articles and commentaries discussing political subjects prosecutable under Section 308?
Short Answer: No. Section 308 prohibits an employee from either using his office to control or modify the political actions of another or actively participating in political activities. Although Section 308 does not define the term political activities the common, ordinary meaning of the term does not include the type of activity in which Commissioner Calio engaged. Commissioner Calio did not violate the first prohibition in Section 308 and his actions do not fall within the confines of the second prohibition. Moreover a broader interpretation of Section 308 encompassing the type of actions Commissioner Calio committed would likely violate the First Amendment. Therefore Commissioner Calios actions are not prosecutable under Section 308.
DISCUSSION
Two Delaware statutes limit the political activity of the State Election Commissioner Sections 301 and 308 of Title 15 of the Delaware Code. Therefore any political activity the State Election Commissioner engages in must comport with the requirements of Sections 301 and 308.
Title 15, Section 301 of the Delaware Code states, in pertinent part, The State Election Commissioner shall not directly or indirectly use or seek to use his or her authority or official influence to control or modify the political action of another person or at any time participate in any political activities or campaigns. 15 Del. C. ' 301(e). Title 15, Section 308 of the Delaware Code is similar to Section 301. It states,
(a) No employee of the Office of the State Election Commissioner shall directly or indirectly use or seek to use his or her authority or official influence to control or modify the political action of another person or at anytime actively participate in any political activities or campaigns.
(b) Any person who shall violate this section shall be fined not more than $500 and shall forfeit his or her position or employment.
15 Del. C. ' 308.
Although both statutes are nearly identical in wording[1], Section 308 prescribes punishment for a violation, while Section 301(e) does not. Thus this memorandum will examine whether Commissioner Calios actions are prosecutable under Section 308. Note, however, that a violation of Section 308 would most likely constitute a violation of Section 301(e).
Section 308 became effective on May 5, 2004. To date, no Delaware court has applied or interpreted the statute. Therefore, in order to determine whether Commissioner Calios actions of writing articles opining on political issues have violated Section 308, the Attorney General must apply and interpret the statute.
A. Statutory Construction Of Section 308
A fundamental goal in the application and interpretation of any statute is to ascertain and give effect to the intent of the legislature. Daniels v. State, 538 A.2d 1104, 1109 (Del. 1988) (quoting Coastal Barge Corp. v. Coastal Zone Indus. Control Bd., 492 A.2d 1242, 1246 (Del. 1985)). If a statute is unambiguous, there is no need for interpretation, and the plain meaning of the statutory language controls. Eliason v. Englehart, 733 A.2d 944, 946 (Del. 1999). If a statute is ambiguous, it should be construed in a way that will promote its apparent purpose and harmonize with other statutes. Id. A statute is ambiguous where it is reasonably susceptible of different conclusions or interpretations. Coastal, 492 A.2d at 1246. Ambiguity may also arise from the fact that giving a literal interpretation to words of the statute would lead to such unreasonable or absurd consequences that they could not have been intended by the legislature. Id.
Once a statute is determined to be ambiguous several principles guide the process of interpretation. First the statute must be read as a whole in a manner that will promote its purposes. Rubick v. Security Instrument Corp., 766 A.2d 15, 18 (Del. 2000). In construing a statute, the interpreter must remember that, A statute is passed by the General Assembly as a whole and not in parts or sections. Consequently each part or section should be read in light of every other part or section to produce an harmonious whole. Coastal, 492 A.2d at 1245. Second, courts should consider the statutes history and examine the text of the statute and draw inferences concerning the meaning from its composition and structure. Rubick, 766 A.2d at 18 (quoting Klotz v. Warner Communications, Inc., 674 A.2d 878, 879 (Del. 1995)). In addition, any undefined words must be given their ordinary, contemporary common meaning. Diamond v. Chakrabarty, 447 U.S. 303, 308 (1980); Coastal, 492 A.2d 1242.
A literal reading of Section 308 indicates that an employee of the Office of the State Election Commissioner engages in prohibited activity when he either: 1) uses or seeks to use his authority or official influence to control or modify the political action of another person; or 2) actively participates in political activities or campaigns. The first prohibition is rather clear an employee may not use his position to control or modify the political actions of another. The second prohibition, however, is unclear in that it fails to define the term political activities. In fact, a literal interpretation of this phrase would lead to the conclusion that employees are prohibited from engaging in any and all political activities, including voting. Such a result is unreasonable. Therefore the statute is ambiguous and must be construed to produce a reasonable result. In construing the statute we begin by examining the legislative intent. See, Coastal, 492 A.2d at 1246.
The legislative history of Section 308 reveals that the statute was enacted to impose the same standards of conduct regarding political activity on the persons employed by the Office of the State Election Commissioner as imposed on the employees of the Departments of Elections for the three counties. 15 Del. C. ' 308 (synopsis). Thus the standards of conduct that govern employees of the Department of Elections are now to govern the employees of the State Election Commissioner.
Title 15, Section 219 describes the standards of conduct, as it relates to political activity, for employees of the Department of Elections. It states,
(a) No person, member, administrative director or deputy administrative director or employee of the department shall directly or indirectly use or seek to use his or her authority or official influence to control or modify the political action of another person or at any time actively participate in any political activities or campaigns.
(b) Any person who shall violate this section shall be fined not more than $500 and shall forfeit his or her position or employment.
15 Del. C. ' 219.
Like Section 308, Section 219 prohibits two types of conduct by employees (1) using or seeking to use authority or official influence to control or modify the political action of another person and (2) actively participating in political activities or campaigns. But also like Section 308, Section 219 fails to define the term political activities. Moreover the legislative history of Section 219 does not clarify the meaning of the term. Thus Section 219 does not offer much guidance in the meaning of the term political activities.
The House Administration Committee report for Section 308 offers a bit of insight into the intent of the legislature. In its findings the Committee noted that,
Mr. Frank Calio, State Elections Commissioner, agrees with Sen. Blevins that the appearance of nonpartisanship among elections officials is necessary to maintain public confidence in the process. [T]he committee does not intend that any employee of the Office of the State Elections Commissioner should be in immediate danger of termination, but believes if they participate in currently legal partisan activities, they should have an appropriate amount of time to withdraw should this bill become law.
DE Comm. Rep., 2004 Reg. Sess. S.B. 183 (emphasis added). Thus the Committee findings seem to indicate that the political activity being targeted by Section 308 is partisan political activity.
Although the legislative history provides some insight into the meaning of the term political activities, it is not sufficient to develop the ordinary, common meaning of the term. As such we must look to other Delaware statutes, Delaware case law, and other authoritative case law for guidance on the ordinary, contemporary common meaning of the term. See, Coastal, 492 A.2d at 1245; Bailey v. State, 450 A.2d 400, 402-03 (Del. 1982).
1. Delaware statutes
Several sections of the Delaware Code mention the term political activity. But none of the statutes define the term. One statute, however, defines the term partisan political activity. Title 9, Section 1401 of the Delaware Code delineates the qualifications for, compensation of and limits on the New Castle County Auditor. It states, in relevant part, that,
The County Auditor shall not be actively involved in partisan political activities or the political affairs of New Castle County. The term "partisan-political activity" shall include but is not limited to: running for public office, serving as a party committee-person, working at a polling place on Election Day, performing volunteer work in a political campaign, soliciting contributions for political campaigns, and soliciting contributions for a political action committee or organization, but shall not include registering and voting in any election, expressing an opinion as an individual privately and publicly on political subjects and candidates, or involvement in non-partisan or public community organizations or professional groups.
9 Del. C. ' 1401(d) (2005).
Thus in Section 1401 the Delaware legislature defines partisan political activities as including those activities involving running for public office or assisting others in running for public office. But, expressing an opinion as an individual privately and publicly on political subjects and candidates is expressly excluded from the meaning of the term.
2. Delaware case law
No Delaware court has yet to define the term political activity. The Attorney Generals office has, however, issued an opinion clarifying the meaning of the term. In 1978, the Attorney General responded to an inquiry regarding, inter alia, the effect of 29 Del. C. ' 5954(b) on a merit system employee running for or serving in an elective office. Op. Atty Gen. 78-016, 1978 WL 22483, at *1 (1978).
Title 29, Section 5954 of the Delaware Code governs the limits on political activity for Delaware employees in the classified service. It states in pertinent part that, No employee in the classified service shall engage in any political activity or solicit any political contribution, assessment or subscription during the employees hours of employment or while engaged in the business of the State. 29 Del. C. ' 5954(b).
In responding to the question posed, the Attorney General found that Section 5954 prohibits a merit system employee from campaigning for office or performing other political activities during state time. Op. Atty Gen. 78-016, 1978 WL 22483, at *1. In determining the types of activities prohibited by Section 5954, the Attorney General ruled that, The type of activities which are prohibited by Section 5954(b) include those which might be undertaken by candidates or incumbents in office. Solicitation of political contributions is explicitly prohibited. Id. at *3. The opinion then examined the United States Supreme Courts definition of political activities. Relying on Supreme Court jurisprudence the Attorney General concluded that political activities encompass, doing campaign work, asking other employees to do campaign work or giving referrals to persons who might help in the campaign, ; soliciting campaign contributions from other employees; receiving and distributing campaign posters in bulk ; making campaign speeches or conducting telephone campaigning. Id. (citing Broadrick v. Oklahoma, 413 U.S. 601, 606 (1973)). Thus the Attorney Generals opinion seems to indicate that political activity, as used in the statute, only includes those activities that are partisan in nature. An individuals public expression on a political issue is not included.
3. Other case law
In United States Civil Service Commission v. National Association of Letter Carriers AFL-CIO, 413 U.S. 548 (1973), the United States Supreme Court reviewed the power of Congress to enact the Hatch Act. The Hatch Act prohibits certain federal and state employees from taking an active part in political management or political campaigns. Letter Carriers, 413 U.S. at 550. In analyzing the Hatch Act, the Supreme Court found that Congress has the power to limit certain political activities of federal and state employees. The Court reasoned that Congress has the power to limit the following activities:
activities such as organizing a political party or club; actively participating in fund-raising activities for a partisan candidate or political party; becoming a partisan candidate for, or campaigning for, an elective public office; actively managing the campaign of a partisan candidate for public office; initiating or circulating a partisan nominating petition or soliciting votes for a partisan candidate for public office; or serving as a delegate, alternate or proxy to a political party convention.
Id. at 556. The Court held that, neither the First Amendment nor any other provision of the Constitution invalidates a law barring this kind of partisan political conduct. Id.
In United Public Workers of America v. Mitchell, 330 U.S. 75 (1947), the Supreme Court also reviewed the propriety of the Hatch Act. The Court noted approvingly that the Hatch Act provisions at issue only implicated partisan political activity. Mitchell, 330 U.S. at 570. Expressions, public or private, on public affairs, personalities and matters of public interest, not an objective of party action, are unrestricted by law so long as the Government employee does not direct his activities toward party success. Id.
It is important to note that the legislative history of the Hatch Act reflects that, Senator Hatch himself indicated that an employee was not to be restrained as to private expression of his political opinion. Wilson v. United States Civil Service Commission, 136 F.Supp. 104, 106 (D. D.C. 1955). The word privately was later stricken from the Act as being too restrictive. Id. Thus the federal government did not intend for the Hatch Act to restrict employees from expressing their opinion, publicly or privately, on political subjects so long as the expressions are not an objective of party action.
Section 308 does not define the term political activities. But after examining the intent of the legislature in enacting Section 308 and reviewing other relevant Delaware statutes, Delaware case law and other authoritative case law, it is evident that the ordinary, common meaning of the term political activities denotes those political activities that are partisan in nature. Therefore Section 308 should be construed to prohibit an employee from: 1) using his office to control or modify the political actions of others; and 2) participating in partisan political activities.
Moreover, if we were to construe the term political activities to broadly include any and all forms of political activity, including voting and public expression of opinion on political issues, the statute would likely run afoul of the First Amendment.
B. First Amendment Implications Of Section 308
A statute is presumed to be constitutional. Wien v. State, 882 A.2d 183, 186 (Del. 2005). But where a possible infringement of a constitutional guarantee exists, the interpreting court should strive to construe the legislative intent so as to avoid unnecessary constitutional infirmities. State v. Baker, 720 A.2d 1139, 1144 (Del. 1998) (quoting Richardson v. Wile, 535 A.2d 1346, 1350 (Del. 1988)). In this case Section 308 implicates First Amendment rights.[2] Therefore any interpretation must carefully construe the legislative intent in enacting Section 308 to avoid unnecessary constitutional infirmities.
The Supreme Court has frequently reaffirmed that speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection. Connick v. Myers, 461 U.S. 138, 145 (1983) (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982)). This protection, however, is not absolute. Each state also has an interest, as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. Pickering v. Bd. Of Education of Township High School District 205, 391 U.S. 563, 568 (1968). As such there must be a balance between the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the government, as an employer in promoting the efficiency of the public services it performs through its employees. Letter Carriers, 413 U.S. at 564. Therefore statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society. Broadrick, 413 U.S. at 611-12. Any enforcement of a statute then that restricts First Amendment rights is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Id. at 613.
On its face, Section 308s prohibition of political activities is overbroad. No definition of political activities is provided and thus it appears to include any and all activities including activities like voting and public and private expressions of opinion on political subjects. A rule which restricts political activity as that word is used in its broader sense is overly broad and touches upon protected political activity. Gray v. City of Toledo, 323 F.Supp. 1281, 1288 (D. N.D. Ohio 1971). Thus, if Section 308 is not narrowly tailored, it is likely that the statute is unconstitutional. If Section 308 is to comport with First Amendment requirements then it must be narrowly tailored.
A West Virginia case is illustrative of this issue. In Weaver v. Shaffer, 290 S.E.2d 244 (W. Va. 1982), the Civil Service Commission ordered the removal of a deputy sheriff on grounds of unlawful political activity pursuant to statute. The statute at issue stated that no deputy sheriff covered by the provisions of this article shall engage in any political activity of any kind, character or nature whatsoever, except to cast his vote at any election or shall act as an election official in any municipal, county or state election. Weaver, 290 S.E.2d at 245 (quoting W.Va. Code, 7-14-15(a) (1971)). The statute went on to state that violation will result in removal from employment. Id. The removed deputy sheriff had engaged in various activities deemed to be political including being present at the campaign headquarters of a sheriff candidate during an election, attending at least one political dinner and transporting campaign literature. Id. at 245-46. After his removal the deputy sheriff challenged his termination on grounds that the statute denied his right to free political expression because it was vague and impermissibly broad. Id.
In reviewing the statute the court found that,
Historically the problem which statutes such as W.Va.Code, 7-14-15(a) present is that they are so broadly written that they appear to proscribe activity which is protected by the First Amendment to the Constitution of the United States and which, under any set of facts, the government cannot be considered as having a legitimate interest in proscribing. In this regard we do find that W.Va.Code, 7-14-15(a) is overly broad since it would appear to proscribe activities which the Supreme Court of the United States has indicated are protected by the First Amendment even with respect to employees of a classified civil service.
Id. at 246. The West Virginia court then went on to narrowly tailor the statute by proscribing only those activities which the Supreme Court has indicated may constitutionally be proscribed in Letter Carriers. Id. at 248.[3]
Like the statute in Weaver, Section 308 uses the broad term political activities. If this term is not narrowly tailored then the statute will include protected political activity and will impermissibly infringe the First Amendment and run afoul of United States Supreme Court jurisprudence. By restricting the term to include those activities which the Supreme Court has indicated may be constitutionally proscribed the statute is saved and employees are made aware of the type of conduct that is prohibited.
C. Activity Prohibited By Section 308
After interpreting the statute, reviewing the case law, and considering the First Amendment implications, it appears that an employee of the Office of the State Election Commissioner is prohibited from using or seeking to use his authority to control the political action of another person pursuant to the first clause of the statute. Moreover, pursuant to the second clause, an employee is prohibited from engaging in partisan political activities, including, but not limited to: (1) holding a party office; (2) acting as a party paymaster for other party workers; (3) organizing a political party or club; (4) actively participating in fund raising activities for a partisan candidate or political party; (5) becoming a partisan candidate for, or campaigning for, an elective public office; (6) actively managing the campaign of a partisan candidate for public office; (7) initiating or circulating a partisan nominating petition or soliciting votes for a partisan candidate for public office; (8) serving as a delegate, alternate or proxy to a political party convention; (9) soliciting political contributions; (10) doing campaign work; (11) asking other employees to do campaign work or giving referrals to persons who might help in the campaign; (12) receiving and distributing campaign posters in bulk; (13) making campaign speeches; and/or (14) conducting telephone campaigning. Weaver, 290 S.E.2d at 251; Op. Atty Gen. 78-016, 1978 WL 22483, at *3.
If an employee engages in any of the aforementioned activities he has violated the statute and is subject to punishment.
D. Application Of Section 308 To Commissioner Calio
After construing the statute we must now apply it to the facts presented. An examination and analysis of Section 308 in light of Commissioner Calios actions necessitates the conclusion that: 1) Commissioner Calio did not violate the first clause of Section 308 and 2) Commissioner Calios actions do not fall within the conduct proscribed by the second clause of Section 308.
1. Using authority to control another
The first clause of Section 308 prohibits an employee of the Office of the State Election Commissioner from directly or indirectly using or seeking to use his or her authority or official influence to control or modify the political action of another person. In this case Commissioner Calio wrote articles commenting on various political issues. Commissioner Calios byline never included his position as State Election Commissioner. Moreover the fact that he is the State Election Commissioner was hardly ever mentioned within the body of his articles. Further Commissioner Calio never states in his articles that individuals should decide an issue a certain way or vote for a particular candidate. Rather he simply expresses his view on various political subjects. The reader is then free to agree or disagree. Commissioner Calios articles were not an attempt to directly or indirectly use or seek to use his authority or official influence to control or modify the political action of another person. Instead they were a public forum for the expression of his personal opinions.
2. Participating in political activities
The second clause of Section 308 prohibits employees of the Office of the State Election Commissioner from at anytime actively participating in any political activities or campaigns. As stated earlier the political activities referred to in the statute are those political activities that are partisan in nature. In this case Commissioner Calio expressed his personal opinion on public affairs, personalities and matters of public interest. His objective does not appear to be directed toward a partys success.
The Office of Special Counsel for the United States has issued guidelines to federal employees regarding the political activities they may and may not engage in. As stated by the OSC the key to determining whether an employee has engaged in partisan political activity is whether the activity was in concert with a political party or candidate.[4] In this case Commissioner Calios comments do not appear to be this type of partisan political activity. For example in one article Commissioner Calio commented that, Recently our infamous Secretary of State Condoleezza Rice, a possible presidential candidate, (give me a break) appeared before the Senate Foreign Relations Committee . Of all of the comments referred to our attention this comment was the most troubling. But given the time in which it was written and the forum in which it was published, we believe that even this comment was a protected political expression. If, however, Commissioner Calio made this same comment during a Presidential campaign in which Secretary Rice was a candidate for President our conclusion may differ. In that case the balance of interests would arguably weigh in favor of the General Assembly limiting the State Election Commissioners right to public expression.
Moreover while Commissioner Calio is free to comment that, During the controversial election of 2000 in which the U.S. Supreme Court overruled a Florida judge on the controversial recount and ruled in favor of Junior Bush, the credibility of the highest court in the land was hurt; some thought it was no longer an independent court, but a pawn of the political party who appointed justices to their seats. He is not free to draft campaign literature telling citizens to Vote for Candidate Jones. He will appoint independent judges to the bench. The former is an expression of a view on a public issue. The latter is working in concert with a political party or campaign. Thus the latter is partisan while the former is not.
The facts, as presented, do not fall within the confines of the second clause of Section 308. Commissioner Calios articles and commentaries were protected political activity he was expressing his views on political subjects. Commissioner Calio has not violated the mandates of Section 308. Therefore his actions are not prosecutable under the statute.
CONCLUSION
In summary, it is the conclusion of this Office, based on the facts presented, that State Election Commissioner Frank Calios actions of writing articles and commentaries expressing his opinions on various political figures and issues are not prosecutable under Title 15, Section 308 of the Delaware Code. We caution that the issue of whether an employee has engaged or will engage in political activity is very fact based, requiring analysis of the time, place and manner in which the activity occurs. But, after taking all these factors into consideration, it is the finding of this Office that Commissioner Calios newspaper editorials were permissible.
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[1] The substantive difference between Section 301(e) and Section 308 is that Section 301(e) states that the State Election Commissioner cannot at any time participate in any political activities . Section 308 on the other hand states that an employee shall not at anytime actively participate in any political activities. The insertion of the word actively in Section 308 does not seem to substantially alter the meaning of the statute and would not alter the analysis and conclusion of this memorandum.
Note also that there is an issue as to whether Section 308 and its criminal penalties applies to the State Election Commissioner. Section 308 limits the political activities of employees of the Office of the State Election Commissioner. The State Election Commissioner, however, is a gubernatorial appointee who is arguably not an employee of the Office of the State Election Commissioner. Therefore Section 308 may not apply. Given, however, that we do not find that Commissioner Calios actions are proscribed political activity, we leave for another day the issue of the applicability of Section 308 to the State Election Commissioner.
[2] The First Amendment rights and protections are made applicable to Delaware citizens through the Fourteenth Amendment. See, Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 160 (1939)
[3] Note that the court in Weaver affirmed the trial courts finding that the deputy sheriff had engaged in proscribed political activity pursuant to the narrowly tailored construction of the statute.
[4] Political Activity and the Federal Employee in 2002, http://www.osc.gov/documents/hatchact/hatchact2.ppt.