Oregon Advisory Opinions March 01, 1977: OAG 77-24 (March 1, 1977)

OAG 77-24.

We have been asked to amplify our Opinion No. 7396 (38 Op Atty Gen 526, January 26, 1977) on the basis of a more detailed statement of the question.

ORS 260.432(2) provides that

"No public employe shall . . . aid or promote any political committee or the nomination or election of any person to public office while on the job during working hours. . . ."

Subsection (3) of the statute requires that every "public employer" (defined as meaning the state, any state agency or state institution, a city, county or other political subdivision) post "in a conspicuous place" a notice to employes including the language of subsection (2), followed by these words:

"It is therefore the policy of the state and of your public employer that you may engage in political activity except to the extent prohibited by state law when on the job during working hours."

ORS 260.432(2) supra , controlling here, was enacted as section 3 of ch 530, Oregon Laws 1967, in lieu of former ORS 260.230 which had been adopted by the voters in June, 1908 and provided:

"No holder of a public position or office other than an office filled by the voters, shall pay or contribute to aid or promote the nomination or election of any other person to public office. . . ."

It is obvious that the change in law was intended to give public employes some opportunity to participate in political activity. Yet that activity is limited to a degree. It is prohibited during any period which meets both of the following criteria: (1) the employe is on the job, and (2) the time is during working hours.

A statement before the Senate Committee on Elections, May 1, 1967 indicates that what was sought to be avoided was a situation where:

"In effect, the taxpayer would be under-writing a part of the campaign costs of an incumbent."

"During working hours," the phrase used in the statute, is a familiar one and has been held simply to mean "usual working hours." Binney v. Phoenix Cotton Manufacturing Co ., 128 Mass 496, 499 (1880).

"On the job," the other condition which must be met in order for political activity to be prohibited, is not in our opinion changed from its ordinary meaning by the fact that an employe is "on-call" 24 hours a day. In Welsh v. Aetna Casualty & Surety Co ., 61 Ga App 635, 7 SE 2d 85, 86 (1940), the court said:

"It is immaterial that the employee here was subject to call at all hours of the day. . . . While he was 'off the job' he cannot be said to be 'on the job' because subject to special call. . . ."

The legislature in specifying "on the job during working hours" must have recognized, if the plain meaning of the words is followed, that a public employe may be on the job sometimes not during working hours and that there may be working hours for a public employe when he is not on the job.

We conclude it was the intention of the legislature in 1967 to remove any inhibition on political activity by public employes except where it would be engaged in at public expense.

Thus, where it is established that during working hours an employe is entitled to, for instance, one or more "coffee breaks," it would not be unlawful for the employe to use part of such time to run an errand for a candidate or perform

some other political task. Where an employe is called upon after hours to, say, prepare an office report which is unexpectedly needed the following morning, it similarly would not be unlawful for him to alleviate the tedium by performing some political task such as scheduling with someone the next day's itinerary for a candidate.

We believe, however, that one limitation should be pointed out as implicit in the purpose of the 1967 legislation. Where an employe is being specially paid on the basis of time spent on after-hour work, such time compensated for would be "working hours" during which of course he is "on the job" and political activity would then be prohibited.