Command staff within the El Paso County Sheriff's Office will have to seek the sheriff's permission before making their political views public, thanks to a recent addition to the office's Policy and Procedure Manual.
"The sheer breadth of the ban is actually startling," says Rebecca Wallace, staff attorney with the American Civil Liberties Union of Colorado. "We think it's plainly unconstitutional on its face."
Sheriff Terry Maketa says that when he joined the sheriff's office back in 1987, the policy banned any and all political activity. That restriction was eventually loosened to allow employees to engage in political activities in their free time, as long as these activities were legal and didn't "result in inefficient or ineffective performance of duty."
However, an incident that occurred during the 2012 campaigns for state Legislature inspired a further amendment. It includes the line: "No appointed member of the Sheriff's staff shall personally or in official capacity endorse or publicly oppose any candidate or issue without notification and approval of the Sheriff." In other words, Maketa is empowered to disallow an endorsement of any kind if he feels it could negatively affect his office.
According to Maketa, "There was an incident where two legislators were running against each other, and both of them had done a lot of work for our office, in terms of carrying legislation. And one of them asked one of my command-staff members if he would support them, and he said, 'Yeah.' Well, that candidate took it as though she could use him as an endorsement on her website."
Maketa says that this employee didn't realize that the candidate would use his name, and professional title, as an endorsement. It caused problems for Maketa, who was working with the candidate's opponent on a bill.
Besides keeping that from happening again, Maketa says this new policy will help keep command staff members — appointed members who oversee departments of the sheriff's operation — out of a situation where they are being pressured for an endorsement. In essence, he says, this policy grants the employee the ability to say, "'No, you can't use my name and title.'"
Regardless of the motives, Wallace calls the policy "a broad prior restraint on what appears to be all political speech."
While she does acknowledge that the courts have upheld the right of law enforcement agencies to restrict their employees' involvement in party politics, she says, "I have not been able to find a single case that allows the limitation in anything other than partisan politics."
The policy's inclusion of issues, she says, is likely unconstitutional.
"It's any conceivable political issue, as far as I can tell," she says. "For a department head who might think that their political views aren't the same as Sheriff Maketa's, it can be pretty intimidating to go and ask him if they can take a public standpoint relating to civil unions, for instance. And that could really deter them from engaging in that core political speech.
"This is a significant overreach by Sheriff Maketa, and it would unlikely withstand a constitutional challenge," she says. "The ACLU would encourage anyone who feels that their speech is limited by this rule, to contact the ACLU and tell us about their experience."
But Maketa doesn't sound worried. "The policy that they cannot get involved in any political activity is statutorily legal," he says, "because they work for an elected official."