Political ads raise questions of police role in campaignsBy DAN TUOHY
New Hampshire Union Leader
October 02. 2016 9:40PM
U.S. Sen. Kelly Ayotte, R-NH, and Democratic Gov. Maggie Hassan have both had campaign ads this year featuring law enforcement officers who sing their praises.
Should police officers, in uniform, be appearing in political ads?
Ayotte, a former New Hampshire attorney general first elected in 2010, said that it is up to each locality and to each individual.
“I don’t know that it’s a role for the attorney general on the political end,” Ayotte said in an interview with the Union Leader.
Both Senate hopefuls say they are thankful for the support of officers.
“Everyone who has appeared in political ads on her behalf has done so in a personal capacity and not representing any law enforcement agency,” Hassan spokesman Meira Bernstein said.
Strafford County Sheriff David Dubois, in a suit, and retired state trooper Mark Mitchell, wearing a green state police windbreaker, appeared in a web ad this summer to promote the governor’s handling of the opioid and heroin epidemic.
Atkinson Police Chief Al Brackett, in uniform, is one of a handful of officers in an Ayotte ad titled, “Law enforcement trusts Kelly Ayotte to support background checks and keep us safe.”
Manchester Police Chief Nick Willard used an official Twitter account to criticize comments made by Executive Councilor Chris Sununu, the Republican candidate for governor, on the day he filed election paperwork. Willard’s boss, Mayor Ted Gatsas, lost to Sununu in the Republican primary last month.
New Hampshire Secretary of State Bill Gardner said his office has not fielded any questions or concerns about officers appearing in endorsements.
“I don’t recall that anyone’s ever brought that up before,” he said. “Are their shirts public? I don’t know.”
David G. Parenteau, executive major for the New Hampshire State Police, said the Division of State Police does have a policy on the books.
“We do have a general policy that prohibits a member to appear in uniform for testimonial or commercial purposes. The state police director may authorize doing so at his discretion. However, we have not authorized any active-duty member to appear in any political ads,” according to Parenteau.
First Amendment issue?
Ayotte, in the interview, referred to it as a First Amendment matter, saying that officers have a right to free speech.
Brian Buonamano, senior assistant attorney general, said the New Hampshire Department of Justice has not offered guidance on the subject of officers appearing in endorsement ads.
“I can say that police officers do not sacrifice their right to freedom of speech by becoming a police officer,” Buonamano emailed in response to a reporter’s question.
New Hampshire state law includes a chapter on “public employee freedom of expression.”
“Notwithstanding any other rule or order to the contrary, a person employed as a public employee in any capacity shall have a full right to publicly discuss and give opinions as an individual on all matters concerning any government entity and its policies,” the law states.
There is a statute on electioneering by public employees, which holds that no public employee “shall electioneer while in the performance of his or her official duties,” and that they “shall not use government property or equipment, including, but not limited to, telephones, facsimile machines, vehicles, and computers, for electioneering.” The law defines “electioneer” as acting in a way that is designed to influence the vote of a voter on any question or office.
New Hampshire Senate Majority Leader Jeb Bradley, a Republican from Wolfeboro and former congressman, said he found that different towns have different policies on endorsements.
“I think people obviously do it,” he said. “Whether it’s appropriate or not, that’s another question.”
Some officers, he recalled, would tell him they supported him, but could not publicly endorse him. Sheriffs are different, in that they are elected to the office.
Talk radio host and commentator Arnie Arnesen, former state representative and past Democratic nominee for governor and Congress, maintains it is wrong for a candidate to ask officers to appear in their campaign ads.
“They should not allow themselves to be political footballs,” she said.
Arnesen said officers need to look apolitical, but she adds that state law may lack guidance on the matter.
“It doesn’t mean they don’t have a right to do it, it’s a question of whether they should,” she said. “Let’s be honest, it’s not your uniform, it’s our uniform.”
The state law on electioneering was last updated, this year, with a bill intended to address applicability of the prohibition, and clarify that the prohibition applies to equipment, not just government property.
A 2010 bill that did not pass, sponsored by state Rep. Dennis Fields, R-Sanbornton, included “uniforms” under the definition of “public resources,” along with paper, printing supplies, computers, email systems, websites and “other means of communication paid for with government funds for governmental purposes.”
Fields, in an interview last month, said he recalled that his 2010 bill was not intended to prohibit police officers from endorsing a candidate. He said it is a protected free speech issue.
Some states say no
Other states have laws that clearly prohibit an officer in uniform from participating in campaigning or political activities, based on a review of statutes posted by the National Conference of State Legislatures. The issue comes up with regularity.
When Pittsburgh Police Chief Cameron McLay spoke at the Democratic National Convention this summer, Fraternal Order of Police President Robert Swartzwelder complained that it was in violation of the municipal code because he appeared in uniform. The chief maintained his speech was not “campaigning,” even though professional campaign speech writers reviewed his remarks, according to the Pittsburgh Post-Gazette.
Last year, Newsday published an editorial after a candidate for district attorney in New York received a police union endorsement and about 10 uniformed officers participated in the event. “It’s against the law for police officers to appear at political campaign events in uniform to endorse candidates, and for good reason. That’s been the law in New York for more than 40 years, and for good reason: having uniformed officers endorse a politician at a campaign event can either give the candidate an aura of support from the government itself or make people afraid to oppose the police choice, which is inappropriate in elective politics.”
The campaign of Republican presidential nominee Donald Trump was given a primer on police endorsement policy this week in Phoenix, Ariz., along with a cease-and-desist letter for on-duty officers appearing in an ad.
As USA Today reported, Phoenix city regulations ban employees from endorsing a candidate in an ad while they are on duty or wearing a uniform.
In the Phoenix case, the officers did not know they were being videotaped, and they did not consent to being in the ad.