A modification to the political activity section of the Crestwood employee handbook was tentatively approved last week by the Board of Aldermen.
The board voted 5-2 July 27 on the first reading of an ordinance modifying three sections of the Civil Service Rules and Regulations.
Aldermen Darryl Wallach of Ward 1 and Paul Duchild of Ward 3 were opposed, and Ward 3 Alderman Jerry Miguel abstained. Final approval of the measure will be considered at the next board meeting as a motion for the bill’s second reading was not unanimously approved.
If approved, the ordinance would modify Crestwood’s layoff and drug policy for employees. It also would eliminate the current language in the civil service rules’ section on employee political activity and replace it with the Crestwood Charter’s language on political activity.
City Attorney Rob Golterman has said the current civil service rules’ language on political activity may conflict with “one’s constitutional rights to participate in the political process.” He has recommended the board copy the charter’s “broad” language on employee political activity into both the civil service rules and the city’s memorandum of understanding with Local 2665 of the International Association of Fire Fighters to make all three documents consistent. From there, the board could draft additional “guidance” about what employees can and can’t do politically, Golterman has said.
The charter states, in part, “No city employee shall solicit any contribution for the campaign fund of any candidate for Crestwood city office or take part in the political campaign of any candidate for Crestwood city office. All employees may exercise their right as private citizens to express opinions and if a qualified voter in Crestwood, to sign a nominating petition for any city candidate and to vote in any city election …”
The civil service rules currently state, “Employees of the city of Crestwood are encouraged to exercise their right to vote, but no employee shall make use of city supplies, uniforms, logos, time or equipment to aid a political candidate, political party or political cause, or use a city position to persuade, coerce or intimidate any person in the interest of a political candidate, political party or political cause.
“City employees may not participate in, or assist any candidate for, elections to city office except by individual ballot. Any employee may, however, participate or contribute to the election or appointment of public officials to offices outside the political jurisdiction of the city of Crestwood.”
Aldermen on June 22 voted to have an ordinance drafted to approve a new, three-year MOU with Local 2665. While the MOU and civil service rules are separate documents, the new MOU at several points references sections in the civil service rules — including the section on political activity. Both Golterman and Kurt Becker, a Local 2665 vice president, have said the union is satisfied with all proposed civil service rules modifications and would ask to reopen negotiations with the city if the board amended or rejected any of them.
But some aldermen believe the charter’s language is too broad and could be interpreted to allow employees to politic in Crest-wood as private citizens. While Becker told the board June 22 that federal law gives municipal employees the right, as private citizens, to be politically active, Miguel contended last week that allowing them to do so could prove problematic for the city.
He noted the current MOU, negotiated in 2006, contains the same language regarding political activity as the first paragraph within the civil service rules, but does not include the second paragraph. While that second paragraph was in previous agreements, City Administrator Jim Eckrich told Miguel the union requested it be removed during 2006 negotiations, and the city’s negotiating team agreed.
Miguel also questioned last week why the city attorney did not have an issue with the current civil service rules’ language on political activity when the document was reviewed extensively by the Civil Service Board in 2006 and 2007.
Golterman said he “did not make any suggested wholesale revisions at that time.”
He added, “I think I was simply looking at what was proposed and didn’t have any problems with it at that time. But I didn’t undertake a separate review of the language in as much detail as I have more recently.”
That separate review began a year to 18 months ago, Golterman said.
Miguel asked, “Was this something that you initiated and did yourself? Or did you have the approval of the mayor or the city administrator?”
Golterman replied, “Very rarely would I just undertake work on my own. I’m sure that the mayor and/or city administrator were aware of my work … I’m sure that this was being undertaken, like many other things, for the city.”
“So you had direction or guidance either from the mayor or city administrator or both?” Miguel said. “I assume they were both in the loop?”
Golterman said, “Again, Alderman Miguel — you’d make a good cross-examiner — but I don’t know if I was given direction or guidance. I think they were aware that I was looking into the language because I had identified potential concerns.
“So I wasn’t told what to include or how to include it, or how to proceed. I just did my best in my judgment to make sure that we’d have the best possible language …,” he added, noting he thought using the charter’s language was the way to do it. “And if that was a bad idea, then the board will certainly disagree with these changes and move on. I mean … no one’s going to lose sleep over it.”
Miguel said, “Well it sounds like you’re the individual that … has the problem with the language. But I trust you’re aware that language has been in the civil service rules since 1985.”
“I’m sure that it has,” Golterman said.
“So, for 25 years we have had the language, and it has never been challenged until the past year and a half?” Miguel said.
“I’m not aware of it ever being challenged,” Golterman replied. “I’m certain that there are things in the code book that have been on the books for 50 years that are probably not lawful, but haven’t been challenged.”
Miguel later asked, “Is there conflicting language between the civil service rules and the charter? To me the language is complementary. And the charter is the broad document. And what we do every time we pass an ordinance is, generally, make the language more restrictive. So it seems to me that what the civil service rules are doing are providing the guidance that you’ve noted, that you’re suggesting.
“So … to me, allowing employees to campaign for political causes or elected officials is opening the doors to liabilities or potential lawsuits further down the line. And to me that’s opening Pandora’s box.”
“Under the charter, Alderman Miguel, they can’t do that, OK?” Golterman said. “They can’t take part in the political campaign of any candidate for Crestwood city office. They can’t take part.”
“What about … tax issues?” Miguel asked.
“Tax issues may be different,” Golterman said.
“Exactly,” Miguel said, and later added, “Local (2665) wins by eliminating the civil service language. Eliminating the civil service language eliminates whatever that adds to the charter. So for them it’s a huge win, and that’s what I fear opens the door.”
Martha Duchild, who was on the Civil Service Board when it undertook the review of the rules in 2006 and 2007, said last week while Golterman now believes the civil service rules’ political activity section could infringe upon an employee’s constitutional rights as a private citizen, he did not have a problem with it during the document’s review.
Minutes from a Jan. 30, 2007, board work session on proposed revisions to the civil service rules state, “Alderman (Gregg) Roby asked the city attorney if the document is in agreement with all federal laws and legislation. Rob Golterman, city attorney, stated that it does and that it is also in agreement with the city of Crestwood’s charter.”
“And at that time, not a single person at that work session brought up any issues about the political activity section,” Martha Duchild told Golterman at last week’s meeting. “And if it’s your contention now that these changes are being done because of a violation of First Amendment rights, I would think that would’ve been a huge red flag, that that would’ve been an obvious point to catch — that we’re violating the First Amendment rights by having the phrase ‘may not participate except by individual ballot.’ But nobody said anything, including you …
“Is it a violation or is it not? Is it consistent with the charter or is it not? You’re saying two different things within the span of two years. And I think the board is owed an explanation of which opinion do you stand behind. Because you were asked to review this document, the civil service rules, on its own, in detail in 2007. The only reason things are changing in 2009 is because this is being looked at through the lens of the negotiations with the firefighters’ union. So before the board can take a vote on this issue, I think you need to clarify your advice. Are you going to stick with the advice you gave in 2007 or the advice you’re giving in 2009?”
“Fortunately, Mrs. Duchild, I don’t stop learning, OK?” Golterman replied. “Fortunately I’m open to enhancing my legal abilities. And fortunately I continue to educate myself in the area of municipal law and constitutional law, and I don’t close my mind off. So occasionally I become smarter and more educated, and that may have been the case here. And if the board wants me to provide an explanation, I’d be happy to do so. Whether you think I owe the board an explanation, I really don’t care.”