Leading Liberty First I have always respectfully questioned our government. I have sought the truth and demanded full transparency in my efforts. I’ve included this and hold myself accountable to this same maxim as I actively campaign to be the next elected Treasurer of El Paso County. No public servant or those who serve under such should be exempt from being questioned by the people to whom they are sworn to serve.
A few months ago I became aware of two policies in-force at the El Paso County Sheriff’s Office: General Rules of Conduct Policy 313, #39 Political Activities Allowed, and Rank Structure and Responsibility Policy 105 – F. #2 Command and Staff Personnel.
When you read the policies, make sure to read between the lines and understand clearly their intent. Then you will most likely question as I have, why the Sheriff’s Office, the last bastion and line of defense for our Constitution would enforce such policies. In my humble opinion, these two policies when combined strip our appointed Sheriff staff of their 1st Amendment rights to speak freely, including politically while they are “off –duty”. Why? Because based on the legal interpretation of the Sheriff’s In-house Council, these staff members are never off-duty. Yes, they are considered to be on-duty, 24/7.
Realizing this and suspecting an error in the policies, I corresponded with Amy Folsom our County Attorney, who referred my query to the Sheriff’s Office In-House Attorney, Charles Greenlee.
Here are the emails:
I would greatly appreciate your legal interpretation of an employee policy within the Sheriff's office that has me quite concerned.
Policy 313, Item 39: Political Activities Allowed
The last sentence states, ...without notification and approval of the Sheriff.
My interpretation is that the Sheriff is violating the rights of those employed by his office when they participate in political activities, campaigns and such.
Those words in this policy are an infringement on the first amendment rights of the employees when they are off duty. When is their time their own? If never, then we no longer live in a free society.
Am I wrong? What's your professional interpretation?
I look forward to your response.
Mr. Charles Greenlee, in house counsel for the Sheriff’s office, will be responding to your questions. Thanks again for your patience.
Dear Mr. Kelly:
While I represent and advise the Sheriff and the Sheriff’s Office, and not members of the public, Sheriff Maketa has asked me to respond to your question as to the legality of El Paso County Sheriff’s Office Policy 313, paragraph IV.9., which I reproduce here, in its entirety:
39. POLITICAL ACTIVITIES ALLOWED:
Employees or members of the Sheriff's Office may participate in political activities and political campaigns while they are off duty, so long as these activities are lawful and do not result in inefficient or ineffective performance of duty, or reflect discredit upon the Office of the Sheriff. Members, excluding the Sheriff, will not engage in political activity of any kind while on duty. 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.
By its own terms, the portion of the policy you questioned is limited to “appointed members”—that is, not line-level deputies and sergeants, but lieutenants and above (the Sheriff’s Staff). As I am certain your own research will show, because members of the Sheriff’s Staff engage in the policy making and policy implementation of the Sheriff’s Office, the law recognizes a sheriff’s ability to regulate their political participation, given their importance in furthering the political mission of the office. The Sheriff posed this political patronage question regarding candidate association to several attorneys, myself included, and we all agreed that the policy, because it is restricted to the political associations of the Sheriff’s Staff, is supportable under the law.
I note here that five Staff members have made the proper notification and are supporting the candidate of their choosing. Numerous employees below the rank of lieutenant are supporting candidates of their choice and were not required to notify the Sheriff.
Policy 313 and other policies contain numerous instances where the Sheriff can permissibly place restrictions on his employees’ behavior, both on and off duty, with the goal of furthering the effectiveness of the Sheriff’s Office in its public mission. Off-duty alcohol and substance use is one of them. Forbidding off-duty associations with known criminals is another. Obtaining permission for off-duty employment (Policy 328) is another, as the effect of the extra work hours on the employee’s on duty performance may be a consideration, and conflicts of interest are, of course, to be avoided.
Charles C. Greenlee
El Paso County Sheriff's Office
Thanks for your in-depth response to my query. I'm clear on the issue of appointed staff and I thank you for that clarification. However I’m still not clear on this policy or its purpose. I'm hoping you can remedy this for me as I try to garner a clear and concise understanding of the policy in question.
You stated in your response: The Sheriff posed this political patronage question regarding candidate association to several attorneys, myself included, and we all agreed that the policy, because it is restricted to the political associations of the Sheriff’s Staff, is supportable under the law.
Can you share with me which State or Federal Statute supports your findings?
Can you respond to my earlier question as to when an appointed staff member of the Sheriff's office time becomes their own?
Do such appointed members ever enjoy their "own" time to exercise their unalienable rights guaranteed by the Colorado and US Constitution as well as by our creator?
I look forward to your response in helping me to clearly understand the policy and its supporting law(s).
It has been more than a week since I sent my request for clarification and questions evoked by your epistle on the policy question at hand.
I respectfully ask for your response in my search of clarification and the true legal foundation to my concerns.
As I told you in my e-mail of December 6, I represent the Sheriff. My fiduciary duty is to the Sheriff, as my client. It is not to members of the general public. Therefore, it cannot be to you. I cannot and will not give you legal advice. Respectfully, and to be clear, you and I have no attorney-client relationship.
At my client's request, I responded to you more than adequately on December 6. Please hire an attorney of your own choosing if you have questions.
Since my December 6 e-mail, we have had one of the most respected employment law firms in the state review the policy. It agrees with the rest of us: the policy is legal.
I will not respond further to your inquiries.
Charles C. Greenlee
El Paso County Sheriff's Office
As you can see with the above exchanges, it is quite clear that my questions have not been answered and that this citizen is obviously not worthy of receiving an honest answer. Two key questions: One, regarding when an appointed member’s time is their own and more importantly, what statutes were used to support the policies? Those questions go unanswered, but even worse; the government goes silent and chooses to no longer correspond.
This story is still in active progress. More to come….