Editor’s note: This is the first of two stories The Frontier will post regarding Mayor G.T. Bynum’s proposal to give city employees, including firefighters and police officers, more freedom to participate in elections for mayor, City Council and city auditor.
Today’s story examines a 2011 ruling by a federal judge that helped set the stage for Bynum’s proposal. On Tuesday, Bynum explains why he supports changing the city charter.
The City Council will hold a special meeting Wednesday to vote on resolutions calling for two more proposed city charter changes to be put on the ballot in November.
One of those proposed charter changes is being pushed by Mayor G.T. Bynum. If approved by voters, it would give municipal employees — including firefighters and police officers — more freedom to participate in municipal elections for mayor, City Council and city auditor.
The existing city charter limits municipal employees from taking an active part in municipal elections “except to vote and privately state a personal opinion.”
Bynum’s proposal would loosen those restrictions and allow municipal employees to participate in partisan and nonpartisan political activities as long as they do so “only during off-duty hours and while not in uniform.”
Bynum has argued that his proposed charter change would essentially put the city in line with state law regarding municipal employees’ involvement in municipal elections.
But anyone interested in understanding the historical significance of Bynum’s proposal would be well served to read U.S. District Judge Gregory Frizzell’s legal opinion regarding cities’ authority to limit the political speech and conduct of its employees.
Despite having been written six years ago, Frizzell’s opinion seems more salient today than ever before, providing a detailed narrative of the history, politics and law surrounding the issue.
Frizzell points out that the citizens of Tulsa, through city charters approved by voters in 1908 and 1989, twice banned classified employees, as well as police officers and firefighters, from participating in campaigns for city elected offices. (The 1908 City Charter banned city employees from involvement in any election campaigns.)
According to Frizzell’s opinion, former Mayor Kathy Taylor’s city attorney, Deirdre Dexter, sent a message to city employees in March 2008 stating that the city would adhere to the state statute that allows municipal employees to participate in municipal elections as long as they were off duty and not in uniform.
Former Mayor Dewey Bartlett came into office in late 2009, without the endorsement of the firefighters union, and in April 2011 issued an executive order reasserting that the only active participation city employees are allowed to have in municipal elections for office is to vote or privately share a personal opinion.
Frizzell’s legal opinion pertains specifically — and only — to a 2011 lawsuit filed by Tulsa Firefighters Local 176 and other parties seeking a preliminary injunction to stop Bartlett from enforcing his executive order. The judge denied the firefighters’ request, finding, among other things, that the plaintiffs had not shown “a likelihood of success on the merits of their claims.”
“For over a century, courts have upheld the constitutionality of regulations curtailing the rights of public employees to engage in certain kinds of political speech,” Frizzell wrote.
The judge’s opinion is clear in stating that the campaigning for municipal elected offices conducted by the Tulsa firefighters union from 2000 to 2011 — as detailed in the litigation – was in violation of the city charter.
Those activities, according to a firefighter’s testimony, included:
- Running phone banks on behalf of candidates
- Paying for and placing campaign signs in yards
- Preparing and mailing campaign literature to areas targeted by candidates or the union
- Going door to door in areas targeted by candidates while wearing T-shirts with the union logo
- In 2006, the firefighters union endorsed then-Mayor Bill LaFortune for re-election and went door to door and placed yard signs in certain areas at the mayor’s request; placed members of the union at the mayor’s campaign rallies; and ran a phone bank inside the union hall to make calls on the mayor’s behalf
“Moreover,” Frizzell wrote, “the City of Tulsa has a legitimate interest in permitting its policymakers to make decisions for the city without fear of political retribution from the city’s own employees and their public employees’ unions.”
Frizzell’s opinion also distinguishes between two state statutes that address what legal rights municipal employees have to participate in municipal elections.
Title 11, Section 22-101.1 states in part that “Any municipal employee may actively participate in partisan and nonpartisan political activities. Provided, the political activity in which the employee participates shall be exercised during off-duty hours and while not in uniform.”
It was this section of the state statutes Dexter referenced in her March 2008 message to city employees. The firefighters union referenced the same statute in challenging Bartlett’s executive order. And — six years later — it is the same language Bynum is encouraging Tulsans to approve as part of his proposed city charter change.
But Frizzell notes that the statute does not apply to all Oklahoma municipalities.
“To the contrary,” the judge wrote, “the statute originally carved out a nonuniform policy applicable only in cities having a population equal to or less than one hundred thousand (100,000) persons, and in cities with a population in excess of one hundred thousand (100,000) persons whose charters did not restrict the political activities of certain municipal employees.”
The city of Tulsa did not fall into either category. It is, instead, a city of more than 100,000 people that has a strong-mayor-council form of government and whose charter does restrict the political activities of certain municipal employees.
And it has language in its charter that is similar to the other state statute cited by Frizzell.
Title 11, Section 123 establishes “different, tighter restrictions on employees in the classified service of statutory strong-mayor-council cities,” Frizzell wrote.
The statute reads in part that “No officer or employee in the classified service of a statutory strong-mayor-council city may actively influence, or actively attempt to influence, or work actively for, the nomination, election or defeat of any candidate for mayor or council member; but this shall not prohibit the ordinary exercise of one’s right as a citizen to express his opinions and to vote.”
Near the close of his 30-page opinion, Frizzell cites case law to support his contention that governments have a legitimate interest in regulating the conduct and speech of its employees. He then lists what those specific interests would be for the city of Tulsa:
— Avoiding the appearance of “practicing political justice,” and the resultant erosion of public confidence;
— Preventing “the rapidly expanding [g]overnment work force,” paid for at public expense, from becoming “a powerful, invincible, and perhaps corrupt political machine” lobbying for increasing percentages of city revenues;
— “Serving the goal that employment and advance in the [g]overnment service not depend on political performance;
— “Making sure that [g]overnment employees [are] free from pressure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their own beliefs.”
Now comes Bynum’s proposed charter change. In an interview with The Frontier on Friday, Bynum said he has read Frizzell’s opinion and would be the last person to question it.
“I’m not arguing with his interpretation of our city charter as it stands right now,” the mayor said. “In fact, I’m entirely accepting his interpretation of our city charter as it stands right now.”
Given Frizzell’s legal opinion, Bynum said, the only way to make the change in the city charter that he would like to see is to have the residents of Tulsa vote on it.
Bynum said this is especially important given that over the past several decades different city administrations have interpreted the charter differently.
“It has been for the last 27 years too inconsistent and too open to interpretation by lawyers that I just want citizens, who we are supposed to be serving here, to tell us what they want us to be doing,” Bynum said. “Of course I have an opinion on which way it ought to be, but I am here to serve them, and I want that debate to be able to be held in making a decision on this.”