OPINION NUMBER - 051

ADOPTED - 1982/09/10

SUBJECT

REQUESTED BY: John F. Cole, 250 Mohawk, #4, Syracuse, NE 68446

ANALYSIS:

Dear Mr. Cole:

In response to the letter of your attorney, Alan M. Wood, dated July 23, 1982, requesting an advisory opinion and in view of the questions considered at the time of your appearance before the Commission on August 27, 1982, be advised of the following:

(A) A policeman's uniform may not be worn while engaging in deliberate political campaign activity such as distributing campaign materials.

(B) Deliberate political campaign activities may not be conducted while a police officer is engaged in the performance of his duties.

(C) Use of one's police uniform in campaign photographs is permissible.

(D) A police office may engage in political campaign activity while on call but not after notifying his dispatcher that he is on duty or when otherwise on duty.

The statutory provisions involved in the foregoing determinations are the following:

Section 49-14,101(4). "No public official or public employee shall use personnel, resources, property, or funds under that individual's official care and control, other than in accordance with prescribed constitutional, statutory, and regulatory procedures, or use such items, other than compensation provided by law, for personal financial gain."

And, Section 23-3001, which provides, among other matters, that no employee of the state or any political subdivision thereof shall be prohibited from participating in political activities except during office hours or when otherwise engaged in the performance of his or her official duties, and no such employee shall engage in any political activity while wearing a uniform required by the state or any political subdivision thereof.

The Commission recognizes that many so-called political activities may occur while a police officer is wearing his uniform such as mere discussions of politics and, therefore, takes the position that Section 49-14,101(4) is not violated unless such political activity is overt and deliberate such as distributing campaign materials or soliciting campaign funds as distinguished from exercising First Amendment rights of free speech and assembly.

The Commission views your status of being on call as different and distinct from being on duty and, therefore, takes the position that while on call you would not be prohibited from engaging even in deliberate political campaign activity so long as you are not doing so in uniform.

As to campaign photographs of a candidate in uniform, the Commission takes the position that since Section 23-3001 does not prohibit such use, such use is not a violation of Section 49-14,101(4).