With as many as five statewide ballot issues, numerous local issues, a Presidential election, Congressional races, a special election for Attorney General, and Ohio Supreme Court races at stake, the 2008 Ohio election is shaping up to be one of our most contentious elections yet. More than ever, Ohio employers are being asked to provide financial support and assist with education and voter outreach efforts. And, because of the importance of this election to Ohio businesses, many corporations are looking for legal ways to get involved.
Both state and federal law strictly prohibit the use of corporate funds to support partisan political efforts. However, there are a number of notable exceptions to this general prohibition that allow Ohio employers to play an important role in the electoral process.
One such exception allows a corporation to use its funds or property to support or oppose a ballot issue. In addition to being permitted to provide unlimited monetary contributions, corporations may also provide indirect support (called “in kind” contributions), such as running ads in a local newspaper, sponsoring a radio spot, or creating and distributing yard signs or posters. With respect to a company’s employees, it is permissible to, for example:
- Allow employees to help with a ballot issue campaign on company time;
- Educate employees about ballot issues; and
- Ask employees to contribute to a ballot issue committee.
With respect to such activities, however, employers should be mindful of the following legal and practical considerations:
- Avoid Partisan Political Material. To avoid concerns about violating the ban on corporate contributions for partisan purposes, all materials should be strictly non-partisan. Any reference to a candidate or party should be avoided, or at a minimum, discussed with legal counsel first.
- Don’t Use Pay Envelopes for Messages. Ohio law prohibits an employer from printing on pay envelopes any statements intended or calculated to influence the political activity of employees.
- Follow Internal Policies. Any communications about ballot issues in the workplace should be consistent with company nonsolicitation or e-mail policies or any other applicable company policies. In addition to compliance with internal policies, employers should be wary of the precedent being set and strive to remain consistent in applying policies.
- Use Proper Disclaimers. If an employer issues a flyer, e-mail or other message about a ballot issue, that publication must include, in a conspicuous place, a proper disclaimer. Usually, but not always, the ballot issues committee’s disclaimer is appropriate (e.g., who has paid for the message).
- Be Accurate. Falsely identifying the source of a statement, issuing statements under the name of another without authorization, or falsely listing an endorsement are all violations of campaign finance law. Likewise, publishing a false statement, either knowingly or recklessly, is a violation of Ohio election laws and could result in an Elections Commission complaint against the corporation.
- Don’t Interfere With Volunteer Activity. Employees should be free to voluntarily participate in the political process. You are not required, however, to allow them to use corporate time or resources to do so. If you do, the activity could constitute in-kind contributions which must be reported. Moreover, if you grant vacation or other leave to employees wishing to volunteer for a committee, you should apply this policy equally to all employees regardless of which side of this issue the employee supports.
- Don’t Make Threats or Coercive Statements. Do not coerce, entice or threaten any employee or other potential voter or donor to vote in a certain manner or make a contribution.
- Election Day. R.C. 3599.06 prohibits an employer from interfering with an employee on Election Day. Employees must be given a “reasonable amount of time to vote on Election Day.” This does not necessarily mean that the employee must be given paid time off from work to vote or be given the entire day to vote. Because polls are open for an extended period of time, most employees should be able to vote before or after their regular shift. However, employers who grant flexibility or even paid time off to vote should apply the policy consistently to all employees.
- Report Expenditures. Corporations making contributions (monetary or in kind) to a ballot issue committee must report those contributions to the Ohio Secretary of State, for a statewide issue, or to the county board of elections, for a local issue. Reports must be submitted on Form 30-B-1, available on the Secretary of State’s website.
Employers who follow the rules outlined above, and apply company policies fairly and consistently, can play a significant role in ballot issues. The guidance outlined above cannot substitute for the advice of counsel, and employers are encouraged to talk with their attorneys about any questions that may arise.