Fall has finally arrived. That means you can pull your flannels from the back of the closet, and it means Taylor Swift’s “Encore” to The Life of a Showgirl now fills the airwaves. (Editor’s note: or not. Have you actually listened to this clunker?) Unfortunately, we all know what else fills the airwaves this time of year: election ads. As those ads rain down from Cheyenne to Cody, they tend to spark the same evergreen questions at the local district level about what employees can and can’t do during election season.
Those questions start with the First Amendment, and the cases we yap about during in-services, Pickering v. Board of Education and Garcetti v. Ceballos, carry extra weight this time of year. The First Amendment generally protects employees who speak as private citizens on matters of public concern, like senate candidates or ballot questions, on their own time and away from their job duties. When employees speak as part of their official duties or use district time or resources, the district can direct or restrict that speech. Even protected speech has limits. When private speech causes issues at school, courts weigh an employee’s interest in speaking against the district’s interest in smooth operations, and if the speech seriously damages working relationships or undercuts the employee’s effectiveness, the district’s interests can win out, even for off-duty speech. That balancing test makes this a tricky area (see the recent news of teachers winning cases against their former employers after posting about Charlie Kirk), so resist the urge to react quickly and loop in legal counsel before taking any action.
Wyoming law also plays a role this time of year, though not always the one people expect. Under Wyo. Stat. Ann. § 9-13-105(b), part of the Wyoming Ethics and Disclosure Act, public officials cannot use public funds, time, personnel, facilities, or equipment for political or campaign activity unless the law authorizes the use, or the use is properly incidental to an authorized activity and the official reimburses any added cost. The Act defines “public official” to include anyone elected to local office, which covers school board trustees. With trustee seats on the November ballot, a trustee seeking reelection cannot campaign through district email, the district website, or staff time. The stakes are real; a violation is a misdemeanor carrying a fine of up to $1,000 and gives cause for removal from office.
Interestingly, the Act’s definition of “public employee” reaches only a short list of senior state employees, like department directors. It does not reach teachers, administrators, or other district staff. That doesn’t open the district’s supply closet to campaigners. Wyo. Stat. Ann. § 22-25-115 bars written campaign advertising on any real or personal property of a political subdivision, though a school board may permit it through time, place, and manner rules that give opposing views equal access. Unless your board adopts such rules, candidate flyers stay off the staff lounge bulletin board and bumper stickers stay off the activity bus. Beyond that, board policy does the heavy lifting. Make sure your policies bar campaigning on work time and with district email, computers, phones, vehicles, paper, and school-affiliated social media accounts.
The same caution applies when your district has a bond election on the ballot. Keep district communications factual, because the line between informing and advocating can be thin. A fact sheet on what a bond would fund is one thing; a flyer urging patrons to “Vote Yes for Our Kids” is another.
Certified staff face one more layer. The Wyoming Professional Teaching Standards Board (“PTSB”) may revoke or suspend certification for incompetency, immorality and other reprehensible conduct, or gross neglect of duty. Wyo. Stat. Ann. § 21-2-802(c). The PTSB’s Code of Conduct, while not an independent basis for discipline, directs educators to use school computers only for school purposes and to keep their personal and professional online lives separate. That means a teacher’s yard sign is their own business, but a campaign pitch during class or a candidate flyer run off on the school copier could draw scrutiny from both the district and the PTSB.
To help your district gear up for the season, KSB has created a one-page guide that outlines the dos and don’ts for employees during election season, covering the First Amendment, the Wyoming Ethics and Disclosure Act, Wyo. Stat. Ann. § 22-25-115, the PTSB Code of Conduct, and policy considerations. If you want to purchase the guide, reach out to us at ksb@ksbschoollaw.com.