HARMON CURRAN NONPROFIT LAW BLOG

2020 is finally here, and the campaign season is heating up. Many of our clients serve the public good and seek to make change in their communities. Therefore, it makes sense that from time to time their employees are moved to seek public office. Here are our top ten tips for 501(c)(3)s to consider if an employee runs for office.

1. Provide no material support. 501(c)(3) organizations are prohibited from intervening in any campaigns for public office. This prohibition means that none of the organization’s resources can be used for the employee’s campaign, including for things such as computers, phones, office space, or staff time. The employee may not use lists and contacts from the nonprofit for fundraising, volunteer recruitment, or any other campaign activity. The employee may continue to work full time but must continue to fulfill all of their job duties and responsibilities.
2. Apply employment policies consistently. The employee must continue to follow all of the organization’s employment policies. They may use paid leave to take time off for their campaign, or if permitted under the organization’s policies, shift to a part-time schedule or take a leave of absence. As long as the employee remains employed by the organization, they must be subject to the same policies as any other employee, and not get special treatment to accommodate their campaign.
3. Be careful with titles and identification. The employee may use the name of the organization for identification purposes (for example, explaining their relevant biography), but may not make any suggestion that the organization is supporting the employee’s candidacy. In general, the employee should clarify that the use of the title is for identification purposes only and that as a 501(c)(3) organization, the organization does not endorse candidates. This differentiation is especially important for more senior staff who are likely to be perceived as representatives of the organization.
4. Avoid public speaking opportunities. The organization should avoid providing opportunities to the employee who is a candidate to speak or otherwise lift up their public presence, especially in front of the relevant electorate. The specific public appearances to be avoided may be evaluated on a case-by-case basis, but in general, if someone else can be the public face of the organization, they should be. This also includes providing opportunities for publication (for example, op-eds). Under no circumstances should the employee ever appear at an event as both a candidate and representative of the organization.
5. Remove the employee from decisions that could help the campaign. The employee who is a candidate should not participate in decisions about public policy, public communications, or other activities that could advantage or disadvantage their campaign.
6. Avoid voter participation activities in the relevant district. Even if the employee is not involved in the decision to engage, any efforts by the organization to do voter registration, nonpartisan get-out-the-vote activities, or voter education in the relevant geography could be perceived as an effort to support the employee’s campaign. If these activities are a core part of the organization’s work, the candidate-employee should at least be screened from any information or decisions about this work, and it would be best if they can take a leave of absence to avoid the appearance that they are working together with the organization for electoral purposes.
7. Protect other employees from pressure to support the campaign. Be cautious that other employees do not feel pressured to participate (even as a volunteer) on the employee’s campaign. The risk of exerting pressure on other staff is obviously more of a concern if the employee is a manager or senior staff person and needs to be assessed on a case-by-case basis, but in any case all staff should be reminded that any campaign work must take place on their own time, and they should be assured that whether they choose to support any candidate or not will not affect their employment.
8. A former employee may be able serve as a contractor. If the employee permanently resigns in order to seek public office, it may be permissible for the organization to retain the individual as an independent contractor to provide services that are needed by the organization (for example, consulting services based on the former employee’s institutional knowledge). It is important, however, to make sure that the person does qualify to be treated as a contractor rather than an employee under both the applicable federal and state standards, which requires an assessment of the services and how they will be provided; especially when an organization pays the same person as both a 1099 consultant and W-2 employee in the same year, the IRS may scrutinize the relationship to ensure the worker is properly classified.
9. Agree and document expectations. As soon as the organization knows that the employee is considering seeking public office, the organization should document in writing expectations like the ones described here.
10. Watch for other conflicts of interest. While most of these tips apply to employees, be aware that conflicts of interest can also arise when a board member or a family member of a current employee runs for office. It is equally important in those circumstances that the 501(c)(3) organization not engage in prohibited electioneering or otherwise accidentally make a prohibited corporate contribution.

Many nonprofits have seen their employees run for office and have successfully navigated the challenges that arise. These rules are largely suggestions for handling this situation, and organizations that find some of them to be too burdensome may find alternative ways to maintain necessary separation between the organization and personal political activities.