Herbster campaign says it is pulling law enforcement ad over legal questions - Lincoln Journal Star
OMAHA -- Charles Herbster's campaign said it pulled a TV ad featuring law enforcement officials, amid concerns that the ad may have violated state law.
Nebraska law appears to prohibit sheriffs from campaigning for candidates while in uniform — but three elected sheriffs and a captain wore their uniforms and badges while endorsing the Republican gubernatorial candidate, who is considered a frontrunner in the race to replace Gov. Pete Ricketts.
The World-Herald reached out to Herbster's campaign about the apparent violation Tuesday morning. Spokesperson Emily Novotny responded that, while the campaign does not believe the ad violates state law, they took it off the air.
No taxpayer funds were used in the making or airing of the ad, she said.
"Nebraska Sheriffs are elected officials and have earned the right to proudly wear their uniforms and, as elected leaders, to have a voice on important matters and issues," she said. "We understand that some have raised concerns, and out of respect for the sheriffs, Herbster for Nebraska has pulled the advertisement from the air. We remain grateful for the outpouring of support from law enforcement across that state, and we proudly back the blue."
The campaign said they pulled the ad on Thursday.
In the ad, Seward County Sheriff Michael Vance, York County Sheriff Paul Vrbka and Lincoln County Sheriff Jerome Kramer all appear in uniform. So does Capt. Josh Gillespie from York County. Captains are appointed, not elected.
Former Nebraska State Patrol Col. Tom Nesbitt is the only person who appears in street clothes. They all say lines that, taken together, amount to them vouching for Herbster’s support of law enforcement.
“I’m voting for Charles W. Herbster,” the four uniformed officials say in unison at the ad’s conclusion.
The World-Herald attempted to reach all three sheriffs Monday afternoon and Tuesday morning and had not received a response as of midday Tuesday.
Buffalo County Sheriff Neil Miller, who is president of the Nebraska Sheriff's Association, said the association has not and will not endorse a candidate for governor or other offices with multiple candidates. He referred the World-Herald to the individual sheriffs to answer any questions about their appearance in the ad.
Asked for his opinion whether it’s OK for sheriffs to appear in uniform in an ad endorsing a candidate, Frank Daley, the executive director of the Nebraska Accountability and Disclosure Commission, pointed to an advisory opinion from 1994 as the commission’s official position.
The commission in that opinion concluded that an elected and serving county sheriff couldn’t engage in "overt and deliberate campaign activities" while wearing their sheriff’s uniform. But they could use photos of themselves in uniform for campaign literature, it found, and respond to the public's questions while in uniform and on duty.
Relevant state law has changed since 1994. However, Daley said current law essentially codified things from some of the commission’s opinions. There’s no more recent opinion that applies to that current law.
University of Nebraska-Lincoln law professor Kyle Langvardt said the changes seemed to make the law more explicit.
Current law states that public officials and employees can’t use or authorize the use of public resources for the purpose of campaigning for or against a candidate or ballot question, with some exceptions.
Back in 1994, the Nebraska Accountability and Disclosure Commission found that a sheriff's uniform was a public resource.
Another Nebraska law states that, while no employee of the state or a political subdivision (like a county) can be banned for participating in political activities outside of office hours or while performing their official duties, they can’t “engage in any political activity while wearing a uniform required by the state or any political subdivision thereof.”
Those statutes seem “very straightforwardly to prohibit this kind of campaigning in uniform,” Langvardt said.
That's especially clear in the case of the captain, according to Langvardt. There's a little more ambiguity when it comes to sheriffs, he said, but the law still appears to prohibit them from campaigning in uniform.
Not all states have laws that would come down the same way on this question, he said. But "every state does have some kind of law that restricts the use of ... public resources in a campaign, and I think that when police departments are involved in campaigning, you know, that that feels especially dangerous or sensitive.
"It shouldn't be surprising that the law would try to restrain the use of the badge or a police officer's uniform in campaigning for a candidate."
You don't want to create the impression that the government or the police department, specifically, is endorsing a candidate and putting a "huge thumb on the scale," he said. And regardless of intent, it can create that appearance.
Law enforcement officers show up in at least one other ad for a candidate for statewide office this election season: an ad for state Sen. Mike Hilgers of Lincoln, who’s running for attorney general.
That commercial features footage of Hilgers talking to a group of apparent law enforcement officials. They’re wearing matching polo shirts, not uniforms. A campaign spokesperson said that decision was made by the Omaha Police Officers Association.
Anthony Conner, president of the association, confirmed it was his decision. He said he always wants to keep a clear distinction between when he is wearing a uniform and representing the police chief’s vision and when he is representing the union and can speak politically.
2022 candidates for Nebraska governor
source: https://journalstar.com/news/local/herbster-campaign-says-it-is-pulling-law-enforcement-ad-over-legal-questions/article_e12d1b76-a1d5-5c14-b5cf-458a7bdb12c2.html
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