Wednesday, April 22, 2015

Of "time theft" and overkill

Here's a thought experiment.

A recent Ernie On Wisconsin column by Ernie Franzen quite rightly questions the decision of the Bureau of Commissioners of Public Lands to ban its handful of employees from working on global warming while on the clock. I wonder if there's more to the story, but the ban does seem like overkill.

The column suggests that it is silly for the state to crack down on "time theft" in this way. I  agree.  these things ought to be handled in less dramatic ways, but let me suggest an even worse example of overreaction to "time theft."

Sending Kelly Rindfleisch to jail for it.

Rindfleisch was charged with felony misconduct in office, i.e., using her public employment in a manner that is inconsistent with her duties to confer a dishonest advantage on another.  The theory was, since she wasn't supposed to be doing political work on state time, she had improperly used her position to benefit the candidate she was working for. There is a statute prohibiting fundraising from state office buildings or during set work hours - itself a form of criminalizing "time theft" - but she wasn't charged with violating it. That would only have been a misdemeanor. (In fact, this is what Darlene Wink was ultimately charged with.)

There seems to be a dispute over whether anyone at the Bureau was currently working on climate change during office hours. Perhaps some might even argue that climate change is relevant to the Bureau's mission. But let's assume that someone was working on the issue and that this falls outside his or her job responsibilities -the Bureau itself says so.

Couldn't you shoehorn this climate change advocacy into the felony misconduct in office statute? Wouldn't that person be using her office - its space, perhaps its equipment and the wages she is paid (time theft!) in a way that is inconsistent with his or her duties  -she is not supposed to be working on climate change - to confer a dishonest advantage on individuals and organizations engaged in advocacy on global warming.?

One might try to distinguish the Rindfleisch case by arguing that fundraising is specifically prohibited by statute while work on climate change is not, but that may actually weaken the case for using the felony misconduct in office statute in this way. In any event, it would not distinguish the caucus scandal prosecutions. There is simply no express statutory prohibition against public employees doing "political work."

There are still lawyerly distinctions that might be drawn between the caucus and Rindfleisch cases and our climate change hypothetical. But cases seem uncomfortably close.

Don't get me wrong. I don't think that Bureau employees working on climate change should be doing the perp walk. I am using them as a further illustration of why aggressive use of vague statutes to punish political activity is problematic.

I don't know that any of this happened. Even if it did, I would be strongly disposed against using broadly worded statutes to criminalize "time theft."

I think the Bureau's resolution was misguided, but at least it didn't start a John Doe.

Cross posted at Purple Wisconsin


Anonymous said...

I think you miss the point. You're arguing that Eau Claire City Council gives an unfair leg up or kick back (crony capitalism) to a particular real estate developer. As they say, working to use tax money to "pick winners and losers", using tax money to put a weighty finger on the scales of the free market. There's no such thing as Time Theft and arguing that is misdirection. I don't think you usually do that,you usually argue pretty straight. This is odd. Also illogical. State, City and Federal employees are paid with tax dollars. They sit at taxpayer purchased desks, use taxpayer purchased phones, computers, paper, electric lighting, the whole she-bang. If such a taxpayer-paid and sustained worker uses their workplace and work time and work resources to assist one particular candidate, that candidate is not participating in the free market, on his/her own merits, but is benefiting mightily from tax payer dollars. It is crony campaigning. The tax dollars are an active part of "picking a winner and loser". In an extremely obvious way. And if the worker's boss (irrelevant is s/he's the candidate in question) has told the worker to do that campaigning on the government clock, that's government mandated winner-picking. Why even have elections then? If government gets involved with choosing itself, there's no point. And there's no freedom. How can you argue for small government and the Libertarian view and not strongly object to tax dollars and bureaucrats intentionally inserting themselves into the Democracy Marketplace? You can't honey, you can't. Doing what Rindfleisch did, it's not legal, it's not ethical, and it's certainly not Libertarian. No government workers are "free" to individuality choose what they do with taxpayer money. They themselves are a purchased resource obligated by virtue of their agreeing to accept employment to act on behalf of taxpayers, not their own wills during work hours. They may not use tax money on personal whim or on direct orders from their boss. It's not "time theft" it's plain old money theft. Their real duties are not getting done while they use top notch government facilities and resources to Crony Campaign up a storm. Picking winners and losers with government money, you hate that - remember?

Rick Esenberg said...

You make a good point about the evils of using tax dollars to influence elections, but you're missing my point.. Fortunately or unfortunately, there is no law that straight forwardly prohibits whatever might be called "political work" on state time (and it might be challenging to draft one). There is a vaguely worded felony misconduct in public office law that sometimes is and sometimes is not used to attack such behavior. My point is not that "its OK" for public employees to do whatever they want. It's that using the criminal law in this way is unfair and susceptible to abuse. I don't have a problem with RIndfleisch being fired. And because I know that it is unlikely that a politician boss would fire an underling for doing political work, I don't have a problem with statutes that clearly delimit what can and cannot be done. That existed in Rindfleish's case but it was a misdemeanor. Prosecutors charged her under a vaguely worded felony statute in order to pressure her to say why they wanted. It's one thing to "strongly object" to something. It's quite another to confer discretion on partisan prosecutors to "pick and choose" who goes to jail for it. To say something ought not to be done is not necessarily to say it should be a crime.