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Howard's own rules curb political activity while in uniform

For an event teeming with political ideology, Erie County Sheriff Timothy Howard chose to make his speech in uniform, displaying his stars and a badge.

Now, some citizens want the county Board of Ethics to rebuke Howard. And there is no shortage of opinions on what he did.

“I wouldn’t have done it,” former Erie County Sheriff Thomas F. Higgins said.

Higgins' rule of thumb while in office was to wear civilian clothes, not his uniform, to political events.

“To me, it’s common sense," he said.

Aside from common sense, written rules guide police officials and sheriffs on when they may wear their law enforcement uniforms.

Howard appeared to rub against the grain of his own rules last Saturday when he appeared at the pro-President Trump rally in official garb.

[Erie County Sheriff Timothy Howard's rules  of conduct]

Under rules Howard laid down, Sheriff’s Office employees can enter the political arena. They can go to rallies, pass petitions, openly support or oppose candidates and address political gatherings — “as a private citizen.”

But he does not allow them to engage in activities that would create conflicts of interest. And mirroring a section of the State Election Law, Howard bars his employees from using their “official capacity” to influence an election.

Three years ago, the State Elections Board described one forbidden use of “official capacity”: Endorsing a political candidate while in a police uniform. Doing so makes an officer guilty of a misdemeanor.

“No one could question that a police officer in uniform is displaying official authority,” the Elections Board said in an opinion issued in 2014. “The use of the uniform as a prop adds the weight of the police office to the endorsement.”

Was Howard “endorsing” a candidate Saturday when he wore his Sheriff’s Office blues to a gathering welcoming “anyone supporting President Trump?”

Supporters rally for Trump in Niagara Square

There is no doubt Howard supports Trump, who already signaled his intent to run again in 2020. But a Howard aide said the rally at Niagara Square was really an issues event, not a political one, as Second Amendment concerns provided a notable backdrop. Further, Howard’s speech focused largely on the U.S. Constitution, not on Trump or his performance so far, the aide said.

[Gallery: Spirit of America rally at Niagara Square] 

As for whether Howard did something he wouldn’t allow his own employees to do, his administrative chief, John W. Greenan, said the “Rules of Conduct” allow employees, with permission, to appear in uniform at issues events, such as those calling for, say, the need for stronger drug laws.

"We believe there is a very discernible distinction between an 'issue' rally and a rally for a specific political candidate," Greenan said.

Four people have written to the Erie County Board of Ethics seeking a review of Howard’s behavior. The four say Howard should not have worn his uniform to an event that presented such an obvious political leaning, and where a white supremacist was seen passing out literature.

One of the four is Paul McQuillen, upstate coordinator for the group New Yorkers Against Gun Violence, who dislikes Howard’s refusal to enforce New York’s SAFE Act because he considers it unconstitutional. Cosponsoring last week’s rally were the tea party and the Shooters Committee on Political Education, which wants the SAFE Act abolished.

“As a private citizen, Tim Howard can do as he pleases,” McQuillen said. “But as the sheriff of Erie County, I don’t believe he represents the people of Erie County in expressing his views like that.”

“When you wear that badge it signifies something,” McQuillen added. “In this case, it signifies that you are the highest law enforcement officer in the county. And you are held to a higher standard.”

Meanwhile, Erie County Legislator Betty Jean Grant of Buffalo, a Democrat whose party does not control the Legislature, has introduced a measure calling into question Howard's decision to attend the rally, let alone in uniform. Her resolution asks that he appear before the Public Safety Committee to explain his thinking. Three other Democrats support the request.

While the State Board of Elections says police who endorse candidates while in uniform violate the law, the agency also carves out some liberties for police officers when they run for office and for sheriffs when they seek re-election. Both can appear in uniform in their own campaign materials and in their own campaign events.

As far as federal law is concerned, sheriffs who endorse candidates while in uniform do not run afoul of the Hatch Act, which restricts the political activities of executive-branch employees whose jobs rely to some degree on federal spending, according to a 2012 opinion form the U.S. Office of Special Counsel.

Zellner calls sheriff's appearance at Trump rally 'disgraceful'

The State Board of Elections did not respond to a request for comment for this article, and it’s difficult to say Howard crossed a legal boundary in state law. But some people, included a former Erie County sheriff, say they wouldn’t have done such a thing.

By attending the rally, Howard took a partisan position said Higgins, a Democrat who served as sheriff from 1985-97. Higgins says Howard, a Republican, should have worn presentable civilian clothes, like a nice suit.

When wearing the uniform, “you have to represent everybody,” Higgins said.

Roger Krieger retired as the assistant chief of operations for the Erie County Sheriff’s Office in 1988 and went on to serve as police chief in the Florida community of Crystal River. Krieger says the rally was not an issues event. He views  it as a rally to trumpet a a political viewpoint. And he knows of many sheriffs who would not have worn their uniform.

“The power of law enforcement is extremely strong,” Krieger said. “You always have to think about perception.”

“By coming there in uniform, he came there basically representing all of the citizens of Erie County,” Krieger said of Howard. “And that’s where I have a problem.’’

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