Sheriff Timothy B. Howard did not violate the Erie County Code of Ethics when he wore his uniform to a pro-President Trump rally, the county's Ethics Board says.
The panel can only enforce the county's ethics code, Chairman Steven Schwartz wrote in response to the handful of citizens who had urged the panel to act against Howard. The code, Schwartz told them, lets elected officials participate in public discussions or advocate for any position, "in an official or in another capacity," as long as they are not collecting extra compensation.
The decision, reached this week, was sent to the five people who filed complaints after Howard on April 1 donned official garb for a rally with political overtones in Niagara Square. The event, one of a series of pro-Trump "Spirit of America" rallies staged across the country, was sponsored locally by the Tea Party and the Shooters Committee on Political Education, which resists gun-control measures.
SCOPE, the Tea Party and Howard are in lockstep as they continue to speak out against New York's SAFE Act, the 2013 measure regulating the ownership of military style rifles. Howard has often said he will not enforce the SAFE Act because he considers it unconstitutional. He has appeared as a featured speaker, in uniform, at other pro-Second Amendment events.
One of the complaints was filed by Paul McQuillen of Buffalo, Western New York coordinator for New Yorkers Against Gun Violence, which supports gun control. McQuillen wrote to the board: "Obviously, the problem is not with Mr. Howard attending the rally as a public citizen [as is his right], but in presenting himself as the sheriff of Erie County in public notices and in official capacity and uniform."
McQuillen said the ethics panel could have found that Howard failed to maintain the "high moral and ethical standards" the authors of the code value. "I don't think that wearing the badge to an event like that comports with the integrity that they envisioned," McQuillen said. But he said he is researching and considering other approaches, including those suggested by the ethics panel's chairman.
While Howard broke no rule or code that the ethics board enforces, Schwartz gave the citizens other avenues to explore: Did the sheriff violate a rule in the county's employee handbook? Did he violate state Election Law, which would make it a matter for the district attorney? Or could he have violated the Sheriff's Office's Rules of Conduct, a matter for the sheriff's own Professional Standards Division?
The sheriff's own rules, laid down for his hundreds of employees, allows them wide leeway to become involved in politics – as private citizens. Only with prior permission may they appear as department officials at public events. An aide to Howard explained last month that the Spirit of America rally should be considered an issues event, not a political one, and it's not uncommon for supervisors to permit employees to appear in uniform at issues events. The Ethics Board, however, saw the event as a political one.
As for the state Election Law, it blocks police officers from endorsing political candidates while in uniform or using their "official capacity" to influence an election. McQuillen pointed out that Trump may now be considered a presidential candidate, because he says he intends to run for re-election in 2020.
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 by the U.S. Office of Special Counsel.
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