By Joel Thurtell

Keith Olbermann got it right when he said in his “apology” that MSNBC’s ban on political donations by network employees like Olbermann was “probably not legal.”

But why did Keith Olbermann feel the  need to apologize for exercising his right as a citizen to take part in our nation’s political process? So what if he made political donations. It was his right, so why say he’s sorry?

Pressure from orthodox Journalists or maybe from MSNBC is my guess. Or maybe he’s confused about the issue.

His estimate of the legality of MSNBC’s ban is correct as far as Michigan law is concerned.

An employer’s ban on employees’ political activity would violate the Bullard-Plawecki Employee Right-to-Know Act.

I wrote about this extensively back in 2008 when The Newspaper Guild successfully defended my right to take part in politics when my then employer, the Detroit Free Press and parent company Gannett forbade it.

I was disciplined for donating money to a political party and told if I ever did it again, I could be fired.

In other words, Free Press managers tracked my political activity; they made a record of it and put it in my file; they ordered me to refrain from politics or face possible firing.

Except for the firing, the record-keeping is what the old police department Red Squads used to do: Keep files on people whose politics they didn’t like. Incidentally, I learned about this first-hand in the early 1980s when I was given a copy of the file Michigan State Police kept on me, with help from the Ann Arbor, Michigan, Police Department.

Placed in the perspective of the Bullard-Plawecki law, employers’ efforts to monitor and regulate political behavior of staffers — like what MSNBC did to Keith Olbermann and the policies of myriad news organizations including The New York Times — are similar to the Red Squad activities of police departments that occurred through much of the 20th century.

Here is the column I posted on June 6, 2008:

Private red squads illegal, too

by JOEL on JUNE 6, 2008

By Joel Thurtell

Who ever heard of newspapers running red squads?

Sound crazy?

Well, in their effort to impose behavioral conformity on newsroom workers through loosely-thought-out rules known as “ethical guidelines,” news managers have actually been doing the same kind of political surveillance that once was the domain of police agencies.

I’ve had experience with both kinds of repression, and in my case, the private form of enforced political behaviorism was the most onerous. I didn’t know till years later that I was under a haphazard form of state police surveillance, but I found out very fast that my politics were being watched when my newspaper editors got wind that I donated money to a political cause.

A little background: Sometime around 1970, when I was a history grad student at the University of Michigan, a friend invited me to a meeting of the International Socialists in Ann Arbor. I remember little of the meeting except that the discussion was boring, but the chicken curry was great.

It turns out something else was going on at that meeting besides curry chicken and a soporific lecture by a Yugoslavian economist. Somebody was jotting down names. Including mine. I never joined the International Socialists, but a list of IS members dated July 7, 1970, had my name on it. The list made its way from the International Socialists to the files of the Ann Arbor Police Department. From there it migrated to the Michigan State Police Intelligence Division in Lansing. This outfit was better known as the state police red squad. I later learned from a former state police red squad detective that the state police hired informants to infiltrate political groups in Ann Arbor. I suspect a paid informant passed that membership roster to the cops.Years later, people sued and a court ordered the dismantling of local and state police red squads. As part of the dismemberment of the state police bureau, notorious for keeping tabs on the Boy Scouts, churches and law-abiding citizens including onetime Gov. John Swainson, the files were distributed to those whose names and alleged political affiliations were in it. I have copies of the two pages that were my state police red squad file.

But government police agencies aren’t the only organizations that keep tabs on people’s politics. Big surprise: Companies do it, too.

For the second time, I found myself the subject of a red squad operation. It happened last year when I ran afoul of a custom-made Detroit Free Press ethics policy banning staffers from donating money to political parties. Custom-made for me, a reporter for the Gannett-owned Free Press at the time.

This time it wasn’t the International Socialist party I was accused of belonging to. I was in trouble for giving money to one of the two mainstream political parties, in my case five hundred smackers to the Michigan Democrats in 2004. My contribution was no secret. It’s on the Michigan Secretary of State website. Nothing happened in 2004. Nothing happened in 2005. Nothing happened in 2006. But after an MSNBC report mentioned my contribution and those of other journalists in June 2007, a top Free Press editor warned me if I made further political donations, I would be disciplined and possibly fired.

Like latter-day red squad dicks, editors made a record of their finding and of our e-mail correspondence and placed it in my personnel file. Now, I believe I have a constitutional right to eat chicken curry with the International Socialists if I want to, and it’s none of the government’s business. I also believe I have a right to support political causes, including the Democrats, and it’s none of the Free Press’s business. I told the MSNBC reporter that my donation didn’t violate the Free Press ethics guidelines of 2004 back when I wrote the check to the Dems. Nor did it violate the Free Press/Newspaper Guild’s contract, which has a professional integrity section. “Whatever the Free Press policy is, I actually have my own policy about that,” I said. “I’m a citizen of the United States. I have a right to support whatever candidate I like.”

With help from Detroit Local 22 of The Newspaper Guild, I challenged the Free Press on their ban of political donations. An arbitrator last month set aside the Free Press prohibition, declaring it “null and void.” That means staffers at the Free Press can make donations to any legal activity or organization they like.

I have since learned that what the Free Press did was illegal. Editors made and kept a file on my political activity. That’s a violation of Michigan’s Bullard Plawecki Employee Right to Know Act. The language of the Act is broad and covers more than just politics. It forbids employers from collecting and keeping records of workers’ associations, publications or activities that take place outside work. It covers all employers, both government and private, and it applies to all kinds of work, not just journalism.

Here’s what Section 8 of the Employee Right to Know Act says:

(1) an employer shall not gather or keep a record of an employee’s association, political activities, publications, or communications of nonemployment activities, except if the information is submitted in writing by or authorized to be kept or gathered, in writing, by the employee to the employer. This prohibition on records shall not apply to the activities that occur on the employer’s premises or during the employee’s working hours with that employer that interfere with the performance of the employee’s duties or duties of other employees.”

In Michigan, according to this statute, no employer may monitor or keep records of workers’ extracurricular activities of virtually any kind, including political activities. In my case, there is no question that a record of my donation to the Democrats was made. Placing that printout regarding my political donation into my personnel file violated the Bullard Plawecki law.There is a remedy.

According to Section 11 of Bullard Plawecki, “If an employer violates this act, an employee may commence an action in the circuit court to compel compliance with this act. The circuit court for the county in which the complainant resides, the circuit court for the county in which the complainant is employed, or the circuit court for the county in which the personnel record is maintained shall have jurisdiction to issue the order. Failure to comply with an order of the court may be punished as contempt. In addition, the court shall award an employee prevailing in an action pursuant to this act, the following damages:

(1) For a violation of this act, actual damages plus costs.

(2) For a willful and knowing violation of this act, $200.00 plus costs, reasonable attorney’s fees, and actual damages.”

Journalists should take note of two things. First, the arbitrator in my political donation case ordered the Free Press to scrap a rule banning political donations. That ruling is a precedent that can be used in similar labor contract cases nationwide, and it provides guidance in noncontract cases. It’s also a powerful jab at news organizations’ efforts to regulate non-work-related behavior of staffers.

Secondly, in Michigan, any news organization, indeed any employer with or without a labor contract that tries to ban political activity could be in violation of state law if it tried to enforce its policy. It could be subject to court sanctions if it monitors, tracks and records employees’ outside political activities.

The Bullard Plawecki law is a shield not only for journalists, but for all workers with opinions and a will to act politically.

Contact me at joelthurtell(at)gmail.com