BB&K In The News

BB&K Attorneys Scott Smith and Matthew “Mal” Richardson write in PublicCEO how improper use of public funds during campaign season can run public agencies or their employees afoul of the law.

By Scott C. Smith and Matthew Richardson, Best Best & Krieger LLP

As November elections and some major ballot measures loom, and as 2016 general election candidates start copping to “thinking about a run,” now seems a good time to revisit the impartiality required of public agencies and their employees when it comes to election ballot matters.

Running afoul of these important laws regarding the use of public funds and advocacy can land a public agency and/or its employees in hot water, but compliance really just requires some common sense and presence of mind.

Use of Public Funds

California law allows public agencies to expend public money and resources to educate voters on matters included on an upcoming ballot. State law does not permit using public money or resources to advocate on behalf of, or attempt to influence voters on election matters. In short, a public agency may not encourage “yes” or “no” votes, but may expend public funds on informational activities that provide a fair representation of the facts surrounding a ballot measure. In short, education is permitted; advocacy is not.

The prohibition on the use of public funds for traditional campaigning purposes is founded on the principle that proponents and opponents of a local proposition have an equal right and interest in the use of local public monies and resources. Selective and imbalanced use of public funds in election campaigns improperly distorts the democratic process.

Although no particular rule governs every case, the following factors help distinguish between improper campaigning activities and proper, informational activities:

• Balanced Presentation. Legitimate informational activities are those that present information relevant to both sides of an issue, including potentially positive and negative impacts. One way to ensure a balanced presentation is to provide measure opponents (who, by definition, might not have had a hand in crafting the ballot measure)actual access to publications so they may provide their contrary point of view.

• Campaign Materials. Public monies should not fund items such as bumper stickers, posters, advertising floats or television or radio spot surging a particular vote on a measure.

• Public Meetings. The agency’s view on a measure may be expressed at a noticed public meeting because individuals in opposition to the agency’s view are afforded an opportunity to speak out. In this situation, the agency is not limited to providing a fair presentation of the facts, and members of the governing board may advocate for or against a measure.

• Use of Public Resources. Using public resources to influence voters on a measure is not permitted. Public resources include any property owned by the agency, including buildings, facilities, funds, equipment, telephones, supplies, computers and vehicles. Public resources also include the use of agency staff. Therefore, correspondence favoring or opposing a measure should not be authored by agency employees during working hours.

Preparing or Developing a Ballot Measure (Before Inclusion on the Ballot)

One of the primary functions of elected and appointed officials is to devise legislative proposals to implement the current administration’s policies. Consequently, courts have held that a public agency may prepare, develop and draft proposed legislation, including a ballot measure, to be submitted to the voters. A public body’s ability to prepare and present a ballot measure probably includes some ability to publish and disseminate it, but these activities should not exceed what is statutorily prescribed under the Elections Code and what the agency normally does in connection with public notification of other minute motions, resolutions and ordinances ordinarily adopted by the agency.

Campaigning by Officials

As discussed above, the use of public funds in connection with a ballot measure is restricted to informational activities. However, when the use of public funds or resources is not involved, this restriction does not apply. Therefore, agency officials may attend rallies and neighborhood meetings, or go door-to-door, as long as they do not represent that they are doing so in connection with official business and are not using public funds or time in connection with such activities. Where agency time or funds are involved, the effort must be strictly limited to providing objective information to the public. It is also important to note that public employees are specifically prohibited from participating in any sort of political activity while in uniform.

Officials who wish to participate in activities concerning ballot measures may do so in their individual, as opposed to official, capacity.

They may also expend their own personal funds on a measure and identify themselves as being affiliated with the agency in any presentation or publication advocating for or against the passage of the measure. However, it should be clear that such presentation or publication is paid for with the official’s personal funds, or some other funding source, and not with public funds.

* This article first appeared in PublicCEO.com on Oct. 14, 2014. Republished with permission.