Can public funds or resources be used to distribute material which is political in nature in an effort to urge the public to support or oppose an initiative on the ballot? The case law and statutory law governing these issues is clear on when and how a local agency or official can use public funds or resources regarding a ballot measure.
Generally, if the materials being distributed are political in nature, and are designed to advocate for a certain position or measure, neither public funds nor resources can be used to further this objective. However, if the material being dispersed is intended to educate the electorate, public funds and resources can be used to the extent the material is neutral and objective.
Advocate vs. Educate
In order to understand the permissible uses for public funds or resources, we must first understand the difference between materials that advocate and materials that educate. California Code of Regulations., Title 2, § 18225, subd. (b)(2),providesthat a communication will be deemed to “expressly advocate” if it contains language that supports the qualification, passage or defeat of a measure. Words of advocacy include: “vote for,” “elect,” “support,” “cast your ballot,” “vote against,” “defeat,” “reject,” “sign petitions for or against.”
When determining if the communication has a political purpose, or is advocating for a particular result, the communication as a whole is taken into consideration, and the intent to unambiguously influence or attempt to influence the action of the voters for or against any measure is evaluated. Cal. Code Regs., Title 2, § 18225, subd. (a) (1); DiQuisto v. County of Santa Clara, 181 Cal. App. 4th 236 (2010).
Materials which are perceived as objective and impartial will be considered informational or educational. These materials are drafted and presented with the purpose to enhance the voters’ knowledge. Educational materials will present both sides of an issue, without any bias or encouragement towards a certain result.
Government Code section 54964(a) provides that “[a]n officer, employee, or consultant of a local agency may not expend or authorize the expenditure of any of the funds of the local agency to support or oppose the approval or rejection of a ballot measure, or the election or defeat of a candidate, by the voters.” “A municipality’s expenditure of public funds on a communication relating to a ballot measure is permissible whenever the communication does not expressly advocate a position with regard to the ballot measure.” Vargas v. City of Salinas, 46 Cal. 4th 1 (2009) citing Gov. Code, § 54964.
A public entity is permitted to spend funds on informational materials to educate or “provide the public with a ‘fair presentation’ of relevant information . . . .” [Government Code section 54964(b)]. There is a critical distinction between expenditures by a governmental body for informational activities… and expenditures for campaign activities. (Stanson v. Mott, 17 Cal. 3d 206 (1976); Keller v. State Bar, 47 Cal.3d at p. 1170; Vargas v. City of Salinas, 46 Cal. 4th 1 (2009).
The use of government funds for informational activity is permissible. As the Vargas court explained, “because of potential constitutional questions that may be presented by a public entity’s expenditure of public funds in connection with a ballot measure that is to be voted upon in an upcoming election, there is a need to distinguish between (1) ‘campaign’ materials and activities that presumptively may not be paid for by public funds, and (2) ‘informational’ material that ordinarily may be financed by public expenditures.”
“Frequently, however, the line between unauthorized campaign expenditures and authorized informational activities is not so clear.” (Stanson, supra, 17 Cal.3d at p. 222.) “In such cases, the determination of the propriety or impropriety of the expenditure depends upon a careful consideration of such factors as the style, tenor and timing of the publication; no hard and fast rule governs every case.” (citing Vargas, supra, 46 Cal.4th at p. 7.)
The court very specifically makes a distinction between the purpose of promotional activity and the audience to which it is directed by citing to the California Supreme Court, in the case of Stanson v. Mott, 17 Cal.3d 206 (1976), where it held that it is important to identify, “not theobjective of the promotional activity but the audience to which it is directed…. It is one thing for a public agency to present its point of view to the Legislature. It is quite another for it to use the public treasury to finance an appeal to the voters to lobby their Legislature in support of the agency’s point of view.” (Emphasis in original.)
Acts that constitute improper campaign activity includes “the use of public funds to purchase such items as bumper stickers, posters, advertising ‘floats,’ or television and radio ‘spots,’ to advocate for or against an issue or a candidate.” Additionally, the dissemination, at public expense, of campaign literature prepared by private proponents or opponents of a ballot measure is also an improper use of public funds or resources. Stanson v. Mott, 17 Cal. 3d 206, 221 (1976).
The court emphasizes that “every court which has addressed the issue to datehas found the use of public funds for partisan campaign purposesimproper, either on the ground that such use was not explicitly authorized or on the broader groundthat such expenditures are never appropriate.”
“A fundamental precept of this nation’s democratic electorate process is that the government may not “take sides” in election contests or bestow an unfair advantage on one of several competing factions.” (Emphasis added.) The court also states that “while various provisions authorize public expenditures for appropriate legislative lobbying activities, no similar provisions sanction the use of public funds in election campaigns.”(Emphasis added.)
HOW THIS AFFECTS YOUR AGENCY
This issue is of potential concern to police chiefs and sheriffs as a result of the pending slew of initiatives regarding the decriminalization of marijuana for recreational use. Many law enforcement officials are opposed to those initiatives. As such, several professional law enforcement associations have developed material which can be used by its members in explaining to the public why such action would not be in the best interest of the public’s safety.
It is perfectly appropriate for chiefs, sheriffs, and others to disseminate that information to those who support their approach, and to those who do not, in an effort to change their position. What must be remembered is that the material cannot be distributed using government equipment, nor can it be disseminated while on duty.
Meetings involving initiative campaigns should not be held on government property unless the purpose of the meeting is to provide impartial, educational, information. They should not involve advocating, one way or the other, a position on the initiative.
As always, if you wish to discuss this case in greater detail, feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship.