Clarifying the Role a Public Agency May Play in a Local Ballot Measure

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City-Budget-Flyer-1So Bob Dunning, without citing a single law or statute, offers up that he believes that the city’s mailer was a campaign piece.  Mr. Dunning uses someone named Bill as a surrogate here, arguing, “The city’s mailing may violate Fair Political Practices Commission rules against using public money to advocate for ballot measures.”

Mr. Dunning argues, “One of the measuring sticks the FPPC uses in determining whether a public agency has stepped over the legal line is the use of ‘argumentative’ language.”  He adds, “For my money, given that we’re within two months of an election, any mailing from the city detailing what will or won’t happen if Measure O does or doesn’t pass is highly suspect.”

So we know what Mr. Dunning’s position is, and it is not based on the law, it’s based on the notion that any mailing within the last two months of an election is “highly suspect.”

The California Institute for Local Government puts out a pamphlet on what agencies can and cannot do.  They write, “As important as ballot measures are to policymaking in California, public agencies and officials face important restrictions and requirements relating to ballot measure activities.  The basic rule is that public resources may not be used for ballot measure campaign activities. Public resources may be used, however, for informational activities.”

What can a local agency do?  They can “prepare an objective and fact-based analysis on the effect of a ballot measure on the agency and those the agency serves.”

They can, “Distribute that analysis through regular agency communications channels (for example, through the agency’s website and in regularly scheduled agency newsletters).”

They can even “Adopt a position on the measure, as long as that position is taken at an open meeting where all voices have the opportunity to be heard.”

The pamphlet adds, “Any agency communications about ballot measures should not contain inflammatory language or argumentative rhetoric.”

They list out what the agencies cannot do which is engage in campaign activities while on agency time, use agency resources to “engage in advocacy-related activities, including producing campaign-type materials or performing campaign tasks.”

They cannot use public funds for campaign expenses, they cannot use public equipment, cannot use communication channels to distribute campaign material, cannot posts links to campaign websites on the agency’s website or give preference to campaign-related requests to use agency facilities.

The Institute for Local Government puts out a handbook on the use of public resources for ballot measure activities.

They note, “The reason courts have given for the restriction is a concern that using taxpayer dollars in an election campaign could distort the debate and undermine the fairness of the election.  More specifically, courts have worried about public agency communications overwhelming voters and drowning out the views of others.  It also is a way of maintaining the integrity of the electoral process by neutralizing any advantage that those with special access to government resources might possess.”

However, “Courts have also recognized that public agencies also have a role to play in making sure the public has the information it needs to make informed decisions.”

As the court writes, “If government is to secure cooperation in implementing its programs, if it is to be able to maintain a dialogue with its citizens about their needs and the extent to which government can or should meet those needs, government must be able to communicate. An approach that would invalidate all controversial government speech would seriously impair the democratic process.”

“The court also noted that, if public agencies cannot address issues of public concern and controversy, they cannot govern.”

There are three categories of activities – those that are usually impermissible campaign activities, those that are usually permissible information activities, and those that require further analysis under the “style, tenor, and timing” test.

What is permissible?  “Taking a position on a ballot measure in an open and public meeting where all perspectives may be shared.  Preparing staff reports and other analyses to assist decision-makers in determining the impact of the measure and what position to take.  Responding to inquiries about ballot measures in ways that provide a fair presentation of the facts about the measure and the agency’s view of the merits of a ballot measure. Accepting invitations to present the agency’s views before organizations interested in the ballot measure’s effects.”

What they can’t do?  “Impermissible activities include campaign materials: bumper stickers, posters, advertising ‘floats,’ television and radio spots, and billboards.  Another improper activity is using public resources to disseminate advocacy materials prepared by others.  “Promotional campaign brochures” are also not allowed, even when those documents contain some useful factual information for the public.”

They write, “Any activity or expenditure that doesn’t fall into the above two groups must be evaluated by a ‘style, tenor and timing’ standard against the backdrop of the overarching concern for fairness and non-distortion in the electoral process.”

They note that the safest approach “is to deliver the information through regular agency communications channels (for example, the agency’s existing website and newsletter), in a way that emphasizes facts and does not use inflammatory language or argumentative rhetoric.”

They add, “Any communications should not encourage the public to adopt the agency’s views, vote one way or another, or take any other actions in support of or in opposition to the measure.”

This is what the city did.  They disseminated information via the city’s utility bill.  They did not encourage the public to adopt the agency’s views or vote one way or another, or take any actions in support or in opposition to the measure.

As the ILG notes, “Regulations adopted by the Fair Political Practices Commission further prohibit certain kinds of communications using a similar, but not identical, standard as the courts. The regulation prohibits mailed communications that either expressly advocate the passage or defeat of a clearly identified ballot measure or, when taken as a whole and in context, unambiguously urge a particular result in an election.”

The city in their piece as we explained on Sunday, explained the city’s budget situation, the budget challenge, the shortfall and the fact that “the City must secure additional revenue streams to avoid cuts to services like police, fire, parks and recreation and infrastructure maintenance.”

The city never tells the voters that they should support Measure O, only what the consequences would be without the city securing additional revenue streams.

There is no “inflammatory or argumentative language” and it is “consistent with normal communications patterns for the agency.”

For additional information, the public can see:

Legal Issues Association with Use of Public Resources and Ballot Measure Activities

California Supreme Court decision, Vargas v. City of Salinas, April 2009 – Analysis and Decision

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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16 thoughts on “Clarifying the Role a Public Agency May Play in a Local Ballot Measure”

  1. South of Davis

    David writes:

    > So Bob Dunning, without citing a single law or statute, offers up that he
    > believes that the city’s mailer was a campaign piece.

    Then “without citing a single law or statute” says Bob is wrong…

    David does quote “The California Institute for Local Government ” (that has been in favor of tax increases as often as Americans for Tax Reform has been opposed to them).

    The city was in campaign mode when it wrote:

    “the City must secure additional revenue streams to avoid cuts to services like police, fire, parks and recreation and infrastructure maintenance.”

    I’m betting that a typical Americans for Tax Reform member would have wrote: “the City must secure additional revenue streams to avoid cuts to a million dollar “study” on creating our own utility district, replacing perfectly good traffic signals to reduce the traffic flow on busy streets and a reduction in the number of fancy new $1,000 trash cans we can buy to replace the perfectly good but not as fancy $600 trash cans we bought a few years back”…

  2. David Greenwald Post author

    I linked the Supreme Court decision Vargas v. City of Salinas, April 2009. The Legal Issues Association with Use of Public Resources and Ballot Measure Activities contains references to statutes and court decision.

  3. Frankly

    Good article. Educational for me.

    It appears that Dunning was wrong to accuse the city of wrong-doing. However, I support his continued challenges for this type of thing. Just knowing that Dunning is out there ready to pounce should do a lot to help prevent the city from making stupid mistakes. And if we know one thing about our city government and politicians… they are mistake-prone.

    I know this bothers the average tax and spend Davis liberal… since Dunning’s influence is real and there is a justified concern that he can tilt voter opinion in opposition of tax increases and more spending… but then kids need to be told no sometimes or they will careen out of control and injure themselves.

    1. Barack Palin

      Some of our local liberals are complaining that Dunning has a soap box and they feel it’s unfair for him to have such a strong voice. I see it the other way, it’s good that in this very left leaning town we do sometimes have a differing viewpoint. They don’t like that and you’ll hardly ever hear them complain about the many other liberal articles and columnists in the Enterprise.

      1. Frankly

        Yup. Agree.

        Also, Dunning is a bit snarky, sarcastic, and prickly. I don’t think he would argue this. People that read the Enterprise know this about him. And they take his opinions in context. Note that he was absolutely against the surface water project and the citizens still voted to approve it.

        Contrast Dunning to someone like Paul Krugman. That guy is a joke… 100% leftist-biased but fluffed up demanding he is some gifted and respected deep-thinking Nobel Prize-winning economist. I have never heard a liberal complain about the influence of Paul Krugman even as his writing drips with one-sided leftist considerations… more Democrat Party propaganda than journalism.

        Some people have a tendency of 180 degree thinking. They can carry a debate up until the point that the arguments make them feel strongly either good or bad. And then that is enough for them. I see it as a deficit in emotional intelligence… and for those that have it I would say it is intellectual dishonesty.

        Take someone owning liberal political views… they would accept Krugman’s junk and defend him because it makes them feel good about themselves because he validates their views… and they would reject Dunning’s stuff and attack him because it makes them feel bad since it refutes their views.

        The same is true for righties that maintain that everything Rush Limbaugh says is gospel.

        It really is too bad that more people cannot do the 360 degree logic track and acknowledge something new that goes against their previously held beliefs.

        I think we would all be better off just admitting we are all ignorant about most things and we are open to learning more. But I guess when a person spends all that effort acquiring so many academic credentials, it becomes more difficult for them to do so.

        1. South of Davis

          Frankly wrote:

          > Contrast Dunning to someone like Paul Krugman. That guy is a
          > joke… 100% leftist-biased but fluffed up demanding he is some
          > gifted and respected deep-thinking Nobel Prize-winning economist.

          I bet Frankly can’t wait to read the report on “how income inequality is bad” that Krugman was paid $300K to write.

          http://www.zerohedge.com/news/2014-04-17/krugman-who-paid-25000month-study-inequality-says-nobody-wants-us-become-cuba

          1. Frankly

            Krugman is a shyster and a phony. Just like Al Gore he makes coin helping liberals feel good about themselves.

            The difference between Krugman and Limbaugh is the morality of transparency. Limbaugh is completely transparent… he is an entertainer and he constantly reminds his audience of this. Krugman however is a fake economist just like Al Gore is a fake scientist. But liberals don’t mind as long as they frog-step to their rigid ideological demands. In fact, liberals love actors that play the part of a good liberal. Any wonder why the entertainment industry and politics have merged?

          2. Jim Frame

            Krugman is a shyster and a phony

            He sure pulled the wool over the eyes of the Nobel Committee, didn’t he? And Princeton University, Yale, MIT, Stanford, the London School of Economics, the American Economics Association, and a few others. Fooled ’em all, right?

          3. Frankly

            The Economist cites critics of Krugman stating that “his relentless partisanship is getting in the way of his argument”. In addition, a website (titled “Lying in Ponds”) that tracks partisanship among public intellectuals rated Krugman second in the overall partisan slant of his columns, behind only Ann Coulter.[30] As Richard Posner and economist Mark J. Perry note, the site, which uses careful statistical analysis to make assessments political partisanship, has ranked Paul Krugman the number 1 or number 2 most biased every single year from 2002-2008.[31][32]

            The Economist magazine supported the finding, noting the vast majority of Krugman’s columns feature attacks on Republicans and almost none criticize Democrats, making him “a sort of ivory-tower folk-hero of the American left—a thinking person’s Michael Moore” and that “a glance through his past columns reveals a growing tendency to attribute all the world’s ills to George Bush.”[30] And speaking on Krugman’s recent “prophecy of doom” regarding the 2010 election, the magazine calls it a “baseless partisan freakout”.[33]

            A study published in the peer-reviewed Econ Journal Watch examined statements from 17 economists from 1981 through 2009, and gauged the consistency of their stances on deficit spending and reduction during Republican and Democratic administrations. According to the study, Krugman was the only economist of the 17 to “significantly” change his stance on the federal budget deficit for partisan reasons.[34]

            This finding of inconsistency was supported when The Wall Street Journal (WSJ) showed that Krugman contradicted his own findings in order to criticize Republican policy. When Republican Senator Jon Kyl stated that unemployment relief doesn’t create new jobs and in fact is a disincentive for unemployed individuals to seek new work, Krugman called it a “bizarre point of view” and stated that “What Democrats believe is what textbook economics says […] But that’s not how Republicans see it”. James Taranto of the WSJ reproduced a passage from a textbook called Macroeconomics which states: “The drawback to [unemployment benefits] is that it reduces a worker’s incentive to quickly find a new job.” The authors of the textbook are Paul Krugman and his wife.[35] This led John Hinderaker of the conservative Claremont Institute to proclaim: “only the existence of Frank Rich prevents Krugman from being the world’s worst columnist.”[36]

            In 2008, economist Peter Boettke noted: “[Over the years] Krugman’s work devolved from science to ideology and finally to political partisanship” and that Krugman “has used his platform as an economist and as a columnist for the New York Times for his Democratic partisanship purposes.”[37]

            Author and federal appeals court judge Richard Posner called Krugman “an unabashed Democratic partisan who often goes overboard in his hatred of the Republians.” [sic][31]

            Economist Donald Boudreaux has stated that Krugman does “a disservice to non-‘liberal’ scholars as well as to scholarship generally” by asserting that serious thinking is done only by Krugman himself and other liberals.[38]

            Liberal journalists also openly point out Krugman’s obvious political bias: New York Magazine called Krugman “the leading exponent of a kind of liberal purism” that he is “not altogether comfortable with, but it is [a role] he has sought.”[39] Liberal journalist and author Michael Tomasky in The New York Review of Books stated “Many liberals would name Paul Krugman of The New York Times as perhaps the most consistent and courageous—and unapologetic—liberal partisan in American journalism.”[40]

            Liberal historian Michael Kazin has stated Krugman’s account of the right succumbed to the Marxist flaw of false consciousness: “Unlike what Krugman says, conservatism is not some kind of smoke screen for another agenda.

            All of this begs the question: can any hopelessly biased ideologue be considered an economist? Economists are supposed to be professionals that deal specifically with economic history, practice, theory… all backed by real data. Krugman is so left-biased that he cannot seem to complete a full data analysis and arrive at an objective opinion. Hence, he is a fake economist… more a mouthpiece of the left.

            And his academic credentials do nothing to counter this point… in fact, it strengthens the point since our universities are the breeding ground for a leftist worldview and the advancement of it.

            Those that can, do. Those that can’t, teach and work tirelessly to punish those that do so they can feel better by comparison.

            I’m sure Krugman’s main problem is the burning envy he feels every day sitting next to his less educated, but more successfull, peers… Maureen Dowd and Thomas Friedman.

          4. Jim Frame

            I’m sure Krugman’s main problem is the burning envy he feels every day sitting next to his less educated, but more successfull, peers… Maureen Dowd and Thomas Friedman.

            Don’t leave out “fear of change.” It’s a well-known fact that “wealth envy” and “fear of change” explain all that’s wrong with the world today, and are solely responsible for the fact that Mitt Romney is just another rich guy instead of President of the U.S., much to his astonishment on election night. (“Shell-shocked” might better describe his response that evening. “What? I *lost*? Why, that’s not possible!”)

            As for Dowd and Friedman, the word “peer” is applicable only to the extent that Krugman’s writings sometimes appear in the same pages as theirs. Beyond that — and particularly when it comes to economics — the word doesn’t pertain.

      2. David Greenwald Post author

        He’s entitled to his viewpoint, not his own facts. As Frankly said, he was wrong here. I’ve found when I check his stories that he’s wrong quite a bit.

      3. Davis Progressive

        it is interesting that he gets five columns. but the funny thing is i don’t see this as a left-right thing. i agree with him half the time. the problem is that he’s sloppy. he fails to do his research. he never goes to the council meeting. he fails to square his opinions and the law.

        can you defend his piece from sunday based on the law? of course not.

  4. Ryan Kelly

    Bob Dunning is out of touch.

    I think this is just a waste of our time. The electorate needs to be informed. How else does he think we will receive information on how the budget will look next year if there is no change in revenue?

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