So 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