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HomeMy WebLinkAboutS03-City Attorney city. OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION ~ From: JAMES F. PENMAN Subject: ADVICE ON FPPC "ZERO TOLERANCE" WARNING FOR EVADING PUBLIC DIS- CLOSURE Dept: City Attorney October 2, 1996 OR/GI/vAl Date: Synopsis of Previous Council action: NONE Recommended motion: NONE IL ?/~ C Signature Contact person: JAMES F. PENMAN Phone: 5255 Supporting data attached: 3 memoranda and one article Ward: All FUNDING REOUIREMENTS: Amount: -0- Source: (Acct. No.) (Acct. DescriPtion) Finance: Cou nci I Notes: /0 /7/9(;, . I Agenda Item No. S -:3 CITY OF SAN BERNARDINO OFFICE OF THE CITY ATTORNEY INTEROFFICE MEMORANDUM TO: Mayor and Common Council FROM: James F. Penman, City Attorney DATE: October 2, 1996 RE: FPPC " Zero Tolerance" for Evading Public Disclosure The FPPC Bulletin for September, 1996 contains a warning for all public officials from FPPC Chairman Ravi Mehta that is particularly important for all City of San Bernardino elected officials, employees and members of city boards and commissions because of measures on the November ballot and at least one planned measure for March, 1997. On July 3, 1996, the County of Sacramento was fined by the FPPC for failing to report spending on certain ballot measures in the 1993 and 1994 elections. Commenting on the fine, FPPC Chairman Mehta said: " our decision is a clear warning to public officials that there is zero tolerance for evading public disclosure. No matter if they use taxpayer dollars or it comes out of their own pockets, politicians cannot back ballot measures without telling the public what they are doing and how much they are spending. The public is entitled to know who is paying to pass a ballot measure, especially if it is their own government spending tax dollars to persuade them." Mr. Mehta's article concluded saying: "officials who approve independent expenditures that are not disclosed may also be held personally liable." As you know, a government entity (the city in our case) may not expend public funds in favor of or in opposition to a ballot measure. It is a misdemeanor to do so. The FPPC is now requiring any city that spends $1,000.00 (or more) on a ballot proposition, in cash or non-monetary value of goods or services to file a semi-annual statement disclosing the detail of such expenditures. Employee time, use of rooms for meetings, films, T.V. time, etc. may all be counted toward the $1,000.00 threshold amount triggering the filing requirement. Because prosecutors have not always been aggressive in a uniform manner throughout the state on the criminal aspects of such violations, it is significant that the FPPC has stepped into the breach and is now pursuing actions against those who fail to file as required. Mayor and Common Council Zero Tolerance Memo October 2, 1996 Page 2 We remind you of our July 10, 1996 Memorandum on the "Use of Public Funds and Public Time in Support of or Opposition to Ballot Measures" previously distributed to you (copy attached) and the August 2, 1996 Memorandum on the same issue which you have also received earlier (copy also attached). Please review these carefully. The fine you save could otherwise come out of your own pocket--not to mention criminal charges. 7-t~ James F. Penman City Attorney attachments ~ State of California Fair Political Practices Commission 1 September 1996 Volume 22, Issue 3 County of Sacramento Fined ghe County of Sacramento was . fined $10,000 at the July 3 Commission meeting for five counts of failing to report spending on ballot measures Proposition 172 and Measure Q in 1993 and Measure B in 1994 elections. Proposition 172 was an initiative to amend the state constitution with a permanent half-cent sales tax to support law enforcement. Measure Q would have retained the existing sales tax in Sacramento County. Measure B would have created and funded a benefit district for open space. County supervisors approved use of county funds to persuade county citizens to vote for the measures, but did not disclose the expenditures as all other independent expenditure groups must do as required by law. The California Political Reform Act mandates that any individual or organization that Continued on Page 3 Enforcement Actions County of Sacramento Fined Continued from page 1 spends $1,000 or more to support a ballot measure in cash or non-monetary value of.goods'or services must file semi-annual statements that disclose spending details. In the Measure B matter, the Sacramento County counsel advised the supervisors that they should "expect" an FPPC investigation on spending for brochures, videos, newsletters and plans for cultivating the newsmedia and community leaders. Despite the advice, the county spent taxpayer funds to hire a communications consultant to produce a "public education" plan and materials designed to persuade voters to .support Measure B, a proposal to fund-a benefit~istrict for open space. FPPC Chair Ravi Mehta characterized the penalties as a tough new standard for elected officials and a ground-breaking precedent for the Political Reform Act. While the FPPC penalized a San Diego area school district and its superintendent for a mass mailing violation in 1991 that was not election-related, the Sacramento County case is a first time enforcement against a government agency since the FPPC was created 21 years ago. Mehta said that as a result of the Sacramento County case, he has directed the FPPC Enforcement Division to make random audits and aggressive investigation a high priority for any elective board, council or commission which involves itself in a ballot measure. "For too many years, elected officials have chosen to read only the first half of our regulation that says they can't call for a yes or no vote on a ballot measure," said Mehta. "They ignored the second half that says that if their mailing or brochure or any other communication taken as a whole unambiguously urges a particular result in an election, that expenditure counts toward their becoming an independent expenditure committee. They must then disclose how and when they spent every dime." Mehta said that during election years, the FPPC gets numerous complaints alleging misuse of public funds in ballot measure campaigns, but the Political Reform Act prohibits use of public funds only in candidate races. The attorney general has jurisdiction over misappropriation or misuse of public funds. In the past, the FPPC was reluctant t01Jursue the complaints because allegations are extremely difficult to prove and because of duplicate expense to the public. Mehta says the Commission's decision marks an end to that reluctance. The maximum administrative fine per violation under the Political Reform Act is $2,000. Civil penalties are usually higher. District attorneys and the attorney general may file criminal charges. Officials who approve independent expenditures that are not disclosed may also be held personally liable. ,ion "Our decision is a clear warning to public officials that there is zero tolerance for evading public disclosure. No matter if they use . taxpayer dollars or it comes out of their own pockets, politicians cannot back ballot measures without telling the public what they are doing and how much they are spending. The public is entitled to know who is paying to pass a ballot measure, especially if it is their own government spending tax dollars to persuade them." - Chairman Ravi Mehta er 1996 FPPC Bulletin 3 September 1996 CITY OF SAN BERNARDINO INTEROFFICE MEMORANDUM TO: Mayor and Common Council FROM: Dennis A. Barlow, Sr. Asst. City Attorney DATE: July 10, 1996 RE: Use of Public Funds and Public Time in Support of or Opposition to Ballot Measures ISSUE Questions have been raised as to what restrictions, if any, exist as to the advocacy for or against ballot propositions by elected or appointed public officers, including, but not limited to, use of the City Council announcement time during meetings of the Mayor and Common Council. This would relate directly to the state of the law as to what limitations have been imposed on the use of public funds and public time in the support of or opposition to such measures on the ballot. CONCLUSION Since the rights are so significant and the penalties so severe, we suggest that extreme caution be employed, to guard against crossing the line between providing educational information to the public and advocating for or against a ballot measure. As a result we suggest that the City Council announcement section of the meeting of the Mayor and Common Council not be used for that purpose. If a Councilmember desires to discuss his or her support for or opposition to a particular ballot measure, he or she should leave his or her place on the dias and speak at the public microphone during the public comments portion of the meeting. Certainly by being elected to the Council, a member does not lose his or her First Amendment free speech rights, and may speak out on any issue. This would include speaking at service clubs, community meetings, public forums, church groups and other locations around the City. However, as noted below, he or she may not use public funds, public employees, public time, public equipment, or the City's television facilities to make those statements in support of or opposition to a ballot measure, in any way different than a private individual would legally be allowed to do so. DAB/Ibm [Slanson.Mem] 1 ANALYSIS Reference should first be made to the terms of Penal Code ~424. In relevant part, this statute reads as follows: " "Each officer of the state, or of any county. city, town, or district of the state, and every other person charged with the receipt, safekeeping, transfer, or disbursement of public monies who either: 1. Without authority of law, appropriates the same, or any portion thereof, to his own use, or to the use of another; or 2. Loans the same or any portion thereof; makes any profit out of, or uses the same for any purpose not authorized by law; . . . Is punishable by imprisonment in the state prison for two, three or four years, and is disqualified from holding any office in: this state. . . .>> (See People v. Groat (1993) 19 Cal.App.4th 1228, 1232) This provision makes it clear that this is not just an academic question, but one of very serious, practical implications. The leading case in this area is Stanson v. Mott (1976) 17 Cal.3d 206. In Stanson, the Director of the California Department of Parks & Recreation authorized the department to spend over $5,000 of public funds to promote voter approval of a $250 million park bond issue. In considering this expenditure of public funds the State Supreme Court stated: "We recognize, of course, that public officials who either retain custody of public funds or are authorized to direct the expenditure of such funds bear a peculiar and very grave public responsibility, and that courts and legislatures, mindful of the need to protect the public treasury, have traditionally imposed stringent standards upon such officers.>> (17 Cal.3d at 225; see also People v. Vallerga (1977) 67 Cal.App.3d 87.) The Court also concluded: "(E)very court which has addressed the issue to date has found the use of public funds for partisan campaign purposes improper, either on the ground that such use was not explicitly authorized . . . or on the broader grounds that such expenditures are never appropriate ... DAB/Ibm [Stanson.Mem] 2 "Underlying this uniform judicial reluctance to sanction the use of public funds for election campaigns rests an implicit recognition that such expenditures raise potentially serious constitutional questions. A fundamental precept of this nation's democratic electoral process is that the government may not 'take sides' in election contests or bestow an unfair advantage on one of several competing factions. A principal danger feared by our country's founders lay in the possibility that the holders of governmental authority would use official power improperly to perpetuate themselves, or their allies, in office . . .; a selective use of public funds in election campaigns, of course, raises the specter of just such an improper distortion of the democratic electoral process . . . "[T]o date, the judicial decisions have uniformly held that the use of public funds for campaign expenses is as improper in bond issue or other non-candidate elections as in candidate elections." (17 Ca1.3d., at 217-218; see also People v. Battin (1978) 77.. Cal.App.3d 635, where the defendant was a county supervisor who used county employees on public time to work on his campaign for state office.) The Stanson court concluded that the defendant director was personally liable for the wrongful expenditures. In the case of Miller v. Miller (1979) 87 CaI.App.3d 762, the court of appeals was faced with the issue of the expenditure of public funds by the California Commission on the Status of Women to promote the ratification of the Equal Rights Amendment both in California and in other states. Quoting Stanson v. Mott, the Appellate Court concluded that: ". . . (A)t least in the absence of clear and explicit legislative authorization, a public agency may not expend public funds to promote a partisan position in an election campaign. "(87 Cal.App.3d 764.) In response to the argument that the objective of the expenditure was the passage of the legislation, which was an authorized expenditure, the Court declared: ". . . We conclude that the real issue under Stamon is not the objective of the promotional activity but the audience to which it is directed." (emphasis in original; 87 Cal.App.3d at 768.) In the facts before the Court, the audience was not the legislature which would have been an acceptable activity, but the electorate. DAB/Ibm [Slanson.Mem] 3 Again quoting Stanson, the Court stated: ". . . The use of the public treasury to mount an election campaign which attempts to influence the resolution of issues which our Constitution leaves to the 'free election' of the people . . . does present a serious threat to the integrity of the electoral process. " (emphasis of Miller court deleted; at pg. 768) Then the Court declared: "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. The lattef 'undermines Of distorts the legislative process' just as clearly as 'the use of the public treasury to mount an election campaign. . . [distorts] the integrity of the electoral process.'" (emphasis added by Miller.. Court to quotation from Stanson v. Mott; at pgs. 768-769.) It should not be concluded on the basis of Stanson and its progeny that public agencies and public officials may not use public funds to provide public information. The Miller Court noted: ". . . Stanson made it clear that although a public agency may not use public funds to advocate one side of an issue, it does not need specific legislative authorization to provide voters with relevant facts to aid them in reaching an informed judgment when voting upon the proposa1. (Stanson, 17 CaI.3d at p. 220, 130 Ca1.Rptr. 707, 551 P.2d at p. 11.) Thus, the court indicated that agency communications with the public must 'provide the public with a fair representation of relevant information. . .' (17 Ca1.3d at p. 22, 130 Ca1.Rptr. p. 707, 551 P.2d at p. 10)" (Miller, 87 Cai.App.3d 769.). Both Stanson and Miller cite with approval the New York case of Stem v. Kramarsky (1975) 8 Misc. 2d. 7, 375 NYS 2d, 235. This case concerned a taxpayer attack against the campaign of New York's Division of Human Rights for an Equal Rights Amendment to the New York Constitution. In relevant part the New York court concluded: "The spectacle of state agencies campaigning for or against proposed constitutional amendments to be voted on by the public, albeit perhaps well motivated, can only demean the dernocratic process. As a state agency supported by public funds, they cannot advocate their favored position on any position or for any candidate, DAB/Ibm [Stanson.Mem] 4 as such. So long as they are an arm of the state government they must maintain a position of neutrality and impartiality. "It would be establishing a dangerous and untenable precedent to permit the government or any agency thereof, to use public funds to disserninate propaganda in favor of or against any issue or candidate. This rnay be done by totalitarian, dictatorial or autocratic governments but cannot be tolerated, directly or indirectly, in these democratic United States of America. This is true even if the position advocated is believed to be in the best interests of our country. "To educate, to inform, to advocate or to promote voting on any issue may be undertaken, provided it is not to persuade nor to convey favoritism, partisanship, partiality, approval or disapproval by a state agency of any issue, worthy as it may be." (375 NYS 2d at 239.) In Keller v. State Bar (1987) 47 Ca1.3d 1152, 1170-1171, the State Supreme Court reemphasized its conclusion in Stanson that "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." In 35 Ops.CaI.Atty.Gen. 112 (1960) the Attorney General considered a full page newspaper advertisement by the Madera Union High School District placed one day before a school bond election. The writer of the opinion concluded: "Viewed as a whole, the advertisement cannot properly be held to be a publication primarily designed to educate the voters as to the activities carried out by or the conditions of the schools of the district. ... The style, tenor and timing of the advertisement placed by the board of trustees points plainly to the conclusion that the publication was designed primarily for the purpose of influencing voters at the forthcoming school bond election." (At pg. 114) Stanson noted that certain specific actions were clearly prohibited. These included using public funds to purchase bumper stickers, posters, advertising floats, television or radio spots and campaign literature prepared by private proponents or opponents of a ballot measure. (17 Cal.3d at pg. 221) In the case of Mines v. Del Valle (1927) 201 Cal. 273, 275-277, the court rejected the use of public funds to pay for printing cards, banners, automobile windshield stickers and banners, labels, circulars and postal cards, and for newspaper ads and the construction of a float, to support the approval of a bond measure. In California Common Cause v. Duffy (1987) 200 DAB/Ibm [Stanson.Mem] 5 Cal.App.3d 730, 747, the court struck down the use of police officers in uniform and department equipment to distribute postcards opposing the retention of Chief Justice Rose Bird. Similarly, the court in People v. Battin (1978) 77 Cal.App.3d 635, invalidated the use of county employees on public time for partisan campaign work. It has been suggested that these restrictions would prohibit the adoption by a city council or a county board of supervisors of a resolution in support of or in opposition to an election issue. In that regard the Attorney General concluded at 42 Ops.CaI.Atty.Gen. 25 that Tulare County could not mail to voters information relating to the county's position on pending welfare legislation. However, it seems that the mere act of taking a position in favor or in opposition to a public question would not be an expenditure of public funds on an election issue as proscribed by the law, but would be the actual public duty of the public agency. In this regard the court in League of Women Voters v. Countywide Crim. Justice Coordination Com. (1988) 203 Cal.App.3d 529,560 held: "We adopt the view that the simple decision [to endorse a ballot measure], made in the regular course of a board of supervisors meeting which is open to the public and thus the expression of citizens' views, to go on record with such an endorsement in no event entails an improper expenditure of public funds. While it may be construed as the advocacy of but a single viewpoint, there is no genuine effort to persuade the electorate such as that evinced in the activities of disseminating literature, purchasing advertisements or utilizing public employees for campaigning during normal working hours. By the same reasoning, the use of a regularly scheduled board of supervisors meeting to make such an endorsement would not involve reportable campaign expenditures." In keeping with the specific restrictions outlined in Stanson, the Legislature has provided specific authority for local legislative bodies to use public funds in the preparation of arguments for or against a ballot proposition. Elections Code ~9219 specifically authorizes a city council to submit an argument against an initiative measure. In addition, Elections Code ~9282 provides in pertinent part: "The legislative body, or any member or members of the legislative body authorized by that body, . . . may fIle a written argument for or against any city measure. " In summary, officials may not use public money in support of or in opposition to a ballot measure. Certainly, they may not use public time, public equipment or the public influence of the agency to support or defeat an electoral question. This must be carefully watched at all levels. We, of course, understand that the City and its officers may feel that an election issue is of such import that if all the facts were known, the electorate would understand the issue more clearly. The information dissemination function of the City is not prohibited by these restrictions, DAB/tbm [Stanson.Mem] 6 ( r but the line between information dissemination and attempting to influence the electoral process is very thin, and crossing over this line must be carefully guarded against. The penalty for the violation of this principle is not only personalliability for the funds expended, but also possible criminal prosecution pursuant to the statute quoted at the beginning of this memorandum. ,We therefoce suggest that extreme caution be employed, to guard against ccossing that line. As a result we suggest that the City Council announcement section of the meeting of the Mayor and Common Council not be used foc that purpose. If a Councilmember desires to discuss his oc her support for oc opposition to a particular ballot measure, he or she should leave his or her place on the dias and speak at the public microphone during the public comments portion of the meeting. Certainly by being elected to the Council, a member does not lose his or hec First Amendment free speech rights, and may speak out on any issue. He or she, however, may not use public funds, public employees, public time or public equipment to make those statements in support of or opposition to a ballot measure, in any way different than a private individual would be allowed to do so. ~1'W?~'tZ. ) ~Dennis A. ~:~' Sr. Asst. City Attorney cc: Rachel Clark, City Clerk David Kennedy, City Treasurer Shauna Clack, City Administrator All department heads DAB/Ibm [Stanson.Mem] 7 r CITY OF SAN BERNARDINO INTEROFFICE MEMORANDUM TO: Mayor and Common Council FROM: James F. Penman, City Attorney DATE: August 2, 1996 RE: Use of Public Funds or Public Time for Political Campaigns COPY TO: Rachel Clark, City Clerk; David C. Kennedy, City Treasurer By memorandum dated July 10, 1996, we reviewed the law on the use of public funds or public time for political campaign activities. We have now received a 1994 report prepared by the League of California Cities that goes through the same issues in a question and answer format, which we felt may be helpful and informative. I ./~ MES F. PENMAN ity Attorney DAB/Ibm [Campaign.Mem] California Cities Work Together League of California Cities 1400 K STREET . SACRAMENTO, CA 95814 . (916) 444.5790 .- . J. ..... " :.... ..... ..... ..... I.."" , , August 1, 1994 LEGAL ISSUES ASSOCIATED WITH CITY PARTICIPATION IN BALLOT MEASURE CAMPAIGNS Important policy decisions affecting the cities of California are increasingly being made by the electorate through the initiative and referendum process. Whereas cities have specific statutory authority to participate in the legislative process at the California Legislature and Congress (Government Code section 50023),1 their authority to participate in the initiative and referendum process is more limited. . What role may cities and their officials play in the initiative and referendum process? The following series of questions and answers provide some general guidelines. A city official should always consult with the city's attorney concerning the propriety of any given course of conduct. USE OF CI1Y RESOURCES TO SUPPORT OR OPPOSE BALLOT MEASURES 1. May cities and the League of California Cities analyze the effect of ballot meDSUIf!S 011 cities and publicize this infornwtion? Yes, cities and the League may use public resources to objectively evaluate a ballot measure's impact on municipal government.2 The results of such fair and objective analysis may be then made available to the newspapers, advocacy groups and others, who may make use of the information if they choose.3 2. May cities COIIITibute public funds to ballot measIIJ'e canrpaigns which have alreDdy qualified for the ballot? No, the courts have determined that allowing government to "take sides" in ballot measure campaigns gives one side an unfair advantage which might distort the electoral process.4 Also, using public money to support a given position on a ballot measure may result in a taxpayer's money being used to support a position with which the taxpayer does not agree. This kind of "forced speech" may run afoul of the first amendment.s 1 Although the decision was good news for the county, some attorneys have expressed reservations about relying on the decision for the proposition that local public entities may use public resources to develop just any kind of measure for the ballot. Of course, public agencies have prepared certain kinds of measures for the ballot (bond measures and the like) for many years. 8. May a ciJy c:oundl pass a 1f!30lutiOll supporting or opposing a ballot 1IIeIISIIIe? May this resolution ruge people to vote a given lWlY 011 a ballot 1IIeIISIIIe? The simple decision to go on record in support of a ballot measure has been held to be a permissible expenditure of public resources.u The decision should be made at a regular council meeting which is open to the public and hence is open to the expression of citizens' views.13 Whether such a resolution could also urge citizens to vote one way or another is a difficult issue. The Attorney General interprets the various court decisions in this area as precluding public agencies from attempting to influence citizens' vote.14 Although reasonable minds may disagree on what .the law allows, councils may want to evaluate what such an exhortation addS to a resolution and whether what the exhortation adds is worth the risk someone may challenge the exhortation as impermissible. INDMDUAL ELECI'ED OFFICIALS 1. May an individual elected ojJidal toke a position 011 a ballot 1IIeIISIIIe? Yes, a public official does not give up his or her first amendment rights to speak out on governmental matters upon being elected to office.15 Moreover, a council may not take punitive action against a council member who expresses a view during a council meeting.16 However, an elected official should not use city resources to "campaign" for or against a given ballot measure.17 At least one city attorney believes, however, that it would not be impermissible "campaigning" for a city council member to express his or her views on a ballot measure in correspondence with constituent,18 That city attorney also cautions his council members to keep Proposition 73's provisions on mass mailings19 in mind whenever the council members communicate with their constituents.20 2. May an e1eded ojJidal c:onJribute his or her campaign funds to qualify, suppoTt or oppose a 1IIeIISIIIe for the ba/Jot or support or oppose a qualified initiative? Yes, an elected official may use his or her campaign funds to qualify, support or oppose a ballot measure.21 This includes contributions to ballot campaign committees controlled by another candidate.:!2 Such contributions must be reasonably related to a political, legislative or governmental purpose.23 3 . . I " working hours.34 However, some city attorneys believe public employees are entitled to place signs or stickers in their offices or carrels which set forth their position on a political matter. 2. May a publU; employee ask his or her fellow publU; employees for contributions to a ballot 1tJelISU1'e ctITIIpfIign? Under Government Code sections 320535 and 3209,36 local public. employees may not solicit contributions from their fellow employees unless: a. The solicitation is made to a significant segment of the public in which the fellow employees are included; or b. The funds are solicited to promote or defeat a ballot measure affecting the rate of pay, working hours, retirement, civil service or other working conditions. Although the code sections do not specify, such solicitation should. J:!.ot occur on city time or use city resources.37 3. May a local publU; employee wear his or her uniform when engaging in political activities after hours? No, this is specifically prohibited by Government Code section 3206.38 4. May a publU; employee respond to a request for information on a publU; agmcy~ analysis of or position on a ballot 1tJelISU1'e? Yes, a public employee may respond to such a request as long as the employee provides a "fair representation of the facts.,,39 This response may include speaking to public or private organizations interested in the public agency's position.40 . PENALTIES FOR IMPROPER USE OF PUBLIC RESOURCES 1. What are the potential consequeru:es of improperly using publU; Tf!SOIITCi!3? An individual who improperly uses public resources may have to reimburse the agency for the value of the resources used.41 The courts have said public officials must use "due care" in authorizing expenditures of public funds or be subject to personal liability for improper expenditures. Factors bearing on the existence of due care include whether the expenditure's impropriety was obvious, whether the official was alerted to the possible invalidity of the expenditure, and whether the official relied upon legal advice the expenditures were not improper.42 5 ( ,. 5. list ~ 17 CaI. 3d al 219, 130 CaI. Rptr. al 706 (.Ia tile iDI....I cue, -":r, "" Deed DOt _ tile __ alII&tilulioaal queslion lbal would be pooed by aa uplic:il Icplative aulborizatioo ol tile use ol public _ ror putiIaD campaipift& . . . '"), auoted in 1.ea1Ne of Women Voten v. Countvwide Crilllinal Justice rlVWr'linatioa. Commiuee.. 203 CaI. App. 3d 529, 250 CaI. Rptr. 161 (2d DisL 1988), leY. denied _ber 23, 1988. liss..!!I2 Mountain SIalell.eal Poundalion v. De....r School District. 459 P. Supp. 3S7, J60.61 (0. Colo. 1978) (probibiti... oa alII&tilulioaal pouads, a scbool dillrict from aUlllorizing lbe expenditure ol public funds to der...1 a propo<cd eoaatilutioaal _meDI). iLIII2 AncIenon v. Rnotno. 376 M.... 178, _, 380 N.E.2d 628, 639 (1978) (a COlIUItoftWOOIlb boo a compelling i/lte- is MI1Irinc thet a _DtinJ miDority ollUpll)"'" is DOt compelled to fuwu:e the exp_ ol vieM with - they cIiaagree),1IlIlSIl dianl-..... 439 U.s. 1060, 99 S. Ct. 822, S9 L Ed. 2d U (1979). IbI1..s Alabama L"bertarian Pilrtv v. Otv of Binninlflam. 694 P. Supp. 814, 817 (N.D. Ala. 1988) (upboldiD& on """"titulioaalpounds, a city's use ol public funds to pay for adYertisemenla for ballot .....u..... where city's adYertiain& campaign _ DOt .poIitical or ideoJosi<aI in nature"). 6. list ~ 17 Cal. 3d al 21t}.l1, 130 CaI. Rptr. al 700 (referring to tile expeodi...... ol sWf.time and state ....",...... to promote Ibe passaF ollbe bond act). liss...III2 PcoaIe V. BalliD. 77 Cat App. 3d 635, 650, 143 CaI. Rptr.731, 740 (4th Dial. 1978) (a COUDty ouperYiaor'o divcnion ol COWlty sWf tilllC ror improper political J>IIlIlOIC" constituled a criminal misuse ol public moni.. under Penal Code ocction 424), cert. denied. 439 U.S. 862, 99 S. a. 183, sa L !!d. 2d 171 (1978). Ill!1..s Banloloh v. Arnold. 112 N.CApp. 190, , 43S s.E.2d 109, 113 (N.CApp 1993) (local JOYCmmcnl may expend public fUDcIa 10 creale support for qualified ballot _re). 7. list CalIfornia Leplative CounscI OJ>. No. 15423 (September 18, l\lllO) Cia _ ol the fa thet the ~'a open_ are, to a certain degree _ by d.... paid by cities, il is our opinion thel tile rule ol .... . stated in ~ L..Ml!lL Il!I!I!o prohibiling tbe _ of public funds ror polilial1 pUlpllOCS is appliablc to lbe ~ of California a..... to tile exlenltbe League..... money re<ciYcd from lbe ci...... . . [ror tbis purpooc)."). 8. ~ California Legislalive Counsel 01'. No. 15423 (September 18, 1\lllO). 9. In re Philli", v. Mauer, 67 N.Y. 2d 672, 499 N.Y.S. 2d 675, 490 N.E.2d 542 (1986) (advertisemeDI u'ling citizens to -VOte ~. on bond measure is impermissible). 10. ~ St'nson. 17 Cal. 3d al m, 130 CaI. Rplr. al 708. ~ City Attorney's OpinioD by JoIID Witt, Oty Attorney of San Diego. October 26, 1988 (which contains an extensive discussion on tbe difference between impermissible -promotional- and permissible -informational- material. 11. ~ LeallUe of Women Voters v. Countvwide Criminal Justice Coordination Committee. 203 Cat. App. 3d 529, 2SO CaI. Rptr. 161 (2d m... 1988). 12. M. at 560, 2SO Cat Rptr. at 181; ~ Keller v. State Bar of California. 496 U.s. I, 12, 110 S. Ct. 2228, 2235, 110 L Ed. 2d 1. 13 (June 4, 1990) ethe government must take substantive po6itions and decide disputed issues to pem . . . goyemment omciall are expected 81 I part of the democratic proceSl to represent and espouse the views of a majority of their constituents. With countless advocates outside of the government seeking to inOuence ill policy, it would be ironic if tbo5e chargCd with making governmental decisions were not free to speak for themselves in the proceu.-j Miller v. California Commission on the Status of Women. 1S1 Cat. App. 3d 693, 701, 198 Cat. Rptr. 877, 882 (3d Dist. 1984) (noting that if government cannot addrelS controYeJ1iial topics, it cannot govern), anoeal dismissed. 469 U.S. 806. IOS S. Ct. 64, 83 L !!d. 2d 15 (1984). See also Stanson. 17 Cal. 3d al 221 (.it is Fnerallyaccepted thaI a public aFney pwsucs a proper 'iDlonnationaJ' role when, . . . rcqUC$ted by a public or private OrpnizatiOD, it authorizes an agency employee to present the clcpartment's view or, bal101 propooal al a meeling olsuch organization"); 42 Opo. AlI'y GeD. 25, rt (1963) (COUDty'.1adt of power to send voters information on pending lepJation does not prewnr county from giving information or ruommendatioM when 10 requested by citizens or prea); IGOR ("..DUnN Counsel v. Public DisdO&Ufe C..mnmission. 93 Wash. 2d 559, 611 P.2d 1227 (1980) (upholding .n endonomenl). 13. See LeanJe of Women Voters. 203 Cal. App. 3d at 560, 250 Cal. Rptr. at 181. 14. See 73 Opo. All'y Gen. 250, 251).58 (1990) (concluding a localaFncy may use public ....",n:.. to draft iniliative or referendum petitions). 15. ~ City or F.irfield v. SutlCrior Court. 14 Ca\. 3d 768, 780-82, 122 Cal. Rptr. 543, 5.5G-51 (1975) (city councilman bas not only a righ~ but an obligation" to discUSl issues of vital concern with his: constituents). ~ Colondo Taxoa\'elS Union. Inc. v. Romer. 750 F. Supp. 1041, 1045 (D. Colo. October 31, 1990) ("There is a difference be.....n the conduct of public officials in speaking out on controversial political issues and their use of governmental power to affect the election..j, aooe.al dismissed 963 F.2d 1394 (10th Cir. 1992). 7 /. .J. ( p<>IitlmIllClMlic:o oI....le IIIlCIIocol employteo _ priacipoI ClIlploymeal ia IiDuced ill wboIe or ill pori by [redcraJ) ...... or .....IL ') 33. See _erallv Peode v. Bollia. 77 Cal. App. 3d 635, 143 CaI. Rptr.731 (4th DiIt. 1978) (-... crimiIIaI pnlIOCIItioa 01 COWlty _Moor ror _II public _ ror improper poIilic:ol purpcoa). lisuIIlI Scrieo 01 Cty Attomeys 0pilIi0cIa by John Wil~ Cty Allomcy 01 SIll Diqo, ..p"ml><r 29, IIl86, AUJUII, 20, 1!ll1S, Pcbnouy 2O..1!ll1S, Aupot7, 1981, JUDe 20, 1975 IIIlCI Aupt I, 1967 (_ie II a pockel ham the Leape). . ' 34. li52 CaI. Gov'I Code f 32117 ("Any city, COWIty, or city IIIlCI COWIty c:barter or, ill the 0_ oIa dwter plOYilion, the pel'lliq body 01 any Iocol _1IIlCI1II)' _ DOIl11bjcct 10 Sectioa 19251 by _1iIIli1l rulellIIlCI te.....lioao, may ptoIubil or otherwile _ the rolJc>wiq: (a) 0fl'1CC.. and empIoyea .....JIacla poIilic:olllClMty duriq worIdac boull{; 1IIlCI) (b) PoIilic:olllClMliea OIIlbe "",_ 01 the Iocol aaeacy.'). 35. California <loYcmmenl Code JeClioa 3205 pt<lYicIa: An orflCCr or employee 01 a Iocol aaeacy .....i not, cIitectIy or iIIdirectIy, IoIiciI poIilic:ol runda or COIltnbulioao, _qly, ham other _ or employees 01 the IocaJ _ or ham pctIOIII 011 the employmelll iii.. 01 the Iocol _. NotIJiq Ia tIlia _ pro/ttbi.. aD oIlicer or oatpIoJee oIa IocaJ aaeacy ham commllllialtiq Ihnlucb the mail or by other _ teq_ ror poIilic:ol _ or COIltribuliollS 10 a 1ipil'.....lsepenl 01 the public wbkII may iDcIudc _.. or emploJea 01 the Iocol aaeacy. CaI. Gov'I Code f 3205. 36. California Gc::M:mmcnl Code IeCtion 3209 provides: NothillJ in this chapter prevents an olfM:Cr or employee of . state or local .&e1K)" from soliciling or teCC:iving political rundo or contnbullons 10 plOlIlOIe the JlIIIlIF or doreal oIa ba110t measure which Vt'OUld affcet the ratc of pay, hours of wort, retirement, civillCrvicc, or other working condillons or orflCC.. or omploJea 01 sudl ltalo or Iocol aaency ucept IIlaI a ....Ie or Iocol aaeacy may prohibil or Iimilouch activilies by i.. ompl."... duriDg lbeir worIdac bou.. IIIlCI may pro/ttbil or Iimil cntry into governmental off'lCCI for aucb PUrpolCl durin, wortial houn. CaI. Gov'I Code f 3209. Y1. See ..nerallv POODle.. Bollin. 77 Cal. App. 3d 635, 143 Cal. Rptr. 731 (4th Dial. 1978) (sua:eaM crimiIIaI prcucution of county supervisor for misusing public funds for improper political purposes). lisuIIlI Cat. Gov't Code I 3'JIJ7 (-Any city, county. or city and county charter or, in the absence of . charter proviIion, the goveminC body of aay Ioca1 agency and any agency not subject to Section 19251 by establishillg rules and regulatioDli, may probibit or otbenrile ratrict lbe rollowing: (a) Omcers and empl."... engaging in polilical activity during worltillg hours[; and) (b) PoliticalllClMtics on Ihe ptemises or the local agency.'). 38. California <loYcmmenl Code JeCliOll 3206 says: No ofrM:Cr or employee of . Ioc:aI .FDq" abaU particif-te in political activities of any kiDd while in uniform. CaI. Gov'I Code f 3206. 39. See Stanson. 17 Cal. 3d al 221, 130 Cal. Rptr. a. 707~. 40. M. 41. ~ 17 CaI. 3d 01 226-227, 130 Cal. Rptr. al 711 (f,"ding that 'public orflCiaJs m.... .... due cate, i&. reasonable diligence in authorizing the expenditure of public funds. and may be subject to pcrsonalliability for improper expenditures made i4 the ab&cnce of due care-). 42. ~ 17 Cal. 3d 01 226-227, 130 Cat. Rptr. 01 711 (finding thaI 'public orflCiaJs m.... .... due ..te, Ls. reasonable dili&ence in authorizing the expenditure of public fundi., and may be subject to pcrsonalliability for improper expenditures made in the absence of due care-). 43. See ..n.rall. Tenwold. .. Countv or San Dio20. 14 Cal. App. 4th 100, 17 Cal. Rptr. 2d 789 (41h Dill. 1993). 9 California Cities WorK Together iO/7'/96 . League of Ca,lifornia Cities 1400 K STREET . SACRAM~Jij~~~1?~t). (916) 444-5790 Enlp.red mto Record It ,...C,,,,,":liiCmvOevCms Mtg: J. . ...IF . ..... ..... .... ....a ...-- 5:.3 (fdv.-e ct~ City Clerk/CDC Secy City of SIn Bernlrdino August 1, 1994 LEGAL ISSUES ASSOCIATED WITII cm PARTICIPATION IN BALLOT MEASURE CAMPAIGNS Important policy decisions affecting the cities of California are increasingly being made by the electorate through the initiative and referendum process. Whereas cities have specific statutory authority to participate in the legislative process at the California Legislature and Congress (Government Code section 50023),1 their authority to participate in the initiative and referendum process is more limited. . . What role may cities and their officials play in the initiative and referendum process? The following series of questions and answers provide some general guidelines. A city official should always consult with the city's attorney concerning the propriety of any given course of conduct. USE OF CITY RESOURCES TO SUPPORT OR OPPOSE BALLOT MEASURES 1. May cities and the League of California Cities analyze the effect of ballot metJ.flIreS on cities and publicize this information? Yes, cities and the League may use public resources to objectively evaluate a ballot measure's impact on municipal government. Z The results of such fair and objective analysis may be then made available to the newspapers, advocacy groups and others, who may make use of the information if they choose.' 2. May cities contribute public ftmds to ballot measure campaigns whidJ have aIreody qualified for the ballot? No, the courts have determined that allowing government to "take sides" in ballot measure campaigns gives one side an unfair advantage which might distort the electoral process! Also, using public money to support a given position on a ballot measure may result in a taxpayer's money being used to support a position with which the taxpayer does not agree. This kind of "forced speech" may run afoul of the first amendment.' 1 Y3 /IJ /7/1" . . . . 3. Maj citiD use city staff, equipment and supplies to generate promotionDllfIIItt!dt* - bt!haJf of baOot measures which 1Iave a1reDdy qualified for 1M ballot? . No, this approach suffers from the same infirmity as contributing public money to a ballot measure campaign: it uses public resources to give one side an unfair advantage in the campaign. 6 . . 4. May 1M League of Califomia Cities conJribule money or use its staff Tr!3OUICeS to odvoazte suppon for or opposition to ballot measures? The courts have not specifically ruled on this issue, however, the California Legislature's attorney has concluded that allowing the League to play this role would impermissibly permit cities to do indirectly what they cannot do directly? The League makes it a practice to follow the same rules cities must follow. 5. May cities form a nonprofiJ corporation and finaru:e its operatiolU with city funtlsfor 1M J1IUPOSe of qualifying an statewide initiative meosure which relates to tire day-to- day furu:tions of every city in tire state? The attorney for the Legislature was asked this question in 1980 and answered "no." Again the theory was cities cannot do indirectly what they cannot do directly.B The money used for such an effort must not come from public funds. 6. What is the difference between impermissible "promotional- and permissible "infomuItionDl- materiD1? There is no hard and fast rule for judging whether a communication is promotional rather than informational. Material which exhorts voters to "vote yes" is, of course, promotional; however, documents which do not contain such exhortations may nonetheless be considered promotional9. Some of the factors courts look at in determining whether a publication is a "fair presentation of the facts" are the publication's style, tenor and timing. to The standard is a strict one: the publication must be purely informational to pass legal muster. When in doubt, leave any questionable language out. 7. Do the courts distinguish between the use of public resources to develop a meosure for the baIIot and the use of public resources to mppon a 17U!/lSt./Te ana it has qualified? One appellate court has allowed Los Angeles County to use public resources to develop a criminal justice measure for the baIlot.u The measure was proposed by a committee formed by the county to study certain procedural changes in the criminal justice system. The court determined that, as long as the activities did not involve advocacy of a single viewpoint with the object of influencing voters on the issues, public funds could be spent formulating and drafting the initiative and obtaining sponsors for it. 2 Although the decision was good news for the county, some attorneys have expressed reservations about relying on the decision for the proposition that local public entities may use public resources to develop just any kind of measure for the ballot. Of course, public agencies have prepared certain kinds of measures for the ballot (bond measures and the like) for many years. , , 8. May a city council pass a resohltio-l supponing OT opposing a bal10t metISU1'e? May thU resolution urge ~ple to vote a given way 011 a bal10t metISU1'e? The simple decision to go on record in support of a ballot measure has been held to be a permissible expenditure of public resources.1% The decision should be made at a regular council meeting which is open to the public and hence is open to the expression of citizens' viewsY Whether such a resolution could also urge citizens to vote one way or another is a difficult issue. The Attorney General interprets the various court decisions in this area as precluding public agencies from attempting to influence citizens' vote.14 Although reasonable minds may disagree on wha~ the law allows, councils may want to evaluate what such an exhortation addS to a resolution and whether what the exhortation adds is worth the risk someone may challenge the exhortation as impermissible. INDMDUAL ELECI'ED OFFICIALS 1. May an individual eJected offidDI take a position 011 a ballot metISU1'e? Yes, a public official does not give up his or her first amendment rights to speak out on governmental matters upon being elected to office.lS Moreover, a council may not take punitive action against a council member who expresses a view during a council meeting.16 However, an elected official should not use city resources to "campaign" for or against a given ballot measure.17 At least one city attorney believes, however, that it would not be irnpermissible "campaigning" for a city council member to express his or her views on a ballot measure in correspondence with constituent.18 That city attorney also cautions his council members to keep Proposition 73's provisions on rnass mailings19 in mind whenever the council members co=unicate with their constituents.20 2. May an elected offidDI conJribuJe his OT her campaign funds to qualify, suppolt or oppose a measure for the ballot or support OT oppose a qualified initiative? Yes, an elected official may use his or her campaign funds to qualify, support or oppose a ballot measure.21 This includes contributions to ballot campaign committees controlled by another candidate.22 Such contributions must be reasonably related to a political, legislative or governmental purpose.Z3 3 .' However, there may be federal income tax implications associated with using campaign funds in this manner. Candidate campaign funds are tax-exempt under Internal Revenue Code section 527 only when used for "exempt functions.":l4 Such purposes are generally limited to expenditures for a candidate to get elected or for officeholder purposes once a candidate is elected.~ . 3. How should aICh conJributioru from CIlIPIJNli&n funds be rP:pOded? The FPPC says the recipient of the funds (the ballot measure campaign committee) should report the receipt of funds as contributions received; the local elected official's campaign committee should report the contribution as an expenditure made.26 S. May an elected 10cal ofJidal rrdse money a.r an intennediIJ1y for a lHz/1ot ~ CQIfI]JQign? According to the FPpc, a local elected official may act as an intermediary for a ballot measure's fund raising efforts in the same manner and subject to the same obligations and requirements as any other individual.Z7 An intermediary is an individual who delivers a contribution to a committee from another person. :za The official may even serve as an intermediary for making contributions to a ballot measure committee controlled by a candidate.29 6. ~ there any other restriction.s in the Po1iJical Refomr .Act that mi&ht restrid a ToctIl ererted ofjicial's partidpation in lHz/1ot ~ campaign.s? The FPPC notes that a local elected official who also serves as an appointed, voting member of another agency (~, a Local Agency Formation Commission (LAFCO), special district board, joint powers authority or regional planning agency) may, under certain circumstances, be prohibited from accepting, soliciting or directing contributions on behalf of a ballot measure committee.30 EMPLOYEE ACTIVITIES 1. May a public employee suppmt or oppose baIIct measut'!!S? like an elected official, a public employee does not give up his or her constitutional rights upon joining a public agency.31 This fact is reflected in Government Code section 3207, which says that, with certain exceptions, no restrictions may be placed on the political activities of public employees.32 Public employees should not, of course, use public resources (incIudinJ their time on the job) to advocate a particular position on a ballot measure. As a result, state law allows cities to prohibit or restrict 1) political activities on city property and 2) officers and employees engaged in political activities during 4 working hours.34 However, some city attorneys believe public employees are entitled to place signs or stickers in their offices or carrels which set forth their position on a political matter. 2. May " public employee asIc his or 116 fellow public employet!s for conI1ibudoiu to " ba110t 1I'U!Q.SUn! cmrrpaign? Under Government Code sections 320535 and 3209,36 loc:al public employees may not solicit contributions from their fellow employees unless: a. The solicitation is made to a significant segment of the public in which the fellow employees are inc:1uded; or b. The funds are solicited to promote or defeat a ballot measure affecting the rate of pay, working hours, retirement, civil service or other working conditions. Although the code sections do not specify, such solicitation should ~ot oc:c:ur on city time or use city resources.37 3. May " local public employee wear his or 116 uniform when etf8aging in pc>1itirnl activities after hours? No, this is specific:ally prohibited by Government Code section 3206.38 4. May " public employee respond to " request for infonnation 011 " public agency:J analysis of or position 011 a ballot meosure? Yes, a public employee may respond to such a request as long as the employee provides a "fair representation of the facts."J9 This response may inc:1ude speaking to public or private organizations interested in the public agency's position.40 . PENALTIES FOR IMPROPER USE OF PUBLIC RESOURCES 1. What an! the potenJial consequences of improperly using public 1'f!;S()fITCeS? An individual who improperly uses public resources may have to reimburse the agency for the value of the resources used. 41 The courts have said public officials must use "due care" in authorizing expenditures of public funds or be subject to personal liability for improper expenditures. Factors bearing on the existence of due care include whether the expenditure's impropriety was obvious, whether the official was alerted to the possible invalidity of the expenditure, and whether the official relied upon legal advice the expenditures were not improper.41 5 " Also, an individual charged with improper use of public resources may have to pay not only his or her own attorneys fees, but also those of individual who is challenging the use of resources.43 As a matter of public policy, the courts have refused to allow public entities to reimburse these attorneys fees.... Finally, improper use of public resources can be a criminal offense.45 CONCLUSION Public officials and employees have many ways to exercise their right to promote or oppose ballot measures. The key is not to use the public's time, money or other resources to do so. Public resources may, however, be used to provide objective analysis and information concerning proposed ballot measure. Charges that an agency or individual has misused and miuppropriated public resources are extremely serious. Consequently, when an activity is the least bit questionable, it is best, in the League's view, to err on the side of caution. j:\lcp1\bm\JDiIc\ballo12.ppr L CioYcmment Code scctioo 50023 providea: .- The IcgjllatM body or a local .acy, dilcctly or _II> a repIOICDtatiYe, IDlIY allcDd tile Leplarure aDd ~ aDd any _neca tIlereof, aDd p.....,ol iDronnatioll to aiel tile puuae of Icplatioll wIlic!l tile IcplatiYe body dce... be..liciallo tile local .acy or to prewIll tile puuae of Icplat;OIl wIIich tile IcplatM body dce... detrimcDlIIto lite local .acy. The IqialatM body of a Ioca1 1gency. directly or throu&h I repraeatltive, may meet with repracatativa of e.xec:uciw or adminiltntiYe agcncica of state, (ederal. or local acwenuneat to present iDCormatioa requeltial actioa which the IcgillatNe body deema beneficial to. Of oppoIiDlaction deemed dc:trimeatal to, sucb local agency. The <0&1 aDd expo... incideDI tIlereto are proper <barges apiDIt tlte local .ocy. CaL Gov't Cod. S SOOZl. ~ Leha.. v. City and Couoty of San Prancisco. 30 eal. App. 3d lOSl, 106 CaL Rptr. 918 (lit Diot. 1m) (upholdiDC SaD PruciKo'. c:oatributioalto tbe Leapc of CIIiComia Cilic:a uadcr GovcmmoDI Code - SOOZl), aoocal dismissed 4\0 U.s. 962, 93 S. Ct. 1445, 3S L Ed. 2d 698 (1973); H.- V. IC.'o_~ 316 MidI. 443, 2S N.W.2d 7Ir1 (1947) (uplloldiDc ge..raIly a city'. ability to c:oatribute lIIOIIicIto a Dluoicipalleape wIlicIl ClIp... iD Jobbyinc). :z. ~ Stanaon v. Mon. 17 CaL 3d 206, 220, 130 CaL Rptr. 697, 707 (1976) (d_iIIa wilh approvaJ, ""--10 Protect Public Punds v. Board or Education. 13 NJ. In. 179-llO, 98 A.2d 673, 676 (1953), wIlich P""'C"..od tile hlWd Icplativc aDd flKaJ authority P'"-- by locally autonomous KbooI boerdI to mate rc.uonablc cxpca4iturCS to pve WJtcI'I relevant facts to aid them in makiog In informed judgment when voting). 3. ~ ~ 17 ~. 3d It 22\ ..6, 222, 130 CII. RpIr. It 707 0.6, 7al (0. . ..... heli.... il ""uld be c:oatraty 10 tile public iDte_ to bar Imowlcdpbl. public agenc:iCl rrortl diadoaiDc relcvaDt iDConnatioll to tile public, 10 klIII u ..... diac",""re is r..U and impartial aDd docs not amounl to improper c:ampaicn actMty." public agenciCl IDlIY aeocraJIy publillt a "fait preoentatioll of racu relevant to an electioD DlllIcr . . ."). 4. ~ ill. al 217, 130 CaL Rpir. at 10S (1976) (Caliromia DeportDl.ol of Parlts aDd R<<reatioll could 001 apcnd public IDODC)' to prepare promotional Dllterial aDd pay ror opeaItell expe_ to oupport a 1974 port __te). liE I!i2 MinCl v. Del van.. 201 CII. 273, 257 P. 530 (19Z7) (a city public service CXlIIIJ2li5Iion could DOC speed public _10 obtain a favonble vote oa . bond meuure to COftitruCt In ele.ctric:aJ system). 6 " :s. liE2 :i!IIlI\la. 17 c.L 3d al 219, \JO c.L Ilptr. al 106 ("Ia the iIlalaal cue, -"r, - _ not _ !be __ coaatilUtioaal qucatioG lhal M>UIcI be pooed by ... OIplicillcplatMl authoriza_ 01 !be _ 01 pu\>Ik: _ ror partiIaa c:ampaipiftl . . ." auoted in Lenue of Womell Voters Y. Countvwide Criminal Justice Coordiaatioll Committee.. 203 c.L App. 3d 529, 250 CaI. Rptr. 161 (2d Diot. 1988), roY. c1cnied N~r 23, 1988. lS.JlI2 Mountain StaleS ~ Poundation v. O<on.." Scllool Dimi<:t. 459 P. Supp. 357, 360-61 (D. Colo. 1918) (plObibitiq. on coaatilulional poundI, a ",boo! district rlOm aUlhorizinl tbe expc:ndicure of publie rundl to c1erul a propo<ed coaaticulional __"). lisLIII!II ADcIcnon v. .......on. 376 M.... 178, _, 380 N.1!.2d 6211, 639 (1978) (a _Ib.... a COlIlpeUid.inte....ia-.me tbal a 4_1 miAority of raxpa,en in DOl COlIlpcllc4 to _ lbc ..,....--'.... 01 vieM willl -1Ilcy cIlupec), IIIIlSIl dimt:--t. 439 U.s. 1060, 99 S. Ct. 822, 59 L. Ed. 2d 16 (1m). I!!1..E Alabama Lbertari.aa PartY v. City 01 Rinnln.um... 694 P. Supp. 114, 117 (N.D. Ala. 1988) (upbolclinl. on COG&lilulional poWl4I, a city'a _ 01 publie rundl to pay ror __II ror balJot ......ute&, wbere cily's -rtiaiaI campaip ..... not "poIilical or iclcok>si'"' in ..lure"). 6. ~ ~ 17 ~I. 3d at 21G-ll, 130 Ca!. Ilptr. al100 (",rerrinc to tbc expc:n4i""" of stair "time and Slate IUOU""" 10 plOmote tbe pusap: oIlbe bond set). ~ PeooIe v. Banin. 77 c.L App. 3d 615, 6SO, 143 CaI. 1lptr.731, 740 (4tb Dial. 1918) (a oounty supcrviaor's diYenion of OOUIlty stall' time ror impn>pcr poUlicaI putpooa OOIlIlicuted a criminal misuse: of public: monies uo4cr P.na1 Code section 424), <:en. d.nied. 439 U.s. 862, 99 S. a. 183, 58 1. Ed. 2d 171 (1918). BlILs Banlololl v. Arnold. 112 N.CApp. 190, _, 435 s.1!.2d 109, 113 (N.CApp 1993) (IocaJ pemmenl may cxpencI publie runell 10 <reate support ror qualified ballol .......re). 7. liE2 California LcplatMl Couoscl Op. No. 1.S423 (Sept.mber 11, 1!1llO) ("In view of tbc rant tbal!be Lcape'a operaliool are, 10 a certain dcJrec _ by 4_ paid by citiCl, il in our opinion tbal tbc rule of law . staled in ~ l!o..Msl!L Il!1!I!. prollibilinc tbe _ 01 publie rundl ror poIilical purposes in applieablc to tbe Leacuc 01 California Clico ... tbc exlenllbe Leal"e lIIeI money re<ciwd rlOlll the cilies.. . [ror tllia purpoocl."). I. ~ Calirornia LcplatMl Cou_1 Op. No. 1.S423 (September 11, 1!1llO). 9. In '" PhillitlS v. Mau.r. 67 N.Y. 2d 672, 499 N.Y.S. 2d 675, 490 N.1!.2d 542 (1986) (a4vcniaemenl urJing ci_ to "vote yes- on bond measure is impcrmis&ible). 10. ~ Slanson. 17 Col. 3d It 222, 130 CaI. Rptr. at 'lIl8. E!I!2 Oty Anorney's Opinion by John Witl, Oty Attorney of San DicCO. October 26, 1988 (which contains I.D extensive dilcuaioa. an tbe differeDCC bc.rweca. impcJ'lllilr;ibIc -promotioaaJ. and permissible -informational- material. 11. See Leawc of Women Voters v. Counrv.nde Criminal Justice Coordination Committee. ::zo3 Cal. App. 3d 529,:ZSO c.L Rptr. 161 (24 Dilt. 1988). 12. M. at 560, 2SO Cal Rptr. at 181; see also Keller v. State Sir' of Caliromia. 496 U.S. I, 12, 110 S. Q. 2228, 2235. 110 L Ed. 2d 1. 13 (June 4, 1990) ethc government mUlt take substantive pcJ5itioas and decide disputed i&5ucs to govem . . . government officials are expected u a part of the democratic process to represent and espouse tbe views of a majority of their constituents. With countless advocates out5ide or the government sukinl to influence its policy. it would be iroaic if th05C c:hargCd with making governmental decisionl were Dot free to speak for themselves in the ProceII,-j Miller v. ~Iiromia Commission on th. Sta'UI or Women. 151 Col. App. 3d 693, 701, 198 Co!. Rplr. 877, 882 (34 Dill. 1984) (1IOtinC that if pemment cannot: addreu controversial topics. it cannot govern), 1'D0C3.1 dismissed 469 Us. 806, 10:5 S. a. 64, 83 L Ed. 2d 15 (1984). Se. also ~ 17 ~L 3d al 221 ("it in p:nerally ICCCpted tbat a pubfie ap:ncy punuca a proper 'informational' role when. . . . requested by. public or private orpnizarioll. it autbonze. all apncy cmplo)"cc to pracat tbc clepanment's vi~ or a ballot proposal at a mee'inl of such orpnization"); 42 Opo. An'y Gen. 25, rT (1963) (C:OUDIy'S - 01 power to send voteR in(ormation aD pending Icgislation does aot prevent county from zMng informatioo or recommcndations when 50 requested by citlzena or pf'e:s5); Kiner County Counsel v. Public Disclosure Commission. 93 WuIL 2d 559, 611 P.2d 1227 (19M) (upholding an endorsement). 13. See lea""e or Women Yot.... 203 ~1. App. 3d at 560, 2S(I Col. Rplr. at 181. 14. Se. 73 Opo. Alt'y G.n. 250, 256-58 (1990) (concludinla local as"ney may use public resources to draft initiatMl or re(erendum petitiOns). 15. See Otv of Fairfield v. Suoerior Coun. 14 ~I. 3d 768, 780-82, 122 ~l. Rptr. 543, 55G-51 (197Sl (city 00WICiImaD bas not only a right but an obligation to di.scu.s& issues o( v;tal concern 1lwith his C'Onitituents). See also Colorado Tama\'le1S Union. Inc. v. Romer. 750 F. Supp. 1041. 1045 (D. Colo. October 31, 1990) ("There in a dirr.rence be__n ,be oondllCl 01 public: omciali in speaking out on contrt)Yet$ial political issues aad their use of poemmcDtal power to atrec:t the elcctiolL j, anocal dismissed 963 F.2d 1394 (10th Cir. 1992). 7 16. liB "'-' v. -. 3lIS US 116, 17 S. 0. 339, 17 L IllI. 211235 (19l!6) (__ 01 o-p. - 01 .. _......t____oIlIIo___tIleVlotNoa...._IIiI_ . t......); ............ Y. _ 4:D P. Supp. 1101 (N.D. Olllo 1977) (II.- .. ~ cIt1- - . - 1_ 01 ilo Lm lor III&II::ia& delamatol)' IeIDUb 8bc:MIt c:ouDCi1... '. A); A_--' Y. u..r.... 31M) P. Supp. 6SS (DJU. 19'75) (.... eeuaor could 801 be ududed fI'C8 m..- becaUIC 01".111I .. c.ri.... . ..,..... c:auc:u LID). II!WlmMI tJIt ~ ---'" 532 P.24 32S (3d Cr. 1976). 17. See _roilY "-'" v. IIIInlII. 77 CoL App. 3d 635, 143 CoL lIplr. 731 (_ DIot. 1971) (, :: "M aIIIIIIIaI 1-: I ..... 0I.......1f "'p.;.ioarlbr .Ir ~... public _lbr..... . I, poIItIcoIl'-.: .). liILIIIIl CoL Cloo't Cadc I 32lI7 t:A1IJcIt1, -..ty, or city ODd ClDIIIIt7_or,1a tile _ 01. _,..-'~ ", tile... '..-,oIlIIJ- opII<f ODd IIIJ opII<f_ IUbject ... SoclIoa 19251 "" ..~'....... ODd, . . ._....,. pnl/IIlIt or MIl. -.. ~ tile ~ (a) 0fticeIS ODd _pIo,._ ........ in pali_ adivIty d..... -... bouft(; 0Dd1 (b) PoIItk:al aetMtIIlI OIl tile ,...- 01 tile - apDC)'.'). 18. liB Oty Altomcy'l 0piDi0a "" 101m Wilt, Oty /lJTDmc'f 01 SaIl DieFo 5eptember 9, 19l1ll ("ScptclIIbcr 9, 19l1ll Win 0piDi0a"). 19. liB CoL Oov't Code II lI204U (defiaitioa 01_ malJlD&). 8!IOOl (proUritioa 01_.....); 2 CoL Cadc 01 Rq. 1 18901 (re....._ iIIIpl-......tid& probibitioa). 210. liB Sopt'-"'r 9, 19l1ll Win 0piaIc0l, at 3-4. 21. liB California Pair Politicll Pnlctica Coalallalioa. .,,~ c... to Leap of CaIIComia Cities' Requm !'or W..- ~_...._ No. 1-92-561, September 11, 1992, at 3; 2 CoL Cadc 01'" 1l852S(b) (re....._ tatrietiall__t _idal..' electioa expo.... ODd oIIicebolder npeucs). . 22. M. Zl. Ill- 24. See 26 U.s.e. 1 527(c). :IS. 26 USe. 1527(e)(2) (defilli_ of 'exempt CuaetioD"). 26. ~ Calirornia Fair Politic:al Praetic:CI Commiaioa. RcapoaIc to Lea.... of California Oriel' RoqUClt ror Wormal AaiaWlcc No. 1-92-561. Seplember 11. 1992, a11-l. 27. liB California Fair PoIiti<al Praetia:I CommilliOll, R<spoue to Leap of California OtiCl' RoqUClt ror Informal Aai&tancc No. 1-89.069. February 1. 1990, al 4-5. 28. See Cal. GoY'I Code f 84302.5 (cIerulitioa 01 intermediary). 29. ~ California Pair Politi<al Praetic:ea C--:..."" .~ to Leap of California OtiCI' Roq_ for W..- _~iI........ No. f-39-669, Pebruary 1, 1990 al4-5. 30. M. ., s.o. 31. See Ballley Y. Washin..on TOOOl\Ihio HOSllital Dislrict. 65 CoL 2d 499, 55 CoL Rptr. 401 (1966) (hoopital district'l prohibition of cmploycca (rom panicipaitUsI in any ballot IDcuura pcrWninC to tbe district ... uDCOamtutioaaDy "",,"'rood); Rosenfield Y. Malc:om. 65 Cal. 2d 5S9, 55 CoL Rptr. 505 (1961) (boIdins lbol ClOUIIty - - a .......ty em~ on the pouD<ll that it diAcrea willi tbc CGlpIo)U'l acriYitiel)i Pan v. Civil Service Commiaioa.. 61 CaL 2d 331, 38 CoL Rptt. 62S (1964) ''''_'idalinsa ClOUIIty _ _ilio. ptOIlibiliq c:iviI servic:e _pIo,oa &om _p.o, in poIItic:aI activiriel), o.,,,,.,.lcd on other """,ncla. Joh""", Y. HamnlOll. 15 CoL 3d 461, 125 CoL lIplr. (1975). 32. Coliromia Qovcromenl Code lCctioa 32111 pt'O'Iidcc The Leplahlre fUlda thaI polilical activiriel at public emplo,oa are of Iipif'ICOIlI &tatewicIe concern. The p..,.;.ions of this chapter IhaU supellcdc III ~ OG thia IUbject in tile pocrollaw o( tbi&: 'tate or AnY dry, counry. or city and county c:battcr ~ u pto'Iided ill Sectioa. ~. CaI. GoV. Code f 32ll\. See .lso 5 U.S.e. f lSOO ~ (ka0Wll II the "Hatch AJ:t: tbe reclenllaw l'CItrictions OG 8 I .I , J . , , ,., poIIticIII OCliYitia oI",le aDd local cmplo)oeca _ prIadpoI .....1 ,_. ia _ ia _ or ia poIt bJ (fcdcrolJ _ or ........ ") 33. See .........IIY .......... v. Boni.. T1 CaL App. 3d 635, 143 CaL ltptr. 131 (4lb Dill. 1978) (~ _ plWCCUtioa 01 COUllI}' __ for ........ public _ for iDIpapcr poIIticIII JIUIPCI"O). lisuIIR Scriea 01 City AItonIcyS 0piDi0aa by JoIul Win. Cily Anomcy 01 SIll Die.,. SoIl. ....bcr 29, 1!1l16, A...... 210, 1lIlIS. februu,r'2lO, 1!18S, Aupot 7, 1981, ]uac 210, 1m aDd Aupt I, 1967 (_Ie U 0 pecbt hoeD lIIe Lape). . , 34. is! CaL Gov'. Code f 3'1J17 ~A1Jy cily, COUIlty, or city aDd COUIlty _or or, ia the __ 010 _ pIOViIioD. the .-mine body 01 uy local _ ud uy _ IIOt subject to Sccdoa 19251 by -......... ud "'pIDlioas, IDDy p.ollibil or otIlcrwilc _ lbe ~ (0) OtIicen ud cmpIoyea e'ppe ia poIIticIII ectIvity dariaJ worIliq Iloun{; aDd) (1)) PoIi.iceJ OCliYilia 011 the premiIc& 01 the local OCCacy."). 35. CelifOl'llie Gowmmc.. Code -.-0. 32115 proYida: All oIf'lCC. or employ<e 01 0 local _ ...... DOt, dbcctIy or iadUcctIy, IOIicit poIIticIII _ 01 coatribulioas, 1aIc>wiJIaIy, from otIlor oIIlcen or ~_ 01 the local _ or from pcnoao 011 the cmploymeD' _ oIllle local _. ~ ill tblo __ probibilI.. aIlk:or or empIc>jee 010 local _ from CIllIIIIIIuaialliIIa lIuoaP lbe IIIOiI or bJ otIlor _ ~ tor poIIticIII_ or "",tributioaa to 0 lipificut _. 01 the paIllic wIlidIlIIa)' Iadudc olIicen or _pit>,..... oIlbe local qcacy. CaL Gov'. Code f 32ll5. 36. Cellfo.... Gowl11meal Code _ J209 proviclcc Nocbin& ill this chapter prevents aD. olf"tcer or employee of . ltate or kx:al I&CDCJ' Crom soliciting or re.cciviD& political fuada or contnbutiou to promocc the puAp or deCeat of. ballot .......'" which ......Id affect lbe talc of pey, Iloun of 'OOrIt, ",_at, civil IOrvi... 01 otIler_e CODditioas of oIf'lCCn or employe" of _ IIDle 01 local _ cu:cpt 1Ile. 0 ItDte or local _ ...,. ptollibil or limit _ IClMtia by i.. emploJces cI1uiDJ lbeir worItiDc Iloun ud IDDy ptoIlibit OIlimi. ealry iDlo pcl11DlClllDl oIf'lCClI for sucII pu_ dUMe_elloun. CaL Gov'I Code f J209. Y7. See ..nerallv Pcoole v. Bollin. T1 Cat App. 3d 635, 143 CaL Rpll. 131 (4111 Diat. 1978) (sua:cafuI_ procecution of county supervisor rOt milUlinl public funds rOt improper political putpOK&). ~ Cat Gov't Code I 31J11 eAny city, county. or city aad county charter or. in tbe absence 0(. charter plOYision, the peminC body of AD)' local -&'CDcy Ind any agency not subject to Section I92S! by atablisbing rules and regulations, may prohibit or otberwile restrict lbe (oUDWinc: (a) Officcrs and employocs .npeine in poliliceJ aaMly durine woru'e houts[; and] (1)) Political activilics CD IlIe premila of the local all"ncy."). 38. California Gowrnme'l Code scctioa 3206 says: No officer or employ<e of 0 local qency ...... participale iD poII'iceJ 0CliYi1ics of uy ItiDcI wttiJc iD uniform. CaL Gov'I Code f 3206. 39. ~ S'an"'n. 17 Cat 3d at 221, 130 Cat Rplr. at m~ 40. !!!. 41. ~ 17 Cal. 3d al 226-227, 130 Cal. Rpll. at 711 (rUldi'e tIIa. 'public orrlCiels must use due ca"" i.s,. teUODDblc diligence in authorizing the expenditure o( public fundi. and may be wbject to pemooalliabilicy (or improper expmditurca made in the. absence of due care-). 42. ~ 17 Cat 3d at 226-227. 130 Cal. Rplr. at 711 (fi.dinS tllal 'public ofrlci.als mus' use due ca.... i.s,...-Ic diliaence in I.ulhorizina: the expenditure of public funds. ud may be subject to pcaonalliabUity ror improper expenditures made. in the absence of due care-). 43. See ..nerallY Tenwolde v. Countv of San Dieto. 14 Cat App. 4tb 10113, 17 Cat Rplr. 2d 789 (41h DisI. 1993). 9 . ". . 44. III T .. 14 CIL App. 4lIl1l1WU5, 11 CIL Rplr. 3d II 'lMo97. 45. III CIL ... Code II 'lZ.S(1I) (_ ol poIIIIc r-k to _ . polIIkaI- to o.ppart ......... - -); G4( . ........ '~ol"""r-k);-(-).IIuIIIlP . Y.- . 77C1LApp.3d61S,lGCIL.,...731 (4lIl DI& 1J'lI) (p- . ol-, . ...... r.. .t I . 'r aod._ ...... -,........... ... -, radIIIIa). . . 10