Opinion Regarding the Use of Public Funds to Disseminate Information on Ballot Measures   Prepared by Olson, Hagel, Leidigh, Waters & Fishburn LLP

December 17, 1999

GENERAL RULE OF STANSON v. MOTT.

We start with the general rule that a public agency can spend public funds only where authorized by law, as enunciated in Stanson v. Mott (1.976) 17 Cal.3d 206. While Startson ruled that public funds may not by used to advocate the passage or defeat of a ballot measure, it also acknowledged that governmental entities have the power to provide fair and impartial information to their constituents.

The Supreme Court fomad in Stanson that public Resources Code {}512 provides the Department of Parks and Recreation with authority to spend funds to provide the public with a "fair presentation" of relevant information relating to a park bond issue. The court stated that it believed "it would be contrary to the public interest to bar knowledgeable public agencies from disclosing relevant information to the public, so long as such disclosure is full and impartial and does not amount to improper campaign activity." (Id., at p. 221, note 6.)

The distinction between improper campaign expenditures and proper informational activities is sometimes difficult to discern, as the Stanson court recognized. However, with respect to some activities, such distinction is clear: it would be improper to use public funds to purchase such items as bumper stickers, posters, advertising "floats," or television and radio "spots," as well as to disseminate campaign literature prepared by private proponents or opponents of a ballot measure. On the other hand, a public agency may give a "fair presentation of the facts" in response to a citizen's request for information, and, when requested by a public or private organization, may authorize an agency employee to present the department's view of a ballot measure at a meeting of such organization. (Id., at p. 221.) The court held that "the determination of the propriety or impropriety of the expenditure depends upon a careful consideration of such factors as the style, tenor and timing of the publication; no hard and fast role governs every case." (Id., at p. 222.)

LEGAL AUTHORITY TO DISSEMINATE INFORMATION

Note that under the above general rule, a public entitymust have some legal authority to disseminate information before it can expend public funds to do so, even where the information is fair and impartial. For specific entities, the authority has been codified. Generally, the statutes provide thatan agency may disseminate information conceming the rights, properties and activities of the agency. For example, the power to disseminate information to the public is given to counties (Gov. Code §25207.5), and school districts (Education Code §35172(c)). Cities are generally given broad powers to govern local matters and may exercise police power not in conflict with the Constitution and laws of the state or the United States (Gov. Code §37100). However, chartered cities must refer to their charter to determine whether there are any Prohibitions against dissemination of information to the public. Water districts have specific authority to disseminate to the pUblic concerning the rights, properties and activities of the district (Water Code §§31011, 35411 and 71596). The authority of a public agency toact in an "informational" rolewould probably not be challenged. As .Stanson noted, "it is generally accepted that a public agency pursues a proper 'informational' role when it simply gives a 'fair presentation of the facts' in response to a citizen's request for information." It is the "fair presentation of flae facts" that will be of primary concern to the public agency.

DISTINCTION BETWEEN CAMPAIGN AND EDUCATIONAL MATERIALS

There is no hard and fast rule to distinguish between campaign literature and educational material. Some guidance may be found in court and administrative rulings regarding what is "express advocacy," which would constitute campaign material, and may not be disseminated at public expense. The Fair Political Practices Commission, under the Political Reform Act, has enacted Regulation 18255, which in part provides that a communication "expressly advocates" the nomination, election or defeat of a candidate or the qualification, passage or defeat of a measure if it contains express words of advocacy such as "vote for," "elect," "support," "cast your ballot," "vote against," "defeat, .... reject," "sign petition for," or otherwise unambiguously urges a particular result in an election. Similarly, the federal court in Federal Elections Commission v: Furgatch 807 F.2d 857 (9th Cir. 1983) describes "express advocacy" as material that when read as a whole, must "be susceptible of no other reasonably interpretation but as an exhortation to vote for or against a specific [measure]." Thus the FPPC and the Ninth Circuit Court indicate that a communication does not have to expressly urge a voter to vote a particular way to constitute "express advocacy."

The FPPC, in enforcement cases, has indicated that in analyzing whether communications contain express advocacy, it will look at several factors:

1) The veracity of the representations;

2) Motive and intent;

3) Volume and timing of the message;

4) Lack of information about opposing viewpoint;

5) Use of public relations firm to promote the agency's position; and

6) Inclusion of statements calling for voter action.

PREPARING INFORMATIONAL MATERIALS

From the above authorities, a number of general points should be kept in mind when preparing informational materials:

• Informational materials should dispassionately present the facts.
• Do not urge a position or course of action.
• Both the consequences of passage and defeat should be set forth in language, if not of equal length, then at least of equal prominence.
• The fairness of the entire body of the material is as important as each sentence.
• Provide information early enough in the campaign so that it does not compete or be confused with advocacy pieces.

We advise that counsel review specific literature prior to dissemination to ensure compliance with applicable laws.

Olson, Hagel, Leidigh, Waters & Fishburn, LLP
Lance H. Olson