Legal warnings you must read.
With the change to a March 2020 primary, California voters have moved up three-months from cheerleading at the finish line into pole position for the race of nominating the party candidates. For local agencies, this also means there are more opportunities to be active on both the March Primary and November Presidential ballot.
But before you start building your teams and engaging your community stakeholders and partners, there are some clear and easily missed legal restrictions on how your agency can support or oppose a local ballot measure. And if you thought it wasn’t a big deal, ask any number of agencies that have had to go to court to defend their practices.
Here are the four major “no-no’s” a local agency and their employees (volunteer and paid) can never do “once a ballot measure has been placed on the ballot.”
- Using public resources (staffing or existing communication channels) to disseminate materials prepared by a 3rd party for or against a ballot measure.
- Creating any “promotional” materials for or against a ballot measure.
- Advertising for a ballot measure using bumper stickers, other vehicle signage, posters, tv/radio/internet spots.
- Allow the agency’s employee’s to engage in campaign activities during any “worktime.”
Question– If #1 & #2 is true, what about the materials I’ve seen my agency mail about a ballot measures impact that were prepared by a consulting firm?
Answer– An agency can “prepare or pay for” materials to be created and then distributed ONLY when they are “fact-based” on the effects of a ballot measure on the agency. This can include materials that do not state a recommendation that the agency created with a consultant. But an agency cannot, for example, take materials paid for by a business group about a ballot measure and include those in a mailer to their utility customers.
Question– If #3 is true, why can our City Council take a position against a measure during a City Council meeting that is on TV or archived on the internet?
Answer– The City Council or governing board, during an open and public meeting where all perspectives may be shared, can express or adopt support for or against a ballot measure. The fact that it is televised or archived on the internet in the government’s usual practices does not constitute an advertisement.
Question– If #3 is true and we can’t use bumper stickers or signage on City vehicles, what about bumper stickers stating funds for a City project or asset are due to a particular ballot Measure?
Answer– “After an election”, an agency can use advertisements to note the benefit of a ballot measure passing.
Question– If #4 is true, what about employees working during their lunch times at work on a campaign?
Answer– The actual situation and result may vary, but generally, if an employee is “on unpaid time” they can work on a campaign. Most employees are “not” paid during lunch and therefore can meet the spirit of this prohibition. But, it’s advisable to be safe and wait to work on a campaign before or after work hours. For the same reason, although it may generally be supported, employees may want to avoid working during a “break” on a campaign as that gets closer to a perceived grey area.
What about before a measure is placed on the ballot?
Note that case law is still somewhat silent about affirming what an agency may or may not due “before” a proposal is placed on the ballot. But, the Institute for Local Government (ILG), recommends to consult with your agency’s legal counsel for assuming what can or can’t be done. The ILG is the nonprofit research and education affiliate of the League of California Cities, California State Association of Counties, and the California Special Districts Association.
For more information, see the following references created by the League of California Cities, the ILG and/or published in Western City.
Working on a Ballot Measure Campaign: Some Rules for City Officials, League of California Cities
Municipal Elections: From Start to Finish, League of California Cities, 3/01/18
Ballot Measure Activities and Use of Public Resources: What You Need to Know, Western City, 9/4/18
Ballot Measure Activities, ILG, 6/15/19
Discussion of the Vargas Decision, ILG, 6/15/19
