It is that time of year again… “Election Season.” In addition to candidates on the ballot on a state and national level, many local governments are gearing up to place questions on the ballot with respect to debt issuances and/or tax increases. As these elections approach, it is important for local governments, elected officials, and government employees to remember that there are limitations as to what can be done to support any local election.
In most states, laws generally prohibit expenditure of public funds to advocate an election. Public expenditures in support of or opposing a candidate are strictly forbidden. However, governments can do a limited number of things to educate electors without crossing the line into expenditures of public funds that violate the law.
This summary generally describes activities that are permitted with respect to spending public funds to advocate an election. These rules may vary by state, and the intent of this article is to make local governments aware that these types of laws exist and need to be followed. Local governments should consult with local counsel or bond counsel with respect to laws specific to individual states.
Generally, elected officials and governmental employees may respond to unsolicited questions about a ballot measure. If a government is placing a question on a local ballot, it is common for voters to contact that government for more information or a fact sheet. Some local laws allow governments to prepare ballot fact sheets, but it is important that a government not advocate in that fact sheet.
An elected official may express a personal opinion about an issue. Further, elected officials and government employees may spend personal funds, and commit personal time, to advocating for or against an election. Some states may allow posting of information on websites, or distribution of fact sheets on government property. Local governments should be aware, however, that allowing the distribution of information on government property may trigger “open forum” issues pursuant to which the government would need to allow others similarly situated to distribute their election materials on the same property.
A local government should consider carefully local laws before expending public funds to advocate an election. Government officials should be trained to ensure that there are no inadvertent violations. Penalties for a violation vary by state, but typically they involve a civil penalty such as fines or sanctions. In certain situations, a government officer, elected official or employee may be subject to fines personally. It may be the case that negative press resulting from the accusation of a violation by a government may influence election results and end up costing more than funds actually expended.Kimberley K. Crawford