ADVISORY OPINION #195

Subject: Campaign Finance/Use of Campaign Funds for Legislative Website

Requested By: Bill Avery, State Senator, District 28

Questions Presented: 1) May campaign funds be used to create and maintain a legislative website? 2) May legislative staff and resources be used to update the site and engage in constituent communications?

Conclusion: Yes as to each question presented.

Facts:  The Senator states that it is his intent to establish a legislative website.  It would be produced and maintained by his legislative staff.   It is his intent that the website would act as a vehicle for constituents to learn more about what is going on in the Legislature.  The site would also allow the Senator to learn more about the concerns of the constituents in the 28th Legislative District.

The Senator anticipates that the site would contain detailed information about legislative bills and other issues which the Legislature is facing.  It would also contain information about bills on which the Senator is personally working.

The Senator expects to use the website for on-line polls which would help him to identify the issues that most concern his constituents.  He intends to advise his constituents of the existence of this resource by email and postal mail.

The website would have nothing to do with the Senator’s campaign for election.  In fact, he would have a separate website established for that purpose.

It is the Senator’s intent to establish and maintain this website using the funds of his candidate committee.  It is his further intent to use Legislative staff to maintain the content of the website and to respond to those communicating with him through the website.

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Analysis: The Commission has recognized three distinct purposes for which campaign funds could potentially be used. They are campaign purposes, personal purposes, and office holding related purposes.  The NPADA taken as a whole permits the use of campaign funds for campaign purposes.  It prohibits the use of campaign funds for personal purposes.  It also prohibits the use of campaign funds for office holding related purposes unless specifically permitted by the NPADA.

Section 49-1446.01(1) of the Nebraska Political Accountability and Disclosure Act provides as follows:

No committee, other than a political party committee, may expend funds except to make an expenditure, as defined in subsection (1), (2), or (3) of section 49-1419, or as provided in section 49-1446.03 or 49-1469.06.

Section 49-1469.06 applies to separate segregated funds or PACs and is not relevant here.

As it applies to candidate committees, §49-1419 provides that an expenditure is a payment for “goods, materials, services, or facilities in assistance of, or in opposition to, the nomination or election of a candidate”.  Taken together, §§49-1446.01 and 49-1419 clearly state that campaign funds are for campaign purposes only with certain statutory exceptions.

Section 49-1446.02 generally supports the proposition that campaign funds may not be used for personal purposes. However, since the use of campaign funds for personal purposes is not at issue, the concept will not be further explored in this opinion.

Campaign funds may be used for certain enumerated purposes even if those purposes are related to the holding of public office rather than campaigning.  For example:

a)     Officeholders may use campaign funds to put telephones and fax machines in their government offices. See §49-1446.01(2).

b)     An officeholder may use campaign funds for conference fees, meals, travel and lodging for himself and government staff for activities related to the holding of a public office.  See §49-1446.03(8). 

c)      Officeholders may use campaign funds for social events primarily for the benefit of constituents. See §49-1446.03(2).

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Section 49-1446.03 states:

… [A]ny committee may, in addition to the expenditures set forth in section 49-1446.01, make expenditures for the following: …

(3) Obtaining public input and opinion; …

(5) Newsletters and other communications for the purpose of information, thanks, acknowledgment, or greetings or for the purpose of political organization and planning; …

In Advisory Opinion #80 the Commission noted that the NPADA permitted the use of campaign funds for “obtaining public input and opinion”.  On that subject we stated:

The Act does not further qualify this language, and so we must assume that the legislature intended the words to read as their plain meaning would indicate.  That is, any generally accepted means of obtaining public input and opinion may be used after an election and paid for with campaign committee funds.

The statement is no less true today.  Websites on the internet are a generally accepted means of obtaining public input and opinion.  Campaign funds may thus be used to establish websites for the purpose of obtaining public input and opinion.

The Senator states that the website’s primary purpose is to provide constituents with information about the Legislature and to be a vehicle for distributing newsletters and other Legislative updates to constituents.  In Advisory Opinion #186 we acknowledged that a newsletter could be electronic in form.  Therefore, the campaign funds of a candidate committee may be used to establish and maintain a website that is functioning as a newsletter.

We turn now to the question of whether Legislative staff may assist in maintaining the content of the website and communicating with constituents and others through the site.  The use of Legislative staff also implies the incidental use of governmental resources.

Legislative staff members are public employees who are paid with public funds and perform their duties using public resources.  State law prohibits them from engaging in campaign activities while on state time or when otherwise engaged in their official duties.  They are further precluded from using state resources in connection with campaign activities.

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Section 49-14,101.02(2) states:

Except as otherwise provided in this section, a public official or public employee shall not use or authorize the use of public resources for the purpose of campaigning for or against the nomination or election of a candidate or the qualification, passage, or defeat of a ballot question.

Section 49-14,101.02(1) provides “For purposes of this section, public resources means personnel, property, resources, or funds under the official care and control of a public official or public employee”.

As previously stated, the intent of the Senator is to establish a website that will not be used for campaigning, but for communicating with constituents and others about matters before the Legislature and other issues.  There will be no solicitation of funds or votes.  It will not include campaign announcements or information about the campaign.  A legislative staff member who is working with the website would be engaged in activities that appear to be consistent with his or her official duties.

Within the Legislature’s personnel system there is a category of employees generally defined as Personal Senate Staff.  See Personnel Policies for Legislative Employees (Revised September 22, 2000).  The positions falling within this category are administrative assistants, legislative aides, committee clerks, and committee counsels.  The official job descriptions for these positions include the following:

a)     Performs and summarizes quantitative and qualitative research for proposed and pending legislation generally.

b)     Preparing and disseminating information materials to the press, lobbyists, other staff, constituents and others.

c)      Preparing newsletters, newspaper columns and other media releases.

d)     Performs a variety of constituent services including answering constituent inquiries.

e)     Maintains current mailing list of constituents.

f)        Assembles and sends mass mailings.

The duties which legislative staff will perform in connection with this website are not, on their face, outside the scope of their official duties.  Accordingly, legislative staff members may engage in activities to maintain the content of the website and respond to those who contact the website.  The incidental use of governmental resources under the Senator’s official care and control for the maintenance of the website is also permissible under the NPADA.

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It is important to note and to emphasize that this opinion is predicated on the representation that the website will be used for legislative matters only and will not in any way be used in connection with a campaign.

Finally, we acknowledge that the Legislature, within the parameters of law, has the ultimate authority to determine how legislative staff and resources may be used.  On that issue this opinion simply takes the position that the proposed uses of legislative staff and resources do not violate the Nebraska Political Accountability and Disclosure Act.

Summary: The funds of a candidate committee of a State Senator may be used to establish a legislative website which will not be used for campaigning or campaign purposes.  Legislative staff may participate in maintaining the content of the website and responding to constituents and others communicating through the website. 

ADOPTED as an advisory opinion pursuant to Section 49-14,123(10) and Title 4, Chapter 1, Rules of Practice and Procedure. As provided in Section 49-14,123(10), this advisory opinion shall be binding upon the Commission unless amended or revoked, concerning the person or public body who requested the opinion and acted in reliance thereon in good faith unless material facts were omitted or misstated by the person in the request for the opinion.

DATED this ______ day of October 2007.

NEBRASKA ACCOUNTABILITY AND DISCLOSURE COMMISSION

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Andre Barry, Chairman