REQUESTED BY: Joe E. Lutjeharms, Commissioner of Education, Nebraska Department of Education.
QUESTION: What permissible activities may the Commissioner of Education, staff of the Department of Education, the Department of Education's LB662 Advisory Committee, and the State Board of Education engage in relative to the referendum calling for the repeal of LB662.
CONCLUSION
See Analysis
FACTS
The Legislature has enacted LB662, which principally deals with the consolidation of certain school districts and the limitation on the amount of public school operational costs derived from taxes on real property. A referendum petition has been certified by the Secretary of State which will cause the question of repeal of LB662 to be placed on the November 1986 general election ballot.
In your opinion request letter, you state that you have read our Advisory Opinion #68 and that it causes you great concern. In Opinion #68, we advised Roland Luedtke, Mayor of the City of Lincoln, that governmental personnel, resources and property may be used to make available to the public factual information with respect to a ballot question, but not to advocate a position. You state that you would like a definitive opinion about prohibited or permitted activities relative to the referendum.
ANALYSIS
Research reveals that the type of activities which are described in your letter, and in particular the subparagraphs A through J, are subject to two distinct tests by the judicial branch if challenged as inappropriate. The first test argues that a violation of constitutional rights occurs if a governmental entity uses public funds to finance support for one side of a controversial issue. In describing this limitation on government speech, one commentator stated:
"One purpose of the First Amendment is to prevent government censorship of private speech, particularly political speech, through the operation of laws. The passage of time since the adoption of the Bill of Rights has revealed that laws and practices that permit massive government communications activities may as effectively silence private speakers as a direct regime of censorship. More important, freedom of speech protects the ability of a free people to exercise their powers of independent judgment and to communicate their views about government officials and policies; freedom of expression and association are critical to the process of consent that justified the legitimate government in a democracy. Government speech may threaten those processes of consent through indoctrination and the withholding of vital information thereby undermining the power of the citizenry to judge intelligently and to communicate those judgments." When Government Speaks, 57 Texas Law Rev. 863, at 897.
This constitutional theory has been put into action on a number of occasions to preclude the government from making public facilities available to only favored political viewpoints. See e.g., Wirta v. Alameda-Contra Costa Transit District, 68 Cal. 2nd. 51, 434 Pacific 2nd 982 (1967); Danskin v. San Diego Unified School District, 28 Cal. 2nd. 536, 171 Pacific 2nd 885; Healy v. James, 408 U.S. 169 (1972), and Stanson v. Mott, 17 Cal. 3rd 206, 551 Pacific 2nd 1 (1976). We find no Nebraska cases on point, but would suspect that Article I, Section VI of the Nebraska Constitution guaranteeing free speech would be applicable.
The second course of action restricting governmental speech is by far the more widely used and accepted by those courts which have been asked to enjoin governmental speech which is alleged to be politically motivated. Under this test, one does not look for a constitutional violation but, instead, looks for state legislation which either prohibits or fails to authorize the complained-of acts. A substantial number of state courts have used this theory to enjoin the speech of public officials, similar to that identified in your letter. See Mountain States Legal Foundation v. Denver School District #1, 459 Fed. Supp. 356 (D Colo. 1978); Stanson v. Mott, supra; Mines v. DelValle, 201 Cal. 273, 257 Pacific 530 (1927); Harrison v. Rainey, 227 Ga. 240, 179 SE 2nd 923 (1971); Elsenau v. Chicago, 334 III. 78, 165 NE 129 (1929); Citizens to Protect Public Funds v. Board of Education, 13 NJ 1972, 98 Atlantic 2nd 673 (1953); Stewart v. Scheinert, 84 Misc. 2nd 1086, 374 NYS 2nd 585 (1975); Porter v. Tiffany, 11 Ore. App. 542, 502 Pacific 2nd 1385 (1972); State v. Superior Court, 93 Wash. 267, 160 Pacific 755 (1916); and Stern v. Kranarsky, 84 Misc. 2nd 247, 375 NYS 2nd 235 (Sup. Ct. 1975).
While always mindful of the constitutional principles mentioned above, we choose to concentrate our analysis on an examination of state statutes which either prohibit or fail to authorize the activities you describe.
In your request letter, Article VII, Section 2 of the Nebraska Constitution, and Neb. Rev. Stat. Sections 79-304, 79-305, 79-321 and 79-332 are cited by you to argue that they permit and even impose the duty of taking a leadership position in discussions of LB662 and the proposed referendum. We have examined those laws and would agree that they vest in the Department of Education authority to promote the cause of education. However, this grant of authority must be construed in the context of state and federal constitutions and state legislation. Particularly, your actions are subject to the provisions of Neb. Rev. Stat. Section 49-14,101(4) (Reissue 1984) which reads:
"No public official or public employee shall use personnel, resources, property, or funds under the individual's care and control other than in accordance with prescribed constitutional, statutory and regulatory procedures, or use such items, other than compensation provided by law, for personal financial gain." (Emphasis added.)
Stanson v. Mott, supra, provides a good, clear explanation of the theory which prohibits the use of state resources to promote a position on a ballot question. In Mott, California voters were asked to consider a $250 Million bond referendum. The bond monies were to be used for acquisition of park land. The defendant Mott, Director of the California Department of Parks and Recreation, had authorized the expenditure of $5000 to promote passage of the bond issue. The California Supreme Court found that the California Legislature had not made any specific authorization for the expenditure and that "every court which has addressed the issue to date had found the use of public funds for partisan campaign purposes improper, either on the ground that such was not explicitly authorized . . . or on the broader ground that such expenditures are never appropriate." Stanson v. Mott, 551 Pacific 2nd ap tt. 8-9.
We now turn to the 10 hypothetical questions you pose. Each response reflects our interpretation of Neb. Rev. Stat. Section 49-14,101 (4) and the court decisions cited above. Our reading of these decisions, particularly Mountain States Legal Foundation v. Denver School District, supra, and Stanson v. Mott, supra, has assisted us in determining whether the actions described by you are". . . in accordance with prescribed constitutional, statutory and regulatory procedures . . ." Neb. Rev. Stat. Section 49-14,101(4) (Reissue 1984).
Question A:
If the Commissioner of Education receives phone calls in his office or at his home regarding LB662, is he free to comment at any time?
Answer:
Yes.
Question B:
If the Commissioner has a press conference for other matters, is he free to state his opinions regarding LB662 matters?
Answer:
Yes.
Question C:
Does the Commissioner have to wait until after 5 p.m. when the Department {of Education} is closed to comment about LB662 matters?
Answer:
No. It is the nature of the act and not the time it takes place which will be subject to investigation. For example, state telephone calls made at any time, to individuals to encourage passage or defeat of the referendum would clearly violate Neb. Rev. Stat. Section 49-14,101(4).
Question D:
If the Department of Education has department conferences with speakers regarding school consolidation, is the Commissioner free to comment and give his opinion about LB662 and the referendum?
Answer:
Yes. You are free to express your opinions about LB662 at such a gathering.
Question E:
Is the Commissioner free at any time to simply state his opinion regarding a 'yes or no' vote on the proposed referendum on LB662?
Answer:
Yes.
Question F:
May the Department of Education print a discussion of LB662 and the referendum in department newsletters, giving both sides?
Answer:
Yes.
Question G:
If so, may the Commissioner also outline his views in the department newsletter?
Answer:
No. The newsletter would be published with state funds. We find the warning of Justice Spiegel in Stern v. Kramarasky, 375 NYS 2nd 235 at 239, to be most instructive:
"Public funds are trust funds and as such are sacred and are to be used for the operation of government. For government agencies to attempt to influence opinion on such matters inhibits the democratic process through the misuse of government funds and prestige. Improper expenditure of funds, whether directly through promotional and advertising activities, or indirectly through the use of government employees or facilities cannot be cauntenanced. (Citation omitted.) People of all shades of opinion and belief contribute these funds from one source or another. No agency may misuse any such funds for promoting its own opinions, whims or beliefs irrespective of the high ideas or worthy causes it espouses, promotes or promulgates."
Question H:
May the Commissioner make speeches in the day or in evening regarding LB662 issues, stating his opinion to private groups and/or department staff?
Answer:
Yes, however you may not use any state resource in preparing your speech or in attending the gathering.
Question I:
May the Commissioner use state cars to attend meetings in which he is certain LB662 matters or the referendum are to be discussed and in which he will be asked his opinion?
Answer:
If the principal purpose of the meeting is to discuss LB662 matters in a non-partisan atmosphere, then our answer is yes. We again refer to the reasoning of Justice Spiegel when he stated, "to educate, to inform, to advocate to promote voting on any issue may be undertaken provided it is not to persuade nor to convey favoritism, partnership, partiality, approval, or disapproval by state agency of any issue worthy as it may be." If you are attending the meeting with every intent of taking a partisanship position, then the use of a state car to attend such a meeting would be improper.
Question J:
May the Commissioner use office stationery and equipment and his department secretary, administrative assistant, or other staff to prepare correspondence responding to questions about LB662 in which he states his opinion? May he use staff to initiate correspondence in which his opinion regarding LB662 is stated?
Answer:
You may use Department resources to reply to questions about LB662 and the response may include your opinions of LB662, if sought. Otherwise, the response should be objective and factual.
For you to initiate correspondence which contains your personal views of LB662 would be improper.
In the request for advisory opinion at page two, you set forth a factual description of a recent trip to Grand Island, Nebraska, where you attended a Rotary Club luncheon at which the Deputy Commissioner of Education spoke on "consolidation issues," and you were asked numerous questions by the press regarding LB662.
As we stated in Advisory Opinion #68, "public employees may, of course, respond to questions and give their opinions on a ballot question, and may do so even during office hours." Our position is that if incidental to the performance of the duties of Commissioner of Education, you are asked to state a personal view on a political subject, then you are most certainly free to do so.
Finally, we draw attention to a policy rule adopted by the Nebraska Department of Education which addresses this very subject. It was adopted on December 7, 1984 and is found at 1311.1 of the State Board Policy Manual. The rule, in pertinent part, states:
"No employee of the Department of Education, the Commissioner, or any member of the State Board of Education, shall use any publication or other Education Department resource financed by or distributed, using public funds for the dissemination of opinions on any political issue appearing on a public ballot . . .".
We believe this policy statement directly supports the position which we have taken.
