REQUESTED BY: Michael Nolan, City Administrator, City of Norfolk
QUESTION: The City of Norfolk poses a series of questions on the permissible scope of political activities of public officials and public employees in connection with a ballot issue. These questions are detailed below.
The pay for State Legislators is set by the Nebraska Constitution. A constitutional amendment has been proposed which would increase the pay of State Legislators as well as restructure the manner in which future pay increases come about. The Norfolk City council, its members, the Mayor of Norfolk and City Administrator of Norfolk wish to know the scope of political activities in support of the proposed amendment which they may undertake in connection with this proposed amendment.
Section 49-14,101(4) states:
No public official or public employee shall use personnel, resources, property, or funds under that individual's official 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.
In Advisory Opinion #68 we determined that using public funds for the purpose of taking a position in opposition to a ballot question was a "nongovernmental" use of public funds and resources. However, we recognize the existence of Section 23-3001 which states:
Unless specifically restricted by a federal law or any other state law, no employee of the state or any political subdivision thereof, as defined in subdivision (2) of section 23-2102, shall be prohibited from participating in political activities except during office hours or when otherwise engaged in the performance of his or her official duties. No such employee shall engage in any political activity when wearing a uniform required by the state or any political subdivision thereof.
Recognizing that what is clear in the abstract is not necessarily clear when applied to real situations, the Commission has clarified in Advisory Opinions #82, 89 and 95 the bounds of permissible political conduct by public officials. The questions posed indicate that further guidance is needed from the Commission. We therefore respond to the questions as follows:
#1: May the Norfolk City Council pass a resolution in support of the proposed constitutional amendment to increase the pay for state senators?
A city council may pass a resolution in support of a ballot question assuming that there is only incidental use of public resources (i.e., meeting time) without an expenditure of public funds. We stated in Advisory Opinion #95 that "there are potential benefits to the public interest when a public policy making body . . . takes a position on a matter which is within their official area of concern. These benefits include the generation of public interest and debate . . ." See King County Council v. Public Disclosure Commission, 93 Wash. 2d 559, 611 P2d 1227 (1980). The Commission takes no position as to whether or not a constitutional amendment to increase the pay for State Senators is a matter which is properly within the official area of concern of a City Council. See Mountain States Legal Foundation v. Denver School District #1, 459 F.SUPP. 356 (D COLO. 1978). For the purpose of answering the following questions we will assume that such a constitutional amendment is a matter within the official concern of a City Council.
#2. May the Norfolk City Council include language in the resolution of support to encourage civic organizations and other groups to actively support the proposed constitutional amendment to increase the pay of state senators?
Yes. Again, the assumption is that there is only incidental use of public resources and that no public funds will be spent. It is illogical to take the position that a public body may take a position but that it may not, in taking its position, encourage others to take the same position.
#3. May the Norfolk City Council include language in the resolution of support to encourage citizens to vote in support of the proposed constitutional amendment?
Yes, for the same reasons as set forth in the answer to question #2.
#4. May the Norfolk City Council pass a resolution simply encouraging civic clubs to become informed on the facts and issues relevant to the proposed constitutional amendment?
Yes, for the reasons set forth in the answer to question #1.
#5. May the Mayor, City Council Members, City Administrator and others in their official capacity as municipal officials actively support the purposed constitutional amendment to increase senator salaries by (1) giving interviews with the media and (2) making presentations to civic clubs to educate the public on the need for a salary increase and to encourage citizens to vote in support of the proposed amendment?
(1) No. A public official who calls a press conference or arranges an interview for the sole or primary purpose of expressing his or her position on the constitutional amendment may be in violation of Section 49-14,101(4). However, a public official may during the course of a press conference or interview respond to questions of the media on that public official's opinion on the proposed constitutional amendment. (2) Yes. However, the public official may not expend public funds or use public resources in order to make these presentations.
#6. May the individuals serving as mayor, city council member, city administrator and other municipal officials actively support the proposed constitutional amendment as private citizens by (1) giving interviews with the media and (2) making presentations to civic clubs to educate the public on the issues and encourage citizens to vote in support of the proposed amendment?
(1) and (2) Yes, as long as no public resources or funds are used.
#7. May the City of Norfolk at public or private expense insert (1) a copy of any resolutions passed by council, or (2) flyers outlining reasons why citizens should vote in support of the ballot question or (3) an informational flyer, or fact sheet on the proposed ballot questions, in utility bills for municipal services sent to rate payers or other mailings from the municipality to its citizens?
(1) No, sending a copy of the resolution would be the use of a public resource to advocate a position on a ballot question. There may be exceptions if the municipality normally encloses copies of all its public proceedings and resolutions in such mailings regardless of the subject. (2) No. This would be the use of a public resources to advocate a position on a ballot question. (3) Yes. Public funds may be used to prepare and distribute information provided that the information is presented in a balanced, factual manner and it does not advocate or oppose the constitutional amendment or attempt to persuade the voters.
We recognize the fact that certain literature may be labeled informational only and avoid the use of terms "vote yes" or "vote no" but still constitute an improper use of funds or resources to persuade the voters on an issue. "In such cases, 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 rule governs every case". Stanson v. Mott, 130 CAL RPTR. 697, 551 P2d 1 (1976)
In a situation involving a New York State Commission attempting to spend public funds in support of a constitutional amendment, Judge Spiegel in Stern v. Kramarasky, 375 NYS2d 235 (1975) at 239 put the matter rather well when he stated:
Public funds are trust funds and as such are sacred and are to be used for the operation of government. For 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 countenanced. (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 ideals or worthy cause it espouses, promotes or promulgates."