REQUESTED BY: L. Lynn Rex, Assistant Director, League of Nebraska Municipalities.
QUESTION: Can public officials and public employees engage in certain specified activities in connection with a ballot question?
CONCLUSION
See Analysis
FACTS
A number of questions, including constitutional amendments, will be submitted to voters of Nebraska at the November general election. Certain of these questions may significantly change the amount of funds available to political subdivisions of the State. Therefore, elected officials, appointed officials, and public employees of Nebraska's political subdivisions have felt obliged to become informed about and speak upon these matters. However, cognizant of the provisions of section 49-14,101(4) prohibiting the use of public funds, resources and personnel except as permitted by law, many public officials and employees have had questions about the extent of permitted political activity in connection with ballot questions. The League of Nebraska Municipalities, on behalf of public officials it represents, poses a series of questions regarding the permissible activity of public officials and public employees in connection with ballot questions.
ANALYSIS
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, . . . ."
In Advisory Opinions #68, #82, #89, #95, and #112 the Nebraska Accountability and Disclosure Commission has interpreted this provision to mean that public funds, resources, and personnel may not be used to support or oppose the nomination or election of a candidate or to support or oppose the qualification, passage, or defeat of a ballot question. Courts in many jurisdictions have considered the question of the use of public funds by state agencies and political subdivisions to advocate a position on a ballot question. Though relying on a variety of theories, the courts have been almost uniform in finding that public funds may not be used to urge the voters to vote one way or another on a ballot question. These judicial decisions and the principles on which they are based are extensively discussed in the above noted Advisory Opinions.
While public funds may not be used to advocate a position on a ballot question, such funds may be used for the electorate about an issue so long as fairness and neutrality are maintained. See also Advisory Opinion #68. That is, public funds can be used to prepare and distribute information provided the information is presented in a balanced, factual manner and it does not advocate or oppose a ballot question or attempt to persuade the voters. See Advisory Opinion #112. Again supporting judicial decisions are discussed in the above noted Advisory Opinions.
Section 49-1443 of the Act defines a public official as:
. . . an official in the executive branch, an official in the legislative branch, or an elected or appointed official in the judicial branch of the state government or a political subdivision thereof; any elected or appointed member of a school board; and an elected or appointed member of a governing body of a state institution of higher education.
Section 49-1442 of the Act defines a public employee as "an employee of the state or a political subdivision thereof".
While public officials and public employees are prohibited from using public funds, resources, etceteras, they, as individuals, still retain the right to free speech under the First Amendment to the U.S. Constitution and Article I, Section 5 of the Nebraska Constitution. In addition, section 20-160 of the Nebraska Statutes provides that:
Unless specifically restricted by a federal law or any other state law, no employee of the state or any political subdivision thereof . . . shall be prohibited from participating in political activities except during office hours or when otherwise engage in the performance of his or her official duties.
It should be noted that appointed and elected public officials are in somewhat different position than public employees. Public employees normally have specific work hours. The duties associated with many public officials are constituted in such a way that they are considered part-time positions. That is, many public officials in Nebraska engage in other full-time occupations and perform their official duties for nominal or token compensation. Therefore, it is often less clear when a public official is engaged in his or her official duties that it is with a public employee.
With these general principles in mind, we turn to the specific questions posed.
Question #1 - Under what circumstances may a public official or public employee accept an invitation to be part of a program for the purpose of advocating a position on a ballot question. These programs could include press conferences, radio or television broadcasts, speaking to civic clubs and organizations, etceteras?
Answer - (A) A public official acting in her or her official capacity may accept an invitation to participate in such a program. However, since public funds may not be used to advocate a position on a ballot question, the public official may not use public resources in connection with the program.
For example, he or she may not have a public employee prepare a speech for him or her. He or she may not use a government vehicle to travel to the site of the program and may not be reimbursed by the government body for expenses associated with the program. A public official acting in his or her capacity as an individual may also accept such an invitation but must also refrain from using public resources in connection with the program.
(B) A public employee acting in an official capacity may accept an invitation to participate in such a program, but must participate on his or her own personal time and not on government time. The public employee would also be prohibited from using public funds or resources in connection with the program. A public employee could accept an invitation to participate in such a program as an individual. Again, he or she must use his or her own personal time and must not use government resources.
Question #2 - Under what conditions may a public official or public employee accept an invitation to be part of a program for the purpose of providing factual information regarding a ballot question?
Answer - (A) A public official in his or her official capacity may accept an invitation to participate in such a program. He or she may use public resources to prepare for the program, may use government vehicle to travel to the site of the program, and may be reimbursed by the government body for expenses associated with attending the program. A public official, of course, may accept an invitation to participate in such a program in his or her capacity as an individual. Naturally, while acting in his or her capacity as an individual, the public official's expenses are not reimbursable by the government body. If acting as an individual, public resources in connection with the program may be used by the public official only on the same basis that they may be used by other members of the public.
(B) A public employee in his or her official capacity may participate in a program for the purpose of providing factual information regarding a ballot question if authorized to do so. He or she may attend or participate on government time and use government resources in connection with the program. Again, if the public employee is participating in his or her private capacity, expenses are not reimbursable and public resources may be used only on the same basis that they may be used by members of the public generally.
Question #3 - Can a public official or public employee participating in a program such as that described above for the purpose of advocating a position on a ballot question (1) outline the potential impact of the ballot question on local government, (2) clearly state his or her personal views on the ballot question, (3) clearly state how he or she intends to vote, and (4) urge those in attendance to vote for or against the ballot question?
Answer - (A) A public official acting in his or her official capacity or in his or her individual capacity participating in a program for the purpose of advocating a position on a ballot question may outline the potential impact of the ballot question on local government. He or she may clearly state his or her personal views on the ballot question. He or she may clearly state how he or she intends to vote on the ballot question. He or she may urge those in attendance to vote for or against the ballot question. Since the purpose of the program is to advocate a position on the ballot question, public resources may not be used in connection with the program.
(B) A public employee acting either in his or her official capacity or individual capacity participating is such a program may outline the potential impact of the ballot question on the local government. He or she may clearly state his or her personal views on the ballot question. He or she may clearly state how he or she intends to vote. He or she may urge those in attendance to vote for or against the ballot question. Since the purpose of the program is to advocate a position on a ballot question, the public employee may not use public resources in connection with the program nor may he or she participate on government time.
Question #4 - If participating in a program such as those described above for the purpose of providing factual information, can a public official or public employee (1) outline the potential impact of the ballot question on the local government, (2) clearly state his or her personal views on the ballot question, (3) clearly state how he or she intends to vote on the ballot question, or (4) urge those in attendance to vote for or against the ballot question?
Answer - (A) A public official acting in his or her official capacity participating in a program for the purpose of providing factual information may outline the potential impact of the ballot question on local government. However, this outline must be factual and not calculated to induce the voters to vote one way or other. The public official may clearly state his or her personal views on the ballot question. He or she may clearly state how he or she intends to vote on the ballot question. Public resources may be used in connection with the public official's participation in this program. We do not consider the public official's expression of his or her views under these circumstances to be a violation of section 49-14,101(4) because any use of public resources in connection with expressing such an opinion is incidental. It is somewhat analogous to a situation in which a city council passes a resolution supporting or opposing a ballot measure. See our response to question #1 in Advisory Opinion #112. However, the true purpose of the program (as differentiated from the announced purpose) must be for the purpose of providing information. A public official should not urge those in attendance to vote for or against the ballot question. This could constitute evidence that the true purpose of the program, or the public official's participation in the program is for the purpose of advocating. A public official acting in his or her individual capacity may also state his or her opinion, how he or she intends to vote, and urge others to vote for or against a ballot question. However, if the public official is participating as an individual he or she may not be reimbursed by a governmental entity and he may not use public resources in connection with his participation.
(B) A public employee participating in his or her official capacity in a program for the purpose of providing factual information may outline the potential impact of the ballot question on the local government. He or she may state his or her personal views on the ballot question. He or she may state how he or she intends to vote. Public resources may be used in connection with the public employee's participation in such a program and he or she may be reimbursed for expenses associated with such a program. As with part A of this answer, this assumes that the real (as differentiated from the announced) purpose of the program is providing factual information. Again, a public employee participating in such a program in his or her official capacity should not urge others in attendance to vote for or against the ballot question since this could constitute evidence that the real purpose of the program, or his or her participation in the program, is advocacy. If the public employee is participating in his or her individual capacity on his or her own time, he or she may outline the potential impact of the ballot question, state his or her personal views on the ballot question, state how he or she intends to vote, and urge others in attendance to vote for or against the ballot question.
Question #5 - Can a public official or public employee participating in a program of the type described above (whether for the purpose of advocating or for the purpose of providing factual information) respond to a question from the audience as to his or her views on the ballot question?
Answer - (A) public official may respond.
(B) A public employee may respond.
Question #6 - Under what conditions may a public official or public employee meet with other public officials or public employees at private or public meetings, forums, conferences, etcetera, to discuss the potential impact of a ballot question on local government?
Answer - If the purposes of the meetings, etcetera are to assist the public official or public employee in understanding the ballot question and assisting the public official or public employee in understanding the impact of the ballot question, then public employees may attend such meetings and use government resources in connection therewith. They may use government vehicles to attend the meetings and may be reimbursed by the government body for expenses associated with their attendance. Clearly a responsible public official or public employee must understand the potential impact of a ballot question on the political subdivision which he or she serves. A responsible public official or public employee must also be prepared to assist a government body in complying with any new law which is the result of the passage of the ballot question. The use of public funds and resources in connection with these activities is appropriate. Naturally, if the public official or public employee is acting in his or her individual capacity, public resources may not be used and there should be no reimbursement of expenses incurred in connection with attendance.
Question #7 - Under what conditions may a public official or public employee attend a meeting or conference where a panel of experts comprised of other officials, city attorneys, bond counsel, etcetera outline the potential impact of the ballot question?
Answer - The answer to question #6 applies to this question.
Question #8 - Under what condition may public officials or public employees testify on the potential impact of the ballot question at a public hearing conducted by a standing committee of the Legislature?
Answer - A public official or public employee acting in his or her official or individual capacity may testify on the potential impact of a ballot question at a public hearing conducted by a standing committee of the Legislature. Such hearings are open, public hearings at which any citizen may express an opinion pro or con in his or her individual or official capacity. If the public official or public employee testifies in his or her official capacity, the public official or public employee may use public resources in connection with the testimony. The travel expenses incurred by the public official or public employee in connection with the testimony may be paid for by the government body. Naturally, a public official or public employee acting in his or her private capacity may not use public resources in connection with this testimony nor have a government body pay the travel expenses connected with this testimony.
Question #9 - Under what conditions may a public official or public employee meet with public officials or public employees as well as city attorneys, bond counsel, etcetera for the purpose of developing a strategy on how to educate the public on a ballot question?
Answer - If the purpose of the meeting is to develop factual information to be disseminated to the public which does not urge the public to vote one way or another, public officials or public employees may, in their official capacities, attend such meetings. Public resources may be used in connection with such meetings and the expenses incurred by the public official public employee in connection with the meeting may be paid by the government body.
Question #10 - Under what conditions may a public official or public employee meet with other public officials and public employees, city attorneys, bond counsel, etcetera for the purpose of developing a strategy as to how to support or defeat a ballot question?
Answer - (A) A public official acting in his or her official capacity may attend a meeting for the purpose of developing a strategy on how to support or defeat a ballot question. However, public funds and resources may be not used in connection with this meeting. The expenses incurred by the public official in connection with his or her attendance may not be paid by the governmental body. A public official acting in his or her individual capacity may also attend such a meeting. Again, public resources or funds may not be used in connection with the meeting and the expenses of the public official may not be paid by the government body.
(B) A public employee may attend such a meeting in his or her official capacity or individual capacity, but may only attend on his or her own personal time. He or she may not be reimbursed by the government body for his or her expenses incurred in connection with the meeting.
Question #11 - Can press or media representatives be invited to attend a meeting to develop strategy on how to educate the public on a ballot question?
Answer - Yes. Public resources may be used in connection with extending this invitation.
Question #12 - Can press or media representatives be invited to attend a meeting on developing strategy as how to support or defeat a ballot question.
Answer - Yes. However, public resources may not be used to issue the invitation or disseminate information regarding the meeting.
Question #13 - If a political subdivision prepares an objective, realistic analysis of the potential impact of a ballot question based on the facts, under what circumstances can the political subdivision make copies of the report available to the public and press?
Answer - Assuming a report which is an objective, realistic analysis based on facts as to the potential impact of a ballot question, the information may be disseminated by the political subdivision in any way it sees fit and public funds may be used. The method of dissemination could include, but is not limited to, (a) mailing copies of the reports to citizens, (b) making copies of the report available at the public library, (c) allowing local chambers of commerce and other civic groups to distribute copies of the report at their own expenses, (d) allowing private individuals to distribute copies of the report at their own expense, or (e) having its public officials or public employees initiate contact with the press and media to explain the information contained within the report.
Question #14 - Under what circumstances may a public official or public employees list his or her name on a newspaper ad or other media presentation as supporting or opposing a ballot question?
Answer - A public official or public employee may permit his or her name to appear in a newspaper ad or other media presentation in support of or opposition to a ballot question. A public official or public employee may allow the use of his or her official title to be used in connection with that advertising or presentation. Public funds or resources may not be used in connection with the newspaper ad or media presentation.
SUMMARY
We recognize that it is often very difficult for the many conscientious and responsible public officials and public employees of the state to know when and under what circumstances public funds and resources may be used in connection with a ballot question. However, we believe they will see the wisdom of a statement of the U.S. District Court in Colorado case of Mountain States Legal Foundation b. Denver School District #1, 459 F.Supp. 357 (D. Colorado 1978)
When residents within a state seek to participate in this process by proposing an amendment to the state constitution, the expenditure of public funds in opposition to that effort violates a basic precept of this nation's democratic process.
