In a past blog post, we provided a refresher on running for reelection and use of public facilities for campaign purposes (July 10, 2012). In this post, I’ll focus on what local government elected officials and staff can do to support a ballot measure (e.g., a tax levy or bond measure). More specifically, I have five tips to help guide elected officials and staff over the – at times – rocky shoals of state election and campaign law.
Tip 1: You have many options as long as you’re not using agency resources.
RCW 42.17A.555 (formerly RCW 42.17.130), which is the key statutory provision that sets forth prohibitions related to supporting or opposing a ballot proposition, is focused on addressing improper use of public facilities for campaign related purposes. The flip side of this coin is that elected officials and public agency employees on their own time and not using agency facilities or resources are not limited in what they can do by RCW 42.17A.555. As long as such officials and employees are not using agency resources, they can support or oppose a ballot proposition, give money in support or opposition of the proposition, and be involved in campaigns.
Tip 2: Doesn’t the First Amendment protect my speech?
In short, yes. Just because you’re an elected official or agency employee doesn’t mean you give up your free speech rights. In enacting the prohibitions that are in what is now RCW 42.17A.555, the legislature made clear and affirmed that Washington state has a longstanding policy of promoting informed public discussion regarding proposed ballot measures. Elected officials and agency staff have an important voice in that discussion.
The prohibitions against using public facilities for campaign purposes have been crafted to respect free speech rights in the political process and provide options for elected officials and agency staff to inform the public. For example, the governing body of a local government is free to: adopt a resolution supporting or opposing a ballot proposition; make facilities available on a nondiscriminatory, equal access basis for political purposes; and/or make an objective and fair presentation of the facts relevant to a ballot proposition, if such an action is part of the normal and regular conduct of the agency. See, e.g., WAC 390-05-271 (general applications of RCW 42.17A.555) and WAC 390-05-273 (definition of normal and regular conduct).
Tip 3: Prepare an agency fact sheet to inform voters.
Based on discussions with staff of our state’s Public Disclosure Commission (PDC), which has jurisdiction over local election and campaign matters, a recommended approach for an agency in preparing a fact sheet regarding a ballot proposition is to: (1) determine the set of objective facts applicable to the ballot proposition that voters need to know; (2) determine what the agency does as part of its normal and regular conduct in communicating with its constituency (e.g., sending out regular newsletters on substantive issues); and (3) make sure the material is not promotional (i.e., that it does not support or oppose a ballot proposition).
Tip 4: If on my own time and not using agency resources I am involved in activities to support a ballot proposition, can I refer to my agency title (e.g., mayor, councilmember, city manager)?
In terms of speaking, PDC staff indicated to me that if a local elected official is making a speech in support of a ballot proposition, he/she can reference his/her agency title but they need to make clear that the views they are expressing are their personal views. Regarding printed materials such as a privately funded mailer in support of a ballot proposition, an agency official – including their title – can be listed as an endorsee, but the mailer should include a footnote that the title is provided for identification purposes only.
Regarding photos, such a privately-funded mailer could include a photo from agency files if the photo was obtained from a Public Records Act (PRA) request, but the mailer should have a footnote that the photo is publicly available and was obtained through a PRA request. What about a photo taken on agency grounds? Generally, if any member of the public would need agency permission to be on the property and take the photo, the photo should not be taken for nor used in such a mailer.
A good rule of thumb on these issues is to consider the perception of the receiver of the information. Will they think agency facilities or resources were used? To address such concerns, real or perceived, make sure agency facilities or resources are not used for such activities, and make clear verbally and in written materials that they were not used.
Tip 5: If in doubt, contact the PDC – before taking action.
I have found PDC staff to be an essential resource for local officials and staff in providing guidance regarding the statutory provisions and implementing regulations that govern activities related to ballot propositions, elections, and campaigns. And because part of their role is to investigate complaints regarding election and campaign matters, PDC staff know the common mistakes that are made and how to avoid making such mistakes.
For example, PDC staff review agency fact sheets, poll and survey language, and other printed materials and may provide detailed comments that assist agencies comply with our state’s election and campaign laws. Additionally, the PDC has available on its website an array of helpful resources. One such resource prepared by and relied upon by PDC staff that is particularly useful is PDC Interpretation 04-02 (revised in 2012) – a.k.a. “the Local Guidelines.”
PDC staff can be reached by phone at 1-877-601-2828 (toll free) and 360-753-1111 and/or via email (firstname.lastname@example.org).