With FPPC Enforcement on the Rise, Public Agencies Navigate Gray Area in Use of Public Funds for Election CommunicationsMarch 30, 2022
Local entities often propose ballot measures to fund local programs and better serve their constituents. While they have a strong interest in these measures being adopted, it is well settled law that they may not use public funds to campaign for their passage. However, there are a range of activities – from researching the potential success of a possible measure to providing the public with information on the consequences of adoption – for which the expenditure of public funds is permissible. As the Office of the Attorney General acknowledged in a 2005 opinion “[c]ourts have repeatedly noted the difficulty in drawing a bright line [between] a proper and an improper expenditure of public funds in connection with election activities.”
At the same time, the California Fair Political Practices Commission (FPPC), anti-taxpayer groups, and media outlets are examining public agency communications regarding ballot measures with renewed zeal. The FPPC polices the prohibition against use of public funds for campaigning through its enforcement of the Political Reform Act, which requires entities to report campaign expenditures. In 2018, the FPPC launched an AdWatch website and asked the public to upload images of campaign materials, effectively creating a campaign misstep hotline. The legal, financial, and PR consequences of coming within the FPPC’s crosshairs on this issue can be severe.
Do not tell people how they should vote, or encourage a vote in one direction with inflammatory materials. Public funds cannot be spent to “support or oppose” a candidate or ballot measure under Government Code § 54965. In addition, the California Supreme Court has articulated a Constitutional restriction against use of public funds to campaign for an election, while at the same time recognizing that public funds may be spent on “informational” materials. The FPPC has, in turn, reflected these judicial standards in Cal. Code of Regs. § 18420.1 & 18901.1.
As the Court noted in its seminal case Stanson v. Mott, public agencies can and should “provide the public with a fair presentation of relevant information relating to [ballot] issue on which the agency has labored.” But what exactly is a “fair presentation”?
Clearly, an agency may not explicitly recommend voting for or against an item. But absent express advocacy, communications may still be considered campaign activity. Take, for example, the Bay Area Rapid Transit District’s communications around Measure RR, a 2016 general obligation bond to fund infrastructure repairs and upgrades . With the measure on the ballot, BART disseminated videos through multiple social media platforms, stating “it’s time to rebuild,” featuring transit passengers complaining of the aging trains and facilities. The FPPC found these videos to be “inflammatory and argumentative,” and thus concluded that although the videos did not explicitly recommend a vote for Measure RR, the materials constituted unlawful campaigning.
Similarly, in 2020, the FPPC settled with Los Angeles County after finding public outreach around Measure H to be an improper use of public funds for campaign communications. There, the County ran television and radio ads with positive messages about the ballot measure, which would increase sales taxes to fund services for the unhoused population, provide rental subsidies, and fund emergency and affordable housing. The promotional ads featured inspiring music, the stories of formerly unhoused individuals, and included the slogan “Real help. Lasting Change.” The County ultimately paid the FPPC $1.35 million to resolve the claims.
These examples demonstrate how a communication tactic may be found to be impermissible based on its “style, tenor and timing.” This can be a blurry line. For instance, in Vargas v. City of Salinas, the California Supreme Court found that it was proper for the City to report on potential consequences of passing a ballot measure, because it was objective and fact based and did not use argumentative language to do so. There, the City listed specific programs that would be cut if the measure did not pass. On the other hand, in a recent advice letter to the City of Riverside, the FPPC found that proposed website updates listing popular public services as programs that would benefit as a consequence of passing a revenue transfer ballot measure went beyond simply informing voters. Because potential funding from the ballot measure had not actually been allocated for or limited to any specific program, the FPPC found the discussion of critical services and “saving lives” to be argumentative, having a tenor of campaign materials. Public agencies must therefore tread carefully, as remaining officially neutral on a ballot measure may not be enough to avoid FPPC scrutiny.
Use methods of communication that are already common practice of the agency. When determining whether materials have crossed the line from informational to campaign advocacy, the FPPC considers whether they are consistent with “the normal communication pattern of the agency” and “the style of other communications issued by the agency.” The form of communication matters, with bumper stickers, billboards, TV or radio spots, or posters likely being impermissible under case law and FPPC regulations, while providing objective information on an agency website or as a 1-pager available upon request has been upheld as allowable activity.
Mass mailings are likely to be impermissible, but including purely informative articles about a ballot item in a regularly disseminated newsletter may be permitted. In a recent advice letter, the FPPC explained that providing informational materials as a utility bill insert is permissible where a public entity routinely uses these inserts to communicate with residents. Public agencies can expand the realm of permissible election-related materials by communicating regularly with their constituents in non-election years through multiple channels.
Limit consultants to feasibility research, as opposed to campaign strategy. In a 2005 opinion, the Attorney General found that evaluating likelihood of success of a potential ballot measure is permissible, but hiring a consultant to develop strategy to build support for a measure is improper. For example, a consultant can engage in polling and feasibility studies, aimed at helping a public agency evaluate whether a measure will likely be adopted, before it is placed on the ballot. Even if the findings could be used to inform campaign strategy, the expenditure of public funds is likely permissible if used to help the agency decide whether to place the measure on the ballot. It remains unclear what the consequences would be if a private organization later used these findings for a campaign.
A different direction? The possibility of legislative authorization. While increased FPPC enforcement against the use of public funds for campaigning could tighten the realm of permissible agency activities, this is not an inevitable future. Former California Supreme Court Justice Moreno’s concurrence in the 2009 Vargas decision observed that the concept of prohibited campaign activity set forth by the Court in 1976 may not meet “the current needs of governance” given the “sea change” in local government finance brought about by Prop. 13 and other anti-tax measures. He noted that the prohibition is limited to situations in which there is not clear legislative language specifically authorizing a public entity to expend public funds for campaign activities or materials, and that the Legislature may wish to clarify the extent to which an agency can engage in an active informational campaign in favor of a measure it sponsors. This need not be an across-the-board authorization: it could occur for targeted types of measures or specified agencies, at the Legislature’s discretion.
In short, local agencies walk a fine line in producing informative election materials that are both effective in reaching their constituents and do not raise eyebrows at the FPPC. The content, form, and timing of election-related communications all may come under FPPC scrutiny.
For more information about how public agencies can successfully navigate the FPPC’s rules for what constitutes public agency campaigning, contact Heather Minner.