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Home My WebLink AboutMINUTES - 11141989 - 1.52 TO _ ,BOARD OF SUPERVISORS Sa FkN: Sunne Wright McPeak Contra CWLQ DATE'. Introduced November 14 , 1989 (J0`'" "1 SUBJECT: Legal Opinion on Use of Public Funds for Qualifying Referenda and Initiatives for the Ballot SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION RECOMMENDATION: Request County Administrator to seek legal opinions from County Counsel, District Attorney, Attorney General, and Fair Political Practices Commission regarding the appropriate use of public funds for qualifying referenda and initiatives for the ballot. In addition to a general briefing on this subject, the following questions should be answered: 1. Can public funds be used to prepare ballot language for a referendum or an initiative? If so, what restrictions, if any, apply to the use of public funds? 2. Can public funds be used to gather signatures for a referendum or an initiative? Is there a distinction in law between the use of public funds for a referendum versus an initiative? 3 . Can public funds be used to promote a referendum or an initiative that has qualified for ballot? Can a public agency or official use public funds to provide educational information to the public about a ballot measure? If so, how is a distinction made between "educational materials" and "campaign literature"? 4 . Is there a difference in the legality of expending public funds between a public agency using public funds to qualify (gather signatures) a referendum on a general plan amendment regarding landfills and a public agency using public funds to qualify (gather signatures) an initiative regarding an alcohol tax increase? If so, why and what is the legal basis for the distinction? The CAO should request and coordinate a timely response from all the agencies pending a legal opinion. CONTINUED ON ATTACHMENT: X YES SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATUREISI: ACTION OF BOARD ON November 14 , 1989 APPROVED AS RECOMMENDED OTHER X APPROVED recommendation as set forth above. Also ACKNOWLEDGED receipt of report from County Counsel on political activities and referenda (attached ) . VOTE OF SUPERVISORS 1 HEREBY CERTIFY THAT THIS IS A TRUE X UNANIMOUS (ABSENT - - ) AND CORRECT COPY OF AN ACTION TARN AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN. CC: County Counsel ATTESTED November 14 , 1989 District Attorney PHIL BATCHELOR, CLERK OF THE BOARD OF County Administrator SUPERVISORS AND COUNTY ADMINISTRATOR M382/7-83 BY DEPUTY Legal Opinion on Use of Public Funds for Qualifying Referenda and Initiatives for the Ballot November 14, 1989 Page Two BACKGROUND: Contra Costa County has always conducted business as if it is illegal to use public funds to qualify a referendum or initiative for the ballot. However, recently, at least one city used substantial public funds to gather signatures for a referendum on a general plan amendment regarding landfills. Therefore, it is critical to secure a clarifi- cation of the law. Further, it is important to obtain a legal opinion on whether or not the county could use public funds in helping qualify initiatives that we support. COUNTY COUNSEL'S OFF/CE CONTRA COSTA COUNTY MARTINEZ, CALIFORNIA Date: November 13, 1989 To: Board of Supervisors From: Victor J. Westman, County Counsel / ,�" By: Mary Ann McNett, Deputy County Counsel `/& Re: Use of Public Resources to Support or Oppose Local Ballot Measures County Counsel has been asked to advise as to the extent to which a public agency (e.g. , cities and counties ) can expend public funds to support or oppose local ballot measures (e.g. , referenda) . SUMMARY: Public agencies may not lawfully use public resources to support or oppose political campaigns concerning local ballot measures . Public officials are subject to civil and criminal penalties for unlawful use of public funds . During the course of a regular meeting, a public body may endorse a local ballot measure. DISCUSSION: As a general rule, absent specific statutory authorization, expenditure of public funds to promote a partisan position in an election campaign, including a campaign for a local ballot measure, is unlawful. Courts have repeatedly disapproved the use of public funds in support of political campaigns on the grounds that such expenditures are unauthorized by law and have expressed serious reservations as to the constitutionality of such expenditures in any event. (See, e.g. , Stanson v. Mott ( 1976 ) 17 Cal. 3d 206; Mines v. Del Valle ( 1927 ) 201 Cal. 273; Miller v. Miller (1978) 87 Cal.App. 3d 762 . County Counsel Opinions 89-109; 88-98; 84-103; 80-98 . ) The prohibition extends to the use of public funds for the purpose of influencing members of the public to lobby their legislators in support of a public agency' s position on a given ballot measure. (See Miller v. Miller, supra, 87 Cal .App. 3d at 768-769 . ) As the State Supreme Court stated in the seminal case, Stanson v. Mott: "A fundamental precept of this nation's democratic electoral process is that the government may not "take sides" in election contests or bestow an unfair advantage on one of several competing factions . " (Stanson v. Mott (1976 ) 17 Cal. 3d 206, 217 . ) Board of Supervisors -2- November 13, 1989 Public officials lack statutory authority to expend public funds on political campaigns . (People v. Battin (1978) 77 Cal.App.3d 635, 654; County Counsel Opinion 84-103 . ) Under the general rule expressed above, such expenditures are unlawful. (We note that unlike city and county officials governing boards of school districts have statutory authority to urge the passage or defeat of school measures; e.g. , issuance of bonds for the school district, Ed. Code, § 35174 . ) Under certain circumstances, the use of public resources to form a policy proposal that may result in a local ballot measure is permissible. A recent case, League of Women Voters v. Countywide Crim. Justice Coordination Committee (1988) 203 Cal .App. 3d 529, held that a duly authorized and appointed county committee's expenditure of public funds to develop and draft a state initiative and identify and approach a sponsor for that measure was not unlawful. The court ruled that the development and drafting of a proposed initiative was not akin to partisan campaign activity, but was more closely akin to the proper exercise of legislative authority. Moreover, the power to draft a proposed initiative includes the power to seek a proponent. Securing a proponent does not entail public advocacy directed at the electorate. (League of Women Voters, supra 203 Cal.App.3d at 550, 554 . ) Sometimes a public agency can spend public funds to provide neutral, relevant information about a local ballot measure. (Stanson v. Mott, supra, 17 Cal . 3d at 221 N. 6; see also League of Women Voters, supra 203 Cal .App. 3d at 559, 560 . ) We caution that the line between unauthorized campaign expenditures and authorized information activities often will be unclear. (Stanson v. Mott, supra, 17 Cal. 3d at 221-222; County Counsel Opinion 88-98 . ) Public officials may be subject to criminal and civil penalties for the unlawful expenditure of public funds . At the very least, the officials authorizing the expenditure may be personally liable for the amounts unlawfully expended if in doing so they do not exercise due care (Stanson v. Mott, supra, 17 Cal. 3d at 226-227 ) and the Grand Jury may order suit to collect. In addition, courts have upheld felony convictions for public officials' misappropriation and unauthorized expenditure of public funds . (See People v. Battin (1978) 77 Cal.App. 3d 635; People v. Sperl (1976 ) 54 Cal.App. 3d 640 . ; Gov. Code, §§ 26525, 24054, 25062; Pen. Code, §§ 424, 932; Code Civ. Proc. , § 526 (a) ; County Counsel Opinion 80-98 . ) During a regularly scheduled meeting, a public body may vote to endorse a local ballot measure. Such an endorsement is not an effort to persuade the electorate and does not entail an improper expenditure of public funds . (League of Women Voters, supra, 203 Board of Supervisors -3- November 13, 1989 Cal .App. 3d at 560 . ) Moreover, public officials, solely as individuals, are free to advocate local ballot measures, and to join citizens' groups to that end. (See League of Women Voters, supra, 203 Cal .App. 3d at 555-56; County Counsel Opinion 89-109 . ) MAM/jh J-Z:\mam\memo\public.f