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Home My WebLink AboutMINUTES - 05121992 - IO.1 TO: BOARD OF SUPERVISORS 1 r . Contra FROM: INTERNAL OPERATIONS COMMITTEE - Costa County DATE: May 4, 1992 °sTq C�UK� REPORT ON THE BOARD'S ABILITY TO PUBLICIZE THE NAMES OF SUBJECT: CANDIDATES WHO HAVE AND HAVE NOT SIGNED THE FAIR CAMPAIGN PLEDGE AND TO IMPOSE SANCTIONS AGAINST THOSE WHO SIGN THE PLEDGE AND THEN VIOLATE ITS TERMS SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATION: Request the County Counsel 's Office to advise the Internal Operations Committee on June 8, 1992 whether it would be legal for the Board of Supervisors to offer to only those candidates who sign the Fair Campaign Pledge additional space in the Voters Handbook to expand on their views of the issues, if all of the additional cost of such additional space and its distribution to the voter is borne by the candidates themselves . BACKGROUND: On February 11, 1992, the Board of Supervisors requested the County Counsel ' s Office to determine whether within the "compelling state interest" exception of the Williams v. Rhodes decision there is any way that the County can provide something of value to a candidate in return for that candidate's permission to advise the public whether the candidate had signed the Fair Campaign Pledge and if a candidate did sign the Pledge, to impose penalties or sanctions on a violation of the Pledge and report their opinion to the Internal Operations Committee. On May 4, 1992, our Committee considered the attached report from the County Counsel ' s Office which rather definitively states that "The county cannot provide and a candidate cannot accept, public monies for the purpose of seeking elective office" . The County Counsel ' s Office reasons that providing goods or services instead of monies would not be acceptable as an alternative to monies . CONTINUED ON ATTACHMENT: YES SIGNATURE: RECOMMENDA:z:ER R RECOMMENDATION OF BOARD COMMITTEE APPROVE SIGNATURE S: SUNNE WRIGHT McPEAK ACTION OF BOARD O May 12, 1992 APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS �j I HEREBY CERTIFY THAT THIS IS A TRUE XUNANIMOUS(ABSENT ✓ ) AND CORRECT COPY OF AN ACTION TAKEN AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN. p CC: County Administrator ATTESTED / r1 County Counsel District Attorney PHIL BATCHELC# CLERK OF THE BOARD OF County Clerk-Recorder SUPERVISORS AND COUNTY ADMINISTRATOR Assistant County Registrar BY � ,DEPUTY M382 (10/88) -2- Our Committee, while disappointed with this opinion, accepts, reluctantly, its advice. We explored however, another variation of this theme, under which we would seemingly avoid the "public monies" issue by requiring that the additional costs of the expanded services which might be extended to those candidates who signed the Fair Campaign Pledge would be borne by the candidates themselves . We are asking that the County Counsel ' s Office be asked to research this issue and report their conclusions back to our Committee next month. Such expanded space would, however, be available only to those candidates who had signed the Fair Campaign Pledge. r COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTINEZ, CALIFORNIA Date: March 29, 1992 To: Internal Operations Committee From: Victor J. Westman, County Counsel By: Mary Ann McNett Mason, Deputy County Counsel lw•4. 1�1 o Re: No Provision of Public Money to Candidate Summary: In response to the Internal Operation's Committee's request of February 12, 1992, we advise that the county cannot provide something of value to a candidate in return for that candidate ' s permission to advise the public whether the candidate signed the Fair Campaign Pledge and if so, to impose penalties or sanctions for violation of that pledge. The county cannot provide and a candidate cannot accept, public monies for the purpose of seeking elective office. (Government Code section 85300 . ) Background: The committee asked whether within the "compelling state interest exception" of Williams v. Rhodes ( 1968) 393 U.S . 23, 21 L.Ed.2d 24 , there is any way that the county could provide something of value to a candidate in return for that candidate 's permission to advise the public whether the candidate signed the Fair Campaign Pledge and if so, to impose penalties or sanctions for violation of the pledge. Discussion: Government Code section 85300 provides : "No public officer shall expend and no candidate shall accept any public moneys for the purpose of seeking elective office. " "Public moneys" include all monies belonging to the county and held by county officers in their official capacity. (Gov. Code S 85102 (e) ; Penal Code§426 . ) We do not think that the provision of goods or services, instead of money, would fall outside section 85300. The Political Reform Act, in Government Code section 85102 (e) , incorporates the definition of "public moneys" found in Penal Code section 426 . That section defines public monies. for the , purposes of Penal Code section 424 which prohibits embezzlement and misappropriation by public officers . The unauthorized private use of county cars and services of drivers on county time is a misappropriation of public monies within the meaning of Section 424 . (Penal Code SS 424, 426; People v. Sperl ( 1976) 54 Cal .App. 3d 640, 658. ) Similarly, we previously concluded that in-kind contributions of property not involving payments of money are "contributions" for Internal Operations Committee -2- April 29, 1992 purposes of the Political Reform Act. (Gov. Code S§ 82015, 82044; see our advice to the Internal• Operations Committee of January 22, 1992 (County Counsel Opinion 92-6) and to the County Administrator of September 6, 1988 (County Counsel Opinion 88-166) citing FPPC Advice letter No. A-85-044, Feb. 1985 . ) In our view, a- reasonable interpretation of "public moneys" as used in section 85300 includes . goods and services, insofar as public funds are used to provide the goods and services . Section 85300 prohibits any public financing of campaigns . (See for example County of Sacramento v. Fair Political Practices Commission ( 1990) 222 Cal . App. 3d 687 holding that section 85300 prevailed over a provision of the county charter providing for partial public financing of contests for county elective officials . ) Providing something of value to a candidate for county office (i .e. absorbing the cost of printing his candidate' s statement) in exchange for certain promises concerning the Fair Campaign Pledge would contravene the prohibition on public financing of campaigns . The benefit would be extended to, and accepted by the candidate for the purpose of 'campaigning for office. The fact that the county would receive in exchange from the candidate certain authorizations respecting the Fair Campaign Pledge, would not remove the matter from the purview of section 85300 . (See also 73 Ops . Cal . Atty. Gen. 250, 253 (August 1990) opining that public funds may not be used to promote initiative or referendum measures absent clear legislative authorization, citing Stanson v. Mott ( 1976) 17 Cal . 3d 206, Miller v. Miller ( 1978) 87 Cal . App. 3d 762, and League of Women Voters v. Countywide Crim. Justice Coordinating Com. ( 1988) 203 Cal .App. 3d 529 . ) We note that some provisions of the voluntary Fair Campaign Pledge are independently enforceable under other provisions of law. (i .e. section 8 concerning reporting and disclosure of contributions and expenditures) . Other provisions such as the requirement that the candidate engage in debate, refrain from misrepresentations in campaign materials and limit expenditures to $150,000, restrict First Amendment rights . Any local regulation attempting to limit these rights, i .e. a provision permitting a candidate to authorize the imposition of sanctions for violation of the pledge, is not likely to withstand constitutional challenge. As we advised the Committee in our memorandum of February 6, 1992,. the right to freedom of speech generally includes the right to communicate without prior restraint. (First Natl . Bank of Boston v. Bellotti ( 1978) 435 U.S. 765, 55 L.Ed.2d 707:,. ) Even with the candidate's prior authorization, the possibility of sanctions for violation of the voluntary pledge, which incorporates restrictions on the content of speech and the amount of expenditures, would have a coercive effect on the candidate to either comply with the pledge or be subject to the sanctions . This would be an unlawful prior restraint on political speech in which the candidate could otherwise lawfully engage. b: \pledge.m