Earlier this year, the California Supreme Court attempted to answer this question in Vargas v. City of Salinas. While some ambiguities remain, the Court helped clarify what constitutes permissible communications.
California law prohibits “communications that expressly advocate the approval or rejection of a clearly identified ballot measure,” but what exactly does this mean? According to The Court, there are two tests for whether or not a communication is express advocacy. The first is the “bright-line standard” which is exactly what it sounds like. If a public entity asks a voter to vote for or against a measure, that is express advocacy and not allowed.
However, public entities and their consultants have become more skilled at working in the “gray areas” so the court tried to address more subtle advocacy. To do so, the court articulated the “style, tenor and timing” test. In this case, the public entity is not asking a voter to vote for or against a measure, however “taken as a whole, [the communication] unambiguously urges a particular result in an election.”
The Court goes on to give some examples that help interpret this language. It is fine for a public entity to convey information regarding the merits and budgetary implications of a proposed ballot measure, but it must avoid being “argumentative or inflammatory.” The court also considered how a city or other public jurisdiction communicates its message. A public entity is allowed to inform the public about a revenue measure through its regular newsletter, website or meeting minutes, but not through traditional campaign vehicles such as television and radio spots, signs, and canvassing.
The Court has affirmed that communications between the public entity and citizens is important, but the style, content and manner in which the communication takes place determine whether it is permissible. The Court states that a public entity is allowed to disseminate a document listing the service or program cuts implicated by the revenue measure, and place articles describing implications of the ballot measure in regular editions of a newsletter to residents.
If a public entity is engaged in ongoing communication with its voters, then a factual message about the implications of passing or not passing a revenue measure is permissible. If however, the public agency only communicates with voters when they are placing a measure on the ballot or after a measure has been placed on the ballot, then it looks more like impermissible campaigning.
In my book Sidewalk Strategies, written seven years ago, I pointed out that “Few public agencies (school districts, college districts, and local governmental agencies) do an adequate job communicating to voters unless they need something from them.” Today it is even more important to keep voters informed about their accomplishments and challenges.
Unfortunately in the era of budget cuts one of the most important things a public entity should do is the first thing that is eliminated. The Vargas decision is just one more reason why it is important for all public entities to stay in touch with the community – not just when they need to pass a tax measure.For more information, please visit Tramutola LLC