Improper Use of Public Funds Can Land You in Hot Water

By Scott C. Smith and Matthew Richardson, Best Best & Krieger LLP

As November elections and some major ballot measures loom, and as 2016 general election candidates start copping to “thinking about a run,”now seems a good time to revisit the impartiality required of public agenciesand their employees when it comes to election ballot matters.

Running afoul of these important laws regarding the use of public funds and advocacy can land a public agency and/or its employees in hotwater, but compliance really just requires some common sense and presence ofmind.

Use of Public Funds

California law allows public agencies to expend public money and resources to educate voters on matters included on an upcoming ballot.State law does not permit using public money or resources to advocate onbehalf of, or attempt to influence voters on election matters. In short, apublic agency may not encourage “yes” or “no” votes, but may expendpublic funds on informational activities that provide a fair representation ofthe facts surrounding a ballot measure. In short, education is permitted; advocacy is not.

The prohibition on the use of public funds for traditional campaigningpurposes is founded on the principle that proponents and opponents of alocal proposition have an equal right and interest in the use of local publicmonies and resources. Selective and imbalanced use of public funds inelection campaigns improperly distorts the democratic process.

Although no particular rule governs every case, the following factors help distinguish between improper campaigning activities and proper, informational activities:

  • Balanced Presentation. Legitimate informational activities are those that present information relevant to both sides of an issue, includingpotentially positive and negative impacts. One way to ensure abalanced presentation is to provide measure opponents (who, bydefinition, might not have had a hand in crafting the ballot measure)actual access to publications so they may provide their contrary pointof view.
  • Campaign Materials. Public monies should not fund items such as bumper stickers, posters, advertising floats or television or radio spotsurging a particular vote on a measure.
  • Public Meetings. The agency’s view on a measure may be expressed ata noticed public meeting because individuals in opposition to theagency’s view are afforded an opportunity to speak out. In thissituation, the agency is not limited to providing a fair presentation ofthe facts, and members of the governing board may advocate for oragainst a measure.
  • Use of Public Resources. Using public resources to influence voters ona measure is not permitted. Public resources include any propertyowned by the agency, including buildings, facilities, funds, equipment,telephones, supplies, computers and vehicles. Public resources also include the use of agency staff. Therefore, correspondence favoring oropposing a measure should not be authored by agency employeesduring working hours.

Preparing or Developing a Ballot Measure (Before Inclusion on the Ballot)

One of the primary functions of elected and appointed officials is to devise legislative proposals to implement the current administration’s policies. Consequently, courts have held that a public agency may prepare,develop and draft proposed legislation, including a ballot measure, to besubmitted to the voters. A public body’s ability to prepare and present aballot measure probably includes some ability to publish and disseminate it,but these activities should not exceed what is statutorily prescribed under theElections Code and what the agency normally does in connection with public notification of other minute motions, resolutions and ordinancesordinarily adopted by the agency.

Campaigning by Officials

As discussed above, the use of public funds in connection with a ballot measure is restricted to informational activities. However, when theuse of public funds or resources is not involved, this restriction does notapply. Therefore, agency officials may attend rallies and neighborhoodmeetings, or go door-to-door, as long as they do not represent that they aredoing so in connection with official business and are not using public fundsor time in connection with such activities. Where agency time or funds areinvolved, the effort must be strictly limited to providing objectiveinformation to the public. It is also important to note that public employees are specifically prohibited from participating in any sort of political activitywhile in uniform.

Officials who wish to participate in activities concerning ballot measures may do so in their individual, as opposed to official, capacity.

They may also expend their own personal funds on a measure and identifythemselves as being affiliated with the agency in any presentation orpublication advocating for or against the passage of the measure. However,it should be clear that such presentation or publication is paid for with theofficial’s personal funds, or some other funding source, and not with publicfunds.

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Scott C. Smith is a partner in the Irvine office of Best Best & Krieger LLP where Smith_Scotthe specializes in municipal, land use and environmental law. He currently serves as contract city attorney for the Cities of Aliso Viejo and Lake Forest. He can be reached

Matthew Richardson is a partner in the Municipal Law practice group at Best Best & Krieger LLP and is based in the firm’s Irvine office. He currently serves as assistant city attorney for the cities of Lake Forest, Azusa, and Richardson_MatthewMammoth Lakes. He can be reached