On June 22, 2016, The Agency’s Board of Directors adopted Ordinance 2016-01 for the adoption of the Transportation Agency for Monterey County’s Transportation Safety & Investment Plan and Retail Transactions & Use Tax; and authorized the Executive Director to request that the Monterey County Board of Supervisors place the measure on the November 8, 2016 ballot. The Monterey County Board of Supervisors voted unanimously on July 19, 2016 to adopt the ordinance and approved the Transportation Agency’s request to place the measure on the November 2016 ballot. Now that the Ordinance adopting a Transportation Improvement Plan and tax was approved to go to the voters for approval as part of the November, 2016 Presidential election, the TAMC Board and employees have certain responsibilities and constraints on proper discussion of this – and any – ballot measure.
The California Supreme Court has ruled that public funds (including publicly paid employee time) cannot be used “to mount an election campaign which attempts to influence the resolution of issues which [the California] Constitution leaves to the ‘free election’ of the people.” However, that Court has also ruled that “it does not necessarily follow . . . that the [entity is] without power to incur any expense at all in connection with the . . . election.” Vargas v. City of Salinas (2009) 46 Cal.4th 1, 24; Stanton v. Mott (1976) 17 Cal.3d 206. The key is to determine which activities are proper, and which are prohibited. Unfortunately, there is no “bright line” demarcation. It is not enough that the public entity has not “expressly advocated” a position. The
courts have allowed public entities to fund the communication of
“informational material,” but not to fund the conduct of “campaign
activity.”
The decision in Vargas v. City of Salinas examined the (1) content, (2) style, (3) tenor and (4) timing of the city’s materials challenged as unlawful expenditures. It found that the City provided factual information through well-established processes (regularly produced newsletters), in a manner that “avoided argumentative and inflammatory rhetoric,” and was not generated or disseminated at a time that was overtly tied to the election. Subsequent cases have followed this type of analysis in reviewing (and generally upholding) efforts of public entities to communicate information concerning the potential impacts of ballot measures.
It is fairly well established that public employees do not lose their First Amendment free speech rights, simply because they are employed by public entities. However, restrictions on when and how they may exercise those rights have also been upheld, as well as prohibitions on the use of public funds for “political activity.” The key is to determine which activities are proper, and which are prohibited. The purpose of Legal Counsel’s presentation is to help guide TAMC Board members away from potential problems.
Generally speaking, public employees may participate in political activity, but on their own time and with their own resources. Given the prohibition on the use of public funding, it is important for employees (including elected officials) to track time and resources used in order to be able to establish that no public funds are being used. Public bodies may fund informational activities related to ballot measures, provided that from an “objective observer” perspective, the materials or activities convey past and present facts, avoid argumentative or inflammatory rhetoric, and do not advocate or recommend how the electorate should vote. Care should be taken that the activities funded do not appear to be typical campaign type actions, such as paying for bumper stickers, buttons, advertisements or rallies. Care should also be taken that the information provided generally be in response to inquiries (FAQs should be permissible) and that the timing of providing the information not be specifically geared towards influencing the election.