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Staying Legal Through Election Season

  • October 14, 2014

October 14, 2014

As the November elections quickly approach, now is a good time for a quick review of the “dos and don’ts” for candidate and measure campaigns. This year we have seen more questions than usual about district involvement in and/or regulation of campaign activity. Below are a few of the basic rules districts need to remember, as well as answers to some of the frequently asked questions. While these guidelines should help to address many scenarios, DWK’s BETA group is available to provide quick advice on any specific questions districts may have.

Basic Guidelines

Nothing prevents district officials and employees from being involved in the upcoming November elections; in fact, this engagement is encouraged as long as some basic rules are followed.
District resources – anything a district owns or controls – may not be used for advocacy purposes or to support or oppose a candidate or measure.

District rules on facilities and communication channels must be followed. Districts may restrict all campaign activity from district facilities or communication channels; if a district allows campaign activity, it must provide equal access to all sides or candidates.

Districts should review their policies and regulations on these topics as the election approaches. Further to maintain consistency, we recommend that a district designate a single point of contact for all campaign activity/election related issues.

Frequently Asked Questions

1. May a district urge voters to vote “yes” or “no” on a measure or advocate for election of a candidate?

No. Statutes and case law prohibit a public agency from using its funds, services, supplies, and equipment to urge the support or defeat of any ballot measure or candidate. However, a school board may take a position on a local or statewide measure via motion or resolution as long as the item states the board’s position without urging a “yes” or “no” vote.

2. May a district provide information to the public about a measure?

Yes. But district resources may only be used to provide information to the public about a measure if the information provided constitutes a fair and impartial presentation of relevant facts to aid the electorate in reaching an informed judgment on the measure.

3. May a district organize voter registration drives?

Yes. So long as there is no advocacy, voter registration drives by districts are allowed and even encouraged under the law. If a district undertakes these activities, it is very important that the focus be solely on voter registration and encouragement to vote and not offer any message, flier or other information expressly advocating a position or candidate.

4. May district facilities be used for campaign activity?

Yes, if allowed by a district. District facilities may be, but are not required to be made available for campaign activities; in fact, many districts prohibit any campaign activity in their facilities. Districts should consult their policies on this question. If a district makes its facilities available for this purpose they must be made available to all sides. In all cases, district facilities should be made available to the public in accordance with the Civic Center Act (Ed. Code, ยง 38130 et seq.) and the District’s Civic Center Act policies.

5. May a district use its distribution channels to disseminate campaign materials prepared by a campaign committee or other non-district organization?

No. A district may not use its resources to fund or disseminate campaign materials that are prepared by a campaign committee or other non-district organization, even if the organization itself may normally be a politically neutral one, such as the local Parent Teacher Organization. Note that materials that may appear to be merely informational, but are prepared by a partisan committee such as a campaign committee, are considered partisan in nature.

6. May a district allow a union or other external organization to use the district’s internal distribution channels, such as employee mailboxes or bulletin boards, to distribute campaign materials?

Yes, but we advise against it. A district has discretion to open up its internal communication systems, including employee mailboxes, to organizations wishing to disseminate campaign-related information themselves. Districts should consult their policies on this question. If a district’s policy does open its communication systems for campaign materials, it must open up the forum to all organizations. Because of unintended consequences that may flow from opening up the forum, we recommend against allowing organizations to use a district’s internal communication systems.

7. May a district allow a Parent Teacher Organization to distribute campaign materials at a back-to-school night?

Yes, but we advise against it. A district may allow outside groups to conduct campaign activity at its facilities (as long as no District resources are used), but if a district allowed a separate organization such as a PTO to hand out campaign materials, it would also have to allow equal access to any other political groups or candidates who requested access to oppose a measure or advance their candidacy. As with the use of internal distribution channels for campaign purposes we advise against allowing this type of activity to avoid unintended consequences.

8. May district employees campaign for or against a measure or candidate?

Yes, but only on their own time without using district resources. The prohibition against use of district funds includes indirect uses of funds, such as use of an employee’s time to campaign. District board members and employees may, however, engage in campaign activities when they are not on district working time, including before and after school, during lunch, and during break times as well as on personal off duty time. Note, however, that even on off duty time, district board members and employees are prohibited from using district resources for campaign activities.

9. May a district prohibit teachers from wearing campaign buttons during classroom instruction? What about at a back-to-school night?

Yes to the first part of the question. A district has broad authority to refuse to sponsor speech which might reasonably be perceived to associate it with any position on political matters. When teachers are teaching students they are acting with the imprimatur of the district, thus a district can prohibit teachers from wearing political buttons during this time.

No to the follow-up question. When teachers are not instructing students, however, there is less of a risk that the button may be associated with the district which prevents a district from prohibiting the button at that time. A district therefore may not prohibit teachers from wearing buttons in any non-instructional settings including break rooms and back-to-school nights.

A Take-Home Point: There are serious repercussions for violating laws pertaining to campaigning restrictions, but negative publicity may also arise when there is a perception that public funds have been misspent. If your district is unsure about the legality of a particular item or activity, please consult with legal counsel in advance. We can generally respond to these requests very quickly and are glad to do so.

PRACTICE AREAS
  • Board Ethics, Transparency and Accountability

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