This article is adapted from a resource provided by the Institute for Local Government (ILG), the nonprofit research and education affiliate of the League, California State Association of Counties and the California Special Districts Association. ILG’s mission is to promote good government at the local level with practical, impartial and easy-to-use resources for California communities. For more information, visit www.ca-ilg.org.

Public agencies play an important and ongoing role in contributing to the public’s access to information on important issues, including ballot measures. Regarding issues that either may be or are on the ballot, two areas of law apply to public agency communications activities:

1. A body of case law articulating what public agencies may and may not do with public resources to communicate their views on ballot measures; and
2. Campaign restrictions and transparency requirements set forth in the state’s Political Reform Act.

Given the importance and relationship of ballot measures to policymaking, public agencies and officials face important restrictions and requirements related to ballot measure activities.

The basic rule is that public resources may not be used for ballot measure campaign activities. Public resources may be used, however, for informational activities. The key difference between campaign activities and informational activities is that campaign activities support or oppose a ballot measure, while informational activities provide accurate context and facts about a ballot measure to voters.

This article summarizes some of the key applications of these principles. The law, however, is not always clear and the stakes are high. Missteps in this area are punishable as both criminal and civil offenses. Always consult your agency counsel for guidance on how these rules apply in any specific situation.

Understanding What’s Permissible Under the Law 

Public agency resources may be used to:

• Place a measure on the ballot;
• Prepare and distribute an objective and fact-based analysis on the effect a ballot measure may have on the agency and those whom the agency serves;
• Express the agency’s views about the effect of the measure on the agency and its programs, provided that the agency is exceedingly careful not to advocate for or against the measure’s passage;
• Adopt a position on the measure, as long as that position is taken at an open meeting where all voices have the opportunity to be heard; and
• Respond to inquiries about the ballot measure in an objective and fact-based manner.

Agency communications about ballot measures should not contain inflammatory language or argumentative rhetoric.

Public employees and elected officials may, on their own time and using their own resources, engage in the following activities:

• Work on ballot measure campaigns or attend campaign-related events on personal time (for example, evenings, weekends and lunch hours);
• Make campaign contributions to ballot measures, using one’s own money or campaign funds (while observing campaign reporting rules); and
• Send and receive campaign-related emails using one’s personal (non-agency) computer and email address.

Restrictions on Public Officials’ Activities

Public officials should not:

• Engage in campaign activities while on agency time or using agency resources;
• Use agency resources (including office equipment, supplies, staff time, vehicles or public funds) to engage in advocacy-related activities, including producing campaign-type materials or performing campaign-related tasks;
• Use public funds to pay for campaign-related expenses (for example, television or radio advertising, bumper stickers or signs) or make campaign contributions; or
• Use agency computers or email addresses for campaign communication activities. 

Best Practices

Public agencies are well-advised to implement these best practices:

1. Inform agency employees and public officials about these legal restrictions, particularly when a ballot measure affecting the agency has qualified for the ballot; and
2. Include language on informational materials to clarify that the materials are provided for informational purposes only — for example, “These statements shall not be construed in support of or against (title of) ballot measure.”

When in the Process Do These Restrictions Apply?

The rules against the use of public resources for campaign activities are triggered as soon as a measure has qualified for the ballot. There may be more latitude before a measure has qualified, but local officials and staff should consult their agency counsel regarding the permissibility of specific activities.

Disclosure Requirements

Ballot measure activities that cross the line into advocacy are also subject to disclosure (transparency) requirements under California’s Political Reform Act (California Government Code Sections 81000 and following).

Photo Credit: Xavierarnau.