OPINION NUMBER - 068

ADOPTED - 1984/07/20

SUBJECT - Conflict of Interests; a public official taking a position in opposition to a ballot question.

REQUESTED BY: The Honorable Roland A. Luedtke, Mayor, City of Lincoln, County City Building, Lincoln, NE 68508

QUESTION: Whether a public official must maintain neutrality and refrain from taking a position against a ballot question?

CONCLUSION

A public official or public employee may express his or her position with regard to a ballot question and may even urge voters to vote for or against the ballot question, provided that government personnel, resources, property or funds under that official's care and control are not used for that purpose, and provided further in the case of a public employee that he or she does not engage in such political activity during office hours or when otherwise engaged in the performance of his or her official duties.

FACTS

At the time of the request for advisory opinion one or more political committees were circulating petitions to qualify several issues for the November 1984 General Election state-wide ballot. It is the opinion of the official requesting the advisory opinion that if adopted by the voters such ballot questions would have adverse financial and other effects on the operations of his city. The request for advisory opinion refers to an "accusation" of one of the supporters of the petition drive against a school board, which may have adopted a resolution expressing opposition to the ballot questions, which he subsequently broadened to include all public officials in the state. According to the request for advisory opinion, the supporter's basic contention is that state law prohibits a public official from expressing that official's preference on a ballot issue and, in fact, compels a position of neutrality on the part of such officials.

ANALYSIS

Under the facts stated above, the issue, as far as the Nebraska Political Accountability and Disclosure Act is concerned, is whether government personnel and resources would be used for a non-governmental purpose. Section 49-14,101(4) of the Accountability Act provides that no public official or public employee shall use personnel, resources, property or funds under that individual's official care and control, other than in accordance with prescribed constitutional, statutory, and regulatory procedures, . . ..

Section 23-3001 of the Revised Statutes of Nebraska provides that unless specifically restricted by federal law or any other state law, no employee of the state or any political subdivision thereof . . . shall be prohibited from participating in political activity except during office hours or when otherwise engaged in the performance of his or her official duties.

Mountain States Legal Foundation v. Denver School District, 459 F.Supp. 357 (D. Colorado, 1978) is a case involving a section of the Colorado Campaign Reform Act which provided that state agencies and political subdivisions may make contributions or contributions in-kind in campaigns involving only issues in which they have an official concern. The court held that such a statute did not authorize a school district to enact a resolution authorizing expenditure of school district funds to attempt to defeat a proposed amendment to the Colorado Constitution and held that use of power or publicly owned resources to propagandize such a proposal is an abridgment of fundamental freedoms of speech and the right of the people to petition the government for regress of grievances. However, the case recognizes that public funds and facilities may be used to inform the electorate about an issue so long as fairness and neutrality are maintained in that effort.

In Stanson v. Mott, 551 P.2d 1, the California Supreme Court stated: "Frequently, however, the line between unauthorized campaign expenditures and authorized informational activity is not so clear. Thus, while past cases indicate that public agencies may generally publish a 'fair presentation of facts' relevant to an election matter, in a number of instances publicly financed brochures or newspaper advertisements which have purported to contain only relevant factual information, and which have refrained from exhorting voters to "Vote Yes," have nevertheless been found to constitute improper campaign literature. (Citations omitted.) In such cases, the determination of the propriety or impropriety of the expenditure depends upon a careful consideration of such factors as the style, tenor and timing of the publication; no hard and fast rule governs every case."

The plaintiff's petition in the Mott case alleged that Mott, the head of a state agency, authorized the dissemination of agency publications which were not merely informative but promotional and sanctioned the distribution at public expense of promotional materials written by a private organization formed to promote the passage of a bond act.

See also King County Council v. Public Disclosure Commission, (Washington Supreme Court #46515, May 22, 1980), which reversed a decision of the Washington Public Disclosure Commission that four members of the King County Council violated a Washington state statute prohibiting the use of facilities of a public office to promote or oppose an individual's candidacy or a ballot proposition. The ballot proposition in question was a state wide anti-pornography initiative.

Neither the statutes nor the cases cited above prohibit a public official or public employee from expressing his First Amendment right of free speech. In fact, section 23-3001 encourages such expression so along as the same does not amount to participating in political activities during office hours or when otherwise engaged in the performance of official duties.

A specific authorization or use of public funds, property or personnel to campaign for or against a ballot question is prohibited. However, a government body or public official may use public employees, property and funds to disseminate factual information on the effects of a ballot question so long as that information does not urge a vote for or against the ballot question. It is conceded that in doing so, there is a risk of the material being construed as advocating a vote.

If a public official calls a press conference to state a position on a ballot question, and that is either the sole or primary purpose for the press conference, a violation of section 49-14,101(4) may be involved. On the other hand, a public official responding to questions from the public or the news media concerning his position on a ballot question is proper and within the scope of his First Amendment right of free speech.

Public employees may, of course, respond to questions and give their opinions on a ballot question, and may do so even during office hours. Allegations of engaging in political activity would have to be analyzed on a case by case basis.

In summary, a public official or public employee may express his or her personal opinion on a ballot question in response to being questioned on the subject or otherwise so long as public resources and facilities are used only incidentally. Government personnel, resources and property may be used to make public factual information with respect to a ballot question but not to advocate a vote.