OPINION NUMBER 089

ADOPTED 1986/03/21

SUBJECT - Use of Government Resources for a Public Information Program Related to a Ballot Question

REQUESTED BY: Michael Nolan, City Administrator, City of Norfolk

QUESTION: May the City use municipal resources for the following purposes: to prepare and distribute to citizens information concerning the City's needs for new or remodeled fire and police facilities where this information relates directly to a May 13, 1986 ballot question; for elected officials and employees of the City to present information relating to a ballot question through speaking engagements before citizen groups; to provide information relating to a ballot question using the local cable television channel.

CONCLUSION

See Analysis.

FACTS

Norfolk's mayor and city council have placed the issue of whether to construct a new police station and remodel the city's fire station on the city's May 13, 1986 primary election ballot, despite the fact that funding for the projects is already available and a bond issue is not necessary. The city's elected officials are interested in conducting a public information program on the public safety facilities issue prior to the May 13 primary. Specifically, they propose:

(1) Preparation of an information package to be sent to every utility customer, containing a fact sheet (which would probably be signed by all the elected officials) and a separate notice listing times of cable television broadcasts where police and fire representatives present needs assessments of each of the facilities.

(2) Taping for later broadcast of tours or slide shows of current police and fire facilities discussing current operational dysfunctions and space needs.

(3) Speeches by police and fire employees before senior citizens groups, service clubs and other community organizations.

(4) A Town Hall Meeting in April where the information program of fact sheets and slides would be presented and the architect would be available to discuss preliminary concept renderings of both facilities. A Town Hall Meeting notice in the same format as any other public meeting notice would be mailed beforehand to every utility customer.

(5) Shortly before the Town Hall meeting, a press conference would be scheduled to have the information about the design concept drawings released to the news media.

In conducting the public information program, the city's officials and staff want to avoid any inappropriate statements which might violate the Accountability Act. Therefore, the city administrator has addressed the above-stated questions to the Commission.

Section 49-14,101(4) of the Nebraska Political Accountability and Disclosure Act provides:

"No public official or public employee shall use personnel, resources, property, or funds under that individual's care and control other than in accordance with prescribed constitutional, statutory, and regulatory procedures, or use such items, other than compensation provided by law, for personal financial gain."

In Advisory Opinion Number 68, which concerned whether a public official must maintain neutrality and refrain from taking a position on a ballot question, the Commission held that 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 the information does not urge a vote for or against the ballot question.

In Advisory Opinion Number 82, concerning what activities and statements by the Commissioner of Education would be permissible concerning the referendum to repeal LB 662, we reiterated our position that government resources and property may not be used to advocate a position on a ballot question; however, information discussing both sides of the question could be printed by the Department of Education.

We said, "to educate, to inform, to advocate to promote voting on any issue may be undertaken provided it is not to persuade nor to convey favoritism, partnership, partiality, approval, or disapproval . . . of any issue, worthy as it may be."

In Citizens to Protect Public Funds v. Board of Education of Parsippany - Troy Hills, 13 N.J. 172, 98 A2d 673 (1953), the Supreme Court of New Jersey, in an opinion by now Mr. Justice Brennan of the United States Supreme Court, discussed the use of municipal funds to seek support for a school bond issue, saying, "We are persuaded, however that simple fairness and justice to the rights of dissenters require that the use by public bodies of public bodies of public funds for advocacy be restrained" in the absence of express legislative authorization. 13 N.J. at 182, 98 A2d 673, 678. The court endorsed the use of public funds for expression of views pro and con, however.

"It is the expenditure of public funds in support of one side only in a manner which gives dissenters no opportunity to present their side which is outside the pale."

And in Anderson v. City of Boston, 308 N.E. 2d 628 (1978), in which the City of Boston was enjoined from spending funds to influence the result of a statewide referendum, the court said, "Fairness and the appearance of fairness are assured by a prohibition against using public tax revenues to advocate a position which certain taxpayers oppose."380 N.E. 2d at 639. and later, ". . . the City's use of telephones and printed materials provided by public funds would be improper, at least unless each side were given equal representation and access."--Id at 641.

According to the request for advisory opinion, it appears that the City of Norfolk does not intend to promote or advocate a position on the public safety facilites ballot question, but rather seeks to provide information only to the public. In response to the specific questions presented by the city, the Commission responds as follows.

First, the City of Norfolk may use public funds to prepare and distribute information on space needs for and proposed improvements to public safety facilities, provided that the information is presented in a balanced, factual manner, and that it does not advocate or oppose the ballot question or attempt to persuade the voters. Production of the fact sheet provided the Commission which has been prepared as a source of public information on public safety facilities in Norfolk would, in our opinion, be a permissible use of public funds.

Concerning public speaking on public safety facility space needs and proposed improvements by elected city officials and employees if the intent is to provide a balanced and factual presentation of information without advocating or opposing the matter to appear on the ballot, such presentations before citizen groups would be considered appropriate, and could be accomplished on city time. However, if an official or employee will be advocating a position on one side or the other of the issue, such a presentation should not be given on city time, or prepared or traveled to using city resources. (i.e. use of city automobiles, office equipment, telephones, etc.)

Finally, concerning the use of the local access cable television channel in the city's public information program, we believe such a use would be proper assuming: (1) that others interested in airing their views on the proposed improvements would also be allowed access to the local channel, and (2) that the city's presentation was factual and balanced and did not promote or oppose the ballot question matter.