OPINION NUMBER - 095

ADOPTED - 1986/10/31

SUBJECT - LB662; Use of Public Resources for Political Activities.

REQUESTED BY: Douglas C. Christensen, Superintendent, North Platte Public Schools

QUESTION: May the North Platte Board of Education approve a resolution supporting passage of LB662/Referendum 400 in the November 4th election, provided that such approval would be the board's only action to support the measure?

CONCLUSION

Yes. See Analysis

FACTS

We understand that at its regular meeting on October 13, 1986 the North Platte School Board gave tentative approval pending best interest of the school and citizens of North Platte to support LB662/Referendum 400 with the understanding that there will be a considerable shift of public support for education away from property taxes and that the North Platte Public Schools is committed to utilization of increased state funding for corresponding reduction of local property taxes.

The board provided a two-week period for public comment and plans to vote on final approval of the resolution at the board's regular meeting on October 27. In its letter requesting this advisory opinion the board indicates its intention that passage of the resolution is the full extent of its involvement in the matter of the LB662/Referendum 400 ballot question. The board has requested this Commission to consider its actions and advise as to their propriety under the Accountability and Disclosure Act.

ANALYSIS

Reference is made to NADC Advisory Opinions Number 68 and 82 concerning permissible activities by public officials relating to ballot questions. In those opinions the Commission has stated that, under the Nebraska Political Accountability and Disclosure Act, a public official or employee may express his or her position regarding a ballot question, and may even urge voters to vote for or against the ballot question, provided that governmental personnel, resources, property, or funds are not used for that purpose, or are used only incidentally, and provided that, in the case of a public employee, he or she does not engage in political activities during office hours or while performing his or her official duties.

Section 49-14,101(4) of the Accountability Act prohibits a public official or employee from using personnel, property, resources, or funds under that person's care other than in accordance with prescribed constitutional, statutory, and regulatory procedures. In accordance with the Commission's previous advisory opinions, and based on the facts presented, the Commission does not believe that passage of the above-stated resolution by the North Platte School Board would violate section 49-14,101(4). In coming to this conclusion, we assume that only an incidental use of public resources --i.e. the board's meeting time -- would be involved, and that no additional actions will be taken nor funds expended by the board to promote passage of LB662/Referendum 400.

Arguably, there are potential benefits to the public interest when a public policy-making body such as the School Board takes a position on a matter which is within their official area of concern. These benefits include the generation of public interest and debate; informing citizens of their elected representatives' stand on the issue; and furthering the discharge of the board's duty to promote the interests of the schools. See: King County Council v. Public Disclosure Commission, 93 Wash. 2nd 559, 611 P 2d 1227 (1980).

In Citizens to Protect Public Funds, et. al. v. Board of Education of Parsippany - Troy Hills Township, 13 N.J. 172, 98 A 2d 673 (1953), a case involving an expenditure of public funds by a school board to distribute a booklet promoting a favorable vote on a school bond issue, now U.S. Supreme Court Justice William Brennan, Jr. said:

We do not mean that the public body formulating the program is otherwise restrained from advocating and espousing its adoption by the voters. Indeed . . . when the program represents the body's judgement of what is required in the effective discharge of its responsibility, it is not only the right but perhaps the duty of the body to endeavor to secure the assent of the voters thereto . . . the reasonable expense, for example, of the conduct of a public forum at which all may appear and freely express their views pro and con would not be improper. --Citizens to Protect Public Funds v. Board of Education, 98 A 2d at 677

We do not believe the free election process will be distorted or endangered by the board's simply taking a stand on LB662 at an open and public meeting where members of the public may express their views, pro and con.