OPINION NUMBER - 143

ADOPTED - 1994/04/22

SUBJECT - Campaign Financing/Use of public funds and resources.

REQUESTED BY: Michael Nolan, Norfolk City Administrator.

QUESTION: 1) May city officials and city employees engage in certain specified activities in connection with a ballot question? 2) May information pertaining to a ballot question be printed and distributed at city expense?

CONCLUSION

As to question #1, see Analysis. As to question #2, yes if the printed information conforms to certain guidelines.

FACTS

The Mayor and City Council of Norfolk recently decided to place a one-half of one percent local sales tax option on the May 10, 1994 Primary Election ballot. If passed, the funds generated from this one-half of one percent local sales tax would be used for an accelerated street improvement program consisting of nine specific projects. City officials are interested in providing information to the public prior to the election date. The city is proposing that certain city officials and city employees communicate information to the public through the following process:

A. Preparation of an information package to be included with the regular quarterly community newsletter, which is mailed to every utility customer. The package would contain a fact sheet signed by elected officials and a separate notice listing the times of cable television broadcasts.

B. A cable television interview with elected officials discussing the one- half of one percent city sales tax option, the accelerated street improvement projects, estimated costs and other information related to the ballot question.

C. Public presentations by elected officials and employees before service clubs and other community organizations regarding the one-half of one percent city sales tax option, the accelerated street improvement projects, estimated costs and information related to the ballot question.

D. Several press conferences at which information regarding the one-half of one percent city sales tax, the accelerated street improvement projects, estimated costs and information related to the ballot question may be discussed.

You state that in conducting this public information program, the elected officials and city employees will avoid advocating in favor of or in opposition to the sales tax issue. They will provide information only. Express or implied advocacy will be avoided.

The City of Norfolk poses a series of questions as to whether certain activities would be in compliance with the Nebraska Political Accountability and Disclosure Act.

ANALYSIS

During the past ten years the Commission has frequently had the opportunity to address the question of the use of public personnel, resources, property, and funds in connection with a ballot question. When addressing this question the Commission has considered Section 49-14,101(4) which provides:

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, or use such items, other than compensation provided by law, for personal financial gain.

The Commission has regularly interpreted this statute as prohibiting the use of public personnel, resources, property, or funds for the purpose of supporting or opposing the nomination or election of a candidate. It has similarly interpreted this section as prohibiting the use of public personnel, resources, property or funds to support or oppose the qualification or passage of a ballot question. A full discussion of this interpretation may be found in Commission Advisory Opinions #68, #82, #89, #95, #112, #113, and #128.

The Commission has acknowledged, however, that a unit of government may be the best source of information needed by the public to fully understand a question which is appearing on the ballot. Therefore, the Commission has taken the position that information may be supplied by a public official, public employee or unit of government as long as the information does not advocate a yes vote or a no vote.

A continuing difficulty is knowing when the line has been crossed between information and advocacy. Advocacy may be express and open by exhorting the public to "Vote Yes." Advocacy may also be implicit, subtle, and presented under the guise of "information."

In the hypothetical situation of a local school board submitting a ballot question to the public consider the following texts of informational flyers sent out by the school board:

Text A

The school system is designed for 500 students. Currently there are 600 students enrolled. Demographic studies of preschoolers in the district show that in four years the school will have 850 students. The bond issue will result in new classrooms being built which will allow for the accommodation of 900 students. Bonds will be paid through real estate taxes. This will increase by $75.00 per year the real estate tax on a home valued at $50,000.00. The total cost for this project is $1 million dollars.

Text B

The school system is designed for 500 students. Currently there are 600 students squeezed into existing facilities. Demographic studies of preschoolers in the district show that in four years there will be an explosion of students which will result in 850 students being packed into the school like sardines. The bond issue will result in the construction of new classrooms which will accommodate a total of 900 students in a modern and safe environment. The owner of a home with the value of $50,000.00 would pay a mere .22 cents a day to insure that our children have adequate school facilities.

Both Text A and Text B provide information, but Text B also contains the message that for mere pennies per day a terrible situation can be rectified.

In Advisory Opinion #128 we stated:

While public funds may not be used to advocate a position on a ballot question, such funds may be used to inform the electorate about an issue so long as fairness and neutrality are maintained . . . That is, public funds may be used to prepare and distribute information provided the information is presented in a balanced, factual manner and it does not advocate or oppose a ballot question or attempt to persuade the voters.

The foregoing remains a good test as to whether "information" is actually information or advocacy. However, an actual determination must be made after considering all relevant circumstances. The relevant circumstances will vary from situation to situation. In applying this test to Text A and Text B, it is apparent that Text A is information. It discloses what the bond issue is about (building classrooms), it discloses why the bond issue is being submitted (projected increase in school population), how it will be paid for (property taxes), and how much it will mean to a property owner in realistic terms. That is, it is presented in a balanced, factual manner and it does not advocate or oppose the ballot question or attempt to persuade the voters. It is fair and neutral. Text B is none of these things. The status quo is described in negative terms. Students are "squeezed into existing facilities." There will be "an explosion of students" and they will be "packed into the school like sardines." A description of the status of the school after the passage of

the bond issue is described in positive terms. The students will be in a "modern and safe environment" or "adequate school facilities." All of this may be attained for a "mere .22 cents a day."

We turn now to the questions presented.

Question #1 - Are elected officials and employees of the City of Norfolk legally permitted to present public information on the accelerated street improvement program, one-half of one percent city sales tax option, and related ballot information before service clubs and other citizens groups?

Response - Yes. However, the presentation must be fair and neutral. The information must be presented in a balanced, factual manner which does not advocate or oppose the ballot question or attempt to persuade the voters.

Question #2 - Are elected officials and employees of the City of Norfolk permitted to use the local cable television channel to present public information about the one-half of one percent city sales tax option, the accelerated street improvement program, and related ballot information?

Response - Yes. However, the presentation must be fair and neutral. The information must be presented in a balanced, factual manner which does not advocate or oppose the ballot question or attempt to persuade the voters. This opinion does not address the "Equal Time" or public forum issue since it is information and not advocacy which is contemplated.

Question #3 - Is the City of Norfolk legally permitted to expend municipal funds for preparing and distributing public information about the proposed one-half of one percent city sales tax option and the accelerated street program?

Response - Yes. However, the presentation must be fair and neutral. The information must be presented in a balanced, factual manner which does not advocate or oppose the ballot question or attempt to persuade the voters.

Question #4 - Would the City of Norfolk be legally permitted to expend municipal funds for the preparation and public distribution of the city sales tax fact sheet provided to the Commission in conjunction with its request for an Advisory Opinion?

Response - Yes with some qualification. The Commission has made no independent investigation into the matters represented on the fact sheet. Therefore, we do not know if the matters represented as fact are indeed fact. However, for the purposes of this opinion we will assume that the assertions in the fact sheet are made in good faith and that there is some reasonable and objective basis for making them. The fact sheet is fair, balanced, and neutral. The information is presented in a balanced manner. It is fair and neutral. It does not appear to be advocating or opposing the ballot question either expressly or implicitly. It may therefore be printed and distributed using public funds, public resources, and public personnel.

We have incorporated the Norfolk fact sheet into this opinion because we believe that it will be helpful for public officials and public employees to have a sample of the type of information which may be prepared and distributed at public expense. However, it is not the intent of the Commission to have public officials and public employees make a regular practice of submitting information packets regarding ballot questions to the Commission for prior approval. Adherence to this and previous Commission Advisory Opinions should provide public officials and public employees with the guidance they need under normal circumstances.

Nothing in this Advisory Opinion should be construed as supporting or opposing the ballot question.

SUMMARY

The City of Norfolk may engage in an information program regarding a question to appear on the ballot as long as fairness and neutrality are maintained. The information must be presented in a balanced, factual manner and not advocate or oppose the ballot question or attempt to persuade the voters.