ADVISORY OPINION NO. 186

 

Subject:        Campaign Financing / Use of Public Resources

 

Requested By:        Pamela A. Redfield, State Senator, District 12

 

Questions Presented:       May a member of the Legislature use public resources to produce a weekly newsletter sent out to constituents and newspapers by means of electronic mail and/or U.S. mail if the subject of any given newsletter edition during any given week of issue is a ballot question?

 

Conclusions:          Yes, but see Analysis.

 

Facts:                        In any given election year, proposed constitutional amendments and other questions may be placed on the ballot for consideration by Nebraska voters.  Constitutional amendments may be proposed by the Legislature, by constitutional convention, or by initiative petition.  Other ballot proposals may also be submitted for a vote of the people by initiative or referendum petition.  In either event, members of the Legislature are often queried by their constituents, the media, and other interested parties about such ballot questions.  Whether in response to an inquiry, or acting on their own initiative, members of the Legislature may feel inclined or obliged given their law-making position and legislative expertise to provide not only factual information, but also political opinion with respect to a ballot subject.  Thus, a question arises under Section 49-14,101.02 of the Nebraska Political Accountability and Disclosure Act as to what is permissible and what is proscribed regarding the use of public resources by a member of the Legislature when speaking about a ballot question issue.

 

Analysis:        The precursor statute to Section 49-14,101.02 as originally drafted was enacted by passage of LB 987 in 1976 and read as follows:

 

           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.

 

This statute section was amended in 1994 by passage of LB 1243 and added the language:  “except that the Executive Board of the Legislative Council may adopt policies that allow a member of the Legislature to install and use with private funds a telephone line, telephone, and telefax machine in his or her public office for private purposes.”  [See Sec. 49-14,101 (1998 Reissue).]

 

In 2001, the Legislature passed LB 242 which amended Sec. 49-14,101 by dividing out its sections and creating two additional stand alone statutes, Sections 49-14,101.01 and 49-14,101.02.  The current statute at question here, Sec. 49-14,101.02 (R.S.SUPP.,2001) states in Subsection (1) as follows:

 

           Except as otherwise provided in this section, a public official or public employee shall not use or authorize the use of personnel, property, resources, or funds under his or her official care and control for the purpose of campaigning for or against the nomination or election of a candidate or the qualification, passage, or defeat of a ballot question.

 

Subsection (4) of the statute section states:

 

          This section does not prohibit a public official from responding to specific inquiries by the press or the public as to his or her opinion regarding a ballot question or from providing information in response to a request for information.

 

Subsection (5) of the statute section further states:

 

          This section does not prohibit a member of the Legislature from making use of public resources in expressing his or her opinion regarding a candidate or a ballot question or from communicating that opinion to his or her constituents.  A member is not authorized by this section to utilize mass mailings or other mass communications at public expense for the purpose of qualifying, supporting, or opposing a ballot question or for the purpose of campaigning for or against the nomination or election of a candidate.

 

The original General File version of LB 242 as it pertained to Subsection (5) of the current law quoted above was initially drafted as follows:

 

          This section does not prohibit a member of the Legislature from expressing his or her opinion regarding a ballot question or from communicating that opinion to his or her constituents.

 

A floor amendment by the bill’s introducer was adopted by the Legislature, and amended the original bill section above as follows:

 

          This section does not prohibit a member of the Legislature from making incidental use of public resources in expressing his or her opinion regarding a candidate or a ballot question or from communicating that opinion to his or her individual constituents.  A member is not authorized by this section to utilize mass mailings or other mass communications at public expense for the purpose of qualifying, supporting, or opposing a ballot question or for the purpose of campaigning for or against the nomination or election of a candidate.

 

However, the above amendment was amended prior to its adoption to strike the word “incidental” with regard to the use of public resources, and to strike the word “individual” with regard to constituents.  This particular amendment to the amendment which together became the final draft of what is now the current statute, Sec. 49-14,101.02(5), is significant as it removes the qualifying and restrictive language governing both the scope of use of public resources, as well as the scope and manner of communication to any size constituent audience.

 

During floor debate on LB 242 and the pertinent amendments cited above, there was discourse on balancing a legislator’s First Amendment free speech rights in communicating his or her opinion and position on political issues with the basic public policy prohibition already in statute against using public resources to support or oppose a ballot issue.  The broad prohibition against the use of public resources other than in accordance with prescribed law had been the law for 25 years, but LB 242 attempted to both clarify and qualify the general prohibition on the use of public resources as applied to members of the Legislature when addressing ballot questions.

 

Over the years, this Commission has developed advisory opinions outlining permissible parameters within which a public official or public employee may operate when engaged in certain specified activities in connection with a ballot question.  [See Advisory Opinions 68, 82, 89, 95, 112, 113, 128 and 143.]  The general interpretation put forth by this Commission has been that information may be supplied by a public official or public employee on a ballot question as long as the information does not advocate a yes or no vote.  As long as the communication is informational, and fairness and neutrality are maintained, there is no violation of the prohibition against the use of public resources.  The information must be presented in a balanced, factual manner and neither advocate nor oppose the ballot question or attempt to persuade the voters.

 

However, with the passage of LB 242 in 2001, the statute has now been specifically amended to address what a member of the Legislature is permitted or prohibited from doing with regard to using public resources in expressing his or her opinion on a candidate or ballot question, communicating that opinion to his or her constitutents, and using mass communications at public expense in support of, or opposition to, a candidate or ballot question.  The amendatory language which found its way into statute was designed to strike a balance between the First Amendment free speech rights of state senators, and the recognition that unlimited use of public resources should not be allowed in all circumstances in the expression of such speech. 

 

During floor debate on this issue, it was declared that a press release as a form of communication to all constituents would not violate the newly-tailored rule of law.  The term “incidental” was stricken in relation to the frequency of use of public resources.  The term “individual” was stricken in relation to communication to a solitary or broader group of constituents.  However, the prohibition against using mass mailings and mass communications at public expense was retained.  Finally, it was stated that the intent of the amendment was to prevent the unlimited use of public resources to actively campaign for or against a ballot initiative, impliedly out of a state senator’s office.  The expressions made during floor debate by the authors of the bill and its adopted amendments, taken together with the technical language of the statute, are indicative of legislative intent and purpose as to the practical application and intended operation of the law.

 

A “weekly newsletter” implies a regular publication which on one or more occasions may address an issue such as a ballot question.  Any particular weekly newsletter may exclusively address a ballot question, or include a ballot question as one of a number of different subjects covered in the newsletter, or not discuss a ballot question at all.  If a press release sent out to the media and constituents whether touching in whole or in part on a ballot question is acceptable under the statute, then a weekly newsletter which addresses a ballot question sent to the media and constituents would seem to likewise serve the same mechanical function and be distributed via the same mechanical means, i.e., by way of postal or electronic mail.  Therefore, the issuance of either a press release or weekly newsletter appears to conform to the first part of Section 49-14,101.02(5) permitting the use of public resources in expressing a senator’s opinion regarding a candidate or ballot question, and communicating that opinion to his or her constituents.

 

However, the second part of Subsection (5) qualifies the permissive proviso by proscribing the utilization of mass mailings or other mass communications at public expense for the purpose of qualifying, supporting, or opposing a ballot question, or campaigning for or against the nomination or election of a candidate.  Thus, an exception to the exception of the general prohibition of using public resources is effectively created. 

 

A “proviso” within a statute serves the purpose of restricting the operative effect of statutory language to less than what its scope of operation would be otherwise.  Provisos are strictly construed, as only those subjects expressly exempted by the proviso should be freed from the operation of the statute.  Subsidiary clauses within a statute, like Subsection (5) here, which limit the generality of a rule are narrowly construed, as they are considered exceptions.  Therefore Subsection (5) must be narrowly construed in the context of the general prohibition in the statute within which it is contained.

 

As previously discussed, the legislative history implies that a press release is an acceptable means by which a member of the Legislature may use public resources in expressing and his or her opinion regarding a ballot question, and communicating that opinion to his or her constituents.  Likewise, a weekly newsletter accomplishes the same purpose in nearly similar fashion.  The terms “mass mailings” and “mass communications” are not defined in the statute or elsewhere in the Political Accountability and Disclosure Act.  The term “mass mailing” is, however, used elsewhere in the Act. Section 49-1474 of the campaign practices section of the Act reads:

 

           49-1474.  Political newsletter or mass mailing; not to be sent at public expense; violation; penalty.  No political newsletter or other campaign mass mailing shall be sent at public expense by or on behalf of any elected official after that person has announced his or her candidacy for any office.  An elected official violating the provisions of this section shall be guilty of a Class III misdemeanor.  

 

We take particular note of the following language found in Sec. 49-1474:  “No political newsletter or other campaign mass mailing . . .”  [Emphasis added.]  We thereby draw inference from the language highlighted above that a “political newsletter” is a form of “campaign mass mailing.” As a rule of statutory interpretation, there is a presumption that the same words used twice in the same act have the same meaning.  Under the plain meaning rule of statutory construction, words are given their common and customary meaning if the language is plain and unambiguous.  And in the absence of evidence that some other meaning is intended, there is a presumption favoring the common meaning.  Likewise, absent contrary legislative intent or other manifested meaning, technical terms or terms of art used in a statute are presumed to have their technical meaning.

 

Webster’s New World Dictionary, 3rd College Edition, defines “mailing” as “the action of sending anything by mail. “Mail” is defined as “letters, papers, packages, etc. received or sent by a person or company, or handled, transported and delivered by the post office.”  “Communications” is defined as “a system for sending and receiving messages as by telephone, telegraph, radio, etc.”   “Mass” is defined as “a large number, size, or quantity of things”.  Thus, mass mailings or mass communications would logically mean any items physically carried from the sender to recipient or messages transmitted by wires or airwaves in a large size, number or quantity.

 

We conclude that any newsletter constitutes a mass mailing or mass communication when distributed in bulk or magnitude by means of postal or electronic mail.   It is clear from the legislative history and the drafting of Subsection (5) to Section 49-14,101.02 that the Legislature intended to preclude its members from utilizing mass mailings or other mass communications at public expense for the specifically expressed purpose of qualifying, supporting, or opposing a ballot question or for the purpose of campaigning for or against the nomination or election of a candidate.  Provided, public resources may be used by a member of the Legislature in expressing his or her opinion regarding a candidate or a ballot question, and communicating that opinion to his or her constituents.  However, a member may not send out mass mailings or other mass communications for the purpose of advocating qualification or rejection of a ballot question petition, or for the purpose of supporting or opposing its passage by the voters.  

 

For example, a mass mailing or mass communication on a ballot question sent out at public expense which is limited to providing only neutral and balanced factual information is permissible, as per previous Commission opinions.  Mass mailings or mass communications sent out at public expense in which a member of the Legislature states something to the effect “I favor Ballot Question X,” or “I oppose Ballot Question Y,” and “My reasons for favoring X and opposing Y are A, B, C . . .” would also be permitted.   But if a member of the Legislature suggested voters should sign Petition X but not sign Petition Y, or vote yes on X and no on Y, or contribute money to the Ballot Question X Committee but not to the Ballot Question Y Committee, then the member would be in violation of Section 49-14,101.02(5).

 

It should be noted here that it is not the quantity or number of the mailings or messages that is controlling, but rather the content of the communication.  Whether 10 newsletters or 1,000 are mailed or emailed, compliance with the statute is dependent upon drawing the line between expressing a member’s opinion, and advocacy for or against the ballot question.  Finally, the foregoing opinion is limited to the applicability of the Nebraska Political Accountability and Disclosure Act to the question posed, and does not attempt to address or take into consideration any internal policies of the Legislative Council governing electronic and postal mailings.

 

Summary:       We therefore find that a member of the Legislature may use public resources to produce a weekly newsletter sent out to constituents and newspapers by either electronic, postal, or other mail means when the subject of the newsletter is a ballot question whether the newsletter is informational and fact-based only, or whether it is used to express and communicate the member’s opinion regarding the ballot question.  A member of the Legislature may not utilize a newsletter or other mass mailing or mass communication at public expense for the purpose of advocating qualification and support of, or opposition to, a ballot question.    

 

ADOPTED as an advisory opinion pursuant to Section 49-14,123(10) and Title 4, Chapter 1, Rules of Practice and Procedure.  As provided in Section 49-14,123(10), this advisory opinion shall be binding upon the Commission unless amended or revoked, concerning the person or public body who requested the opinion and acted in reliance thereon in good faith unless material facts were omitted or misstated by the person in the request for the opinion.

 

DATED this ______ day of September, 2002.

 

NEBRASKA ACCOUNTABILITY AND DISCLOSURE COMMISSION

 

 

 

 

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Dawn Rockey, Chairperson