ADVISORY OPINION #189

Subject:  Campaign Financing / Use of Public Resources

Requested By:  Jim Jensen, State Senator, District 20

Questions Presented:  1) May a State Senator or group of State Senators use public resources, including staff, to write an editorial expressing an opinion about a ballot question? 2) May a State Senator use his legislative email account to distribute the editorial to the other forty-eight State Senators?  3) May a State Senator use his legislative email account to distribute the final version of the editorial to some newspapers the state?

Conclusion:  Yes. See Analysis.

Facts:  A State Senator, along with one or more other State Senators, plans to write an editorial advocating a position on a ballot question.  The ballot question will be submitted to the voters at the November 2004 General Election.  The editorial will be submitted to the other forty-eight State Senators via legislative email.  State Senators will be invited to add their names to the editorial.  The State Senator then plans to send the editorial via email to all daily and weekly newspapers in Nebraska.  He wishes to know if this proposed course of action is permitted pursuant to §49-14,101.02(5).

Analysis:  In 2001, the Legislature passed LB 242 which amended §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 issue here, §49-14,101.02 (R.S.SUPP.,2002) 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.

A review of the legislative history of this provision and its predecessors may be helpful.

The predecessor 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 section was codifed as §49-14,101(4). It remained intact until the passage of LB 242 in 2001.  In Advisory Opinions and rulings in contested cases, the Commission interpreted this section as prohibiting a public official or public employee from using personnel, resources, property or funds under his or her official care and control for the purpose of supporting or opposing the nomination or election of a candidate or the qualification, passage or defeat of a ballot question.

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 considered by the Legislature which 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. The new amendment struck the word "incidental" with regard to the use of public resources, and struck the word "individual" with regard to constituents. This amendment to the amendment resulted in the final draft of what is now the current §49-14,101.02(5).  It is significant in that 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, the 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 the Commission has been that a public official may always respond to inquiries, and 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 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. Senator Chris Beutler, the author of the pertinent amendment which modified the language of the statute section to its presently codified form, stated as follows in argument for the adoption of his amendment:

Senator Kristensen, members of the Legislature, Senator Wickersham has succinctly described the point under discussion and has also described the general thrust of my amendment. What this section says now is that 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. And then the Wickersham amendment further narrows that to allowing us the incidental use, the incidental use of public resources; and then also narrows our communication to communication with individual senator…individual constituents as opposed to the mass of constituents. And it is those two narrowings of our prerogatives that I wish to change in the Wickersham amendment. So technically what the amendment does in the Wickersham amendment is to strike the word "incidental" and to strike the word "individual". The effect, the effect and thrust of the amendment, the effect of doing that is to say that we can use our resources to talk about ballot questions except we leave in the Wickersham amendment that we cannot do mass mailings. Okay? But anything else you can clearly do, so you don’t have to sit there worrying about whatever it is you’re doing, your press release or your press conference or whatever it is. You’re not going to have to worry about whether you're violating the law. And in my philosophy, you shouldn’t have to worry about whether you’re violating the law because you should be able to speak out on these things. Likewise, the word…dropping the word "individual" means that you don’t have to worry about whether you’re violating the law because you put out a press release and that’s a communication to all constituents as opposed to a communication to an individual constituent. I don’t think we should have to worry about that distinction. [Floor Debate on AM1599 to LB 242, Legislative Journal, p.p. 5190-91, April 20, 2001.]

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. 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.

Having reviewed the history of §49-14,101.01(5) we consider the questions posed.

As stated, the member of the Legislature wants to use public resources to prepare an editorial.  For the purposes of this opinion we use the term “editorial” as “expressive of an opinion”. See Webster’s Third New International Dictionary (1981).  Expressing an opinion is precisely what subsection (5) of §49-14,101.02 was intended to permit.  Accordingly, a member of the Legislature may use public resources to prepare an editorial expressing an opinion as to a ballot question.

The member of the Legislature wants to email the editorial via the state email system to the other forty-eight State Senators.  Subsection (5) of §49-14,101.01 permits public resources to be used to communicate an opinion regarding a ballot question as long as the communication is not a “mass mailing” or “mass communication”.  While the concept of what is a mass mailing or mass communication is not well developed in the statute or its Legislative history, we don’t believe that an email communication to forty-eight individuals reaches the level of a mass communication.

The member of the Legislature wants to email a copy of the final version of the editorial to newspapers in Nebraska.  He estimates that approximately sixty to ninety newspapers in the state would be recipients of the emailed editorial. Again, we don’t believe that an email communication to ninety entities reaches the level of a mass communication.

In Advisory Opinion #186 the Commission took the position that a member of the Legislature may use public resources to produce a press release or weekly newsletter that included an opinion on a ballot question.  The Advisory Opinion further stated that a State Senator may distribute the same to constituents and newspapers by electronic, postal, or other mail means when the subject of the communication is a ballot question. The matters at issue here are not substantially different.  In Advisory Opinion #186 the State Senator sought to communicate an opinion through a press release or a weekly newsletter.  In the matter before us, the State Senator seeks to communicate an opinion through an editorial.  In the matter at issue in Advisory Opinion #186 the State Senator sought to distribute her press release to newspapers and constituents via U.S. Mail or email.  In the matter before us, the State Senator seeks to distribute his editorial to other State Senators and Nebraska newspapers via email. 

In our opinion, the proposed actions of the State Senator are consistent with the provisions of 49-14,101.02(5), consistent with the legislative intent expressed during the floor debate on LB 242, and consistent with our position in Advisory Opinion #186.

This opinion is limited to the applicability of the Nebraska Political Accountability and Disclosure Act to the questions posed, and does not attempt to address or take into consideration any internal policies of the Legislative Council governing electronic and postal mailings.

Summary: A member of the Legislature may use public resources and personnel to produce an editorial expressing his or her opinion as to a ballot question.  The editorial may be emailed to all other members of the Legislature using the legislative email system.  The editorial may be emailed via the legislative email system to sixty to ninety newspapers in Nebraska.

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 August 2004

NEBRASKA ACCOUNTABILITY AND DISCLOSURE COMMISSION

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John Bergmeyer, Chairman