HomeMy WebLinkAbout2012 Memo "Restricted & Allowable Political Activities"Mayor
Ron Morrison
Council Members
Alejandra Sotelo-Solis
Louis Natividad
Mona Rios
Rosalie Zarate
TO:
FROM:
DATE:
SUBJECT:
ORAT"
Office of the City Attorney
MEMORANDUM
Mayor and City Council
Members of City Boards and Commissions
All City Employees
Claudia G. Silva, City Attorney
August 14, 2012
Restricted and Allowable Political Activities
City Attorney
Claudia Gacitua Silva
Deputy City Attorney
Jennifer Knight
As the November election approaches, the City Attorney's Office would like to take this opportunity
to remind City officers, employees, and candidates of the laws that restrict their use of City resources
and positions for political activities. This memorandum provides a summary of the restrictions and
allowable activities during the election.
The information provided below is described as set forth in the Government Code, the Penal Code,
the National City Municipal Code, and relevant Case Law.
I. Government Restrictions On Political Activities.
Statutory restrictions on political activities of public officers, employees, and candidates are found in
the Government Code Sections 3201-3209. Please note the following sections:
A. Use of office, authority, or influence to gain unfair advantage is prohibited.
Section 3204 regulates the conduct of public officers and candidates for office, prohibiting
the use of office, authority or influence to gain advantage for any person, or to obstruct any
person from gaining advantage. Specifically,
No one who holds, or who is seeking election or appointment to, any office or
employment in a state or local agency shall, directly or indirectly, use,
promise, threaten or attempt to use, any office, authority, or influence,
whether then possessed or merely anticipated, to confer upon or secure for
any individual person, or to aid or obstruct any individual person in securing,
or to prevent any individual person from securing, any position, nomination,
confirmation, promotion, or change in compensation or position, within the
state or local agency, upon consideration or condition that the vote or
political influence or action of such person or another shall be given or used
in behalf of or withheld from any candidate, officer, or party, or upon any
other corrupt condition or consideration. This prohibition shall apply to
urging or discouraging the individual employee's action.
1243 National City Boulevard; National City, California 91950-4301
Tel.: (619) 336.4220 Fax: (619) 336.4327
B. Limits on requests for political contributions.
Section 3205 prohibits a public officer or employee from soliciting political contributions
from other officers or employees of the same local agency, with certain exceptions.
1. Solicitation.
An officer, employee, or candidate for elected office of a local agency shall not
directly or indirectly solicit for political contributions from an officer or an employee
of that agency. For example, a political candidate that hosts an election fundraiser for
city employees or a particular city department would be in violation of this section.
(a)
An officer or employee of a local agency shall not, directly or indirectly,
solicit a political contribution from an officer or employee of that agency or
from a person on an employment list of that officer at agency, with knowledge
that the person from whom the contribution is solicited is an officer or
employee of that agency.
(b) A candidate for elective office of a local agency shall not, directly or
indirectly, solicit a political contribution from an officer of that agency, or
from a person on an employment list of that agency, with knowledge that the
person from whom the contribution is solicited is an officer or employee of
that agency.
2. Allowable request for contributions.
It is allowable to request political contributions from officers or employees of that
agency if the solicitation is made as a part of a global solicitation. For example, a
political candidate would not be in violation of this section if a city employee
received campaign material at their home if the same materials were delivered to all
National City homes.
(a) This section shall not prohibit an officer or employee of a local agency, or a
candidate for elective office in a local agency, from requesting political
contributions from officers or employees of that agency if the solicitation is
part of a solicitation made to a significant segment of the public, which may
include officers or employees of that local agency.
3. Violation of this section can be punishable by a misdemeanor.
(a) Violation of this section is punishable as a misdemeanor. The district
attorney shall have all authority to prosecute under this section.
C. Promises of compensation are prohibited.
Section 3205.5 provides that a person seeking election or appointment shall not make
promises or arrange for an employee's compensation in exchange for personal gain.
Violation of this section is punishable by imprisonment in county jail for up to one year, a
fine of up to $5,000 or both such fine and imprisonment.
2 Restrictions and Allowable Political Activities
August 14, 2012
No one who holds, or who is seeking election or appointment to, any office
shall, directly or indirectly, offer or arrange for any increase in compensation
or salary for an employee of a local agency in exchange for, or a promise of
a contribution or loan to any committee controlled directly or indirectly by
the person who holds, or is seeking appointment or election to, an office.
D. Political activities while in uniform are prohibited.
Section 3206 provides the following:
No officer or employee of a local agency shall participate in political
activities of any kind while in uniform.
E. Political activities during the workday are prohibited.
Section 3207 provides that a local agency may prohibit officers and employees from
engaging in political activity during working hours, and to prohibit political activities on the
premises of the local agency.
1. Section 802(0 of the Civil Service Rules prohibits unauthorized possession or use of
City equipment, facilities, or property, which would include such possession or use
for political activities. Generally, City employees may engage in political activities
during their off -duty hours, as long as work performance is not affected.
2. Officers or employees are permitted to solicit and receive contributions related to
ballot measures affecting working conditions if not prohibited by the City.
Section 3209 provides that a local agency may prohibit such activities during working hours,
and may prohibit entry into government offices for such activities.
Nothing in this chapter prevents an officer or employee of a state or local
agency from soliciting or receiving political funds or contributions to
promote the passage or defeat of a ballot measure which would affect the rate
of pay, hours of work, retirement, civil service, or other working conditions of
officers or employees of such state or local agency, except that a state or
local agency may prohibit or limit such activities by its employees during
their working hours and may prohibit or limit entry into governmental offices
for such purposes during working hours.
Please see National City Municipal Code Section 3.32.030 for further limitations and
restrictions placed by the City.
F. Public moneys cannot be spent on elections.
Section 85300, The Political Reform Act, provides that "no public officer shall expend and
no candidate shall accept public moneys for the purpose of seeking elective office." Violation
of Section 85300 is punishable as a misdemeanor.
3 Restrictions and Allowable Political Activities
August 14, 2012
G. Use of public resources cannot be used for campaign activities.
Section 8314 provides the following;
... it is unlawful for any elected state or local officer, including any state or
local appointee, employee, or consultant, to use or permit others to use public
resources for a campaign activity, or personal or other purposes which are
not authorized by law.
II. Criminal Sanctions for Certain Political Activities
A. Seeking reimbursement with City funds for political activities is a crime.
Penal Code Section 72.5 (b) provides the following:
Every person who, knowing a claim seeks public funds for reimbursement of
costs incurred to gain admittance to a political function expressly organized
to support or oppose any ballot measure, presents such a claim for allowance
or for payment to any state board or officer, or to any county, city or district
board or officer authorized to allow or pay such claims is punishable either
by imprisonment in the county jail for a period of not more than one year, by
a fine of not exceeding one thousand dollars ($1,000), or by both such
imprisonment and fine, or by imprisonment in the state prison, by afne of not
exceeding ten thousand dollars ($10,000), or by both such imprisonment and
fine.
B. Misappropriation of public funds is prohibited.
Penal Code Sections 424 and 504 provide that it is a crime to misappropriate public funds
and property, respectively. Depending on the amount of funds or value of property which
has been misappropriated, violation of these sections may be punishable as a misdemeanor or
as a felony.
III. National City Municipal Code
Contribution Solicitation.
Section 3.32.030 provides the following:
No officer, agent, clerk or employee under the government of the city and no
candidate for any city office shall directly or indirectly solicit or receive or be
in any manner concerned in soliciting or receiving any assessment,
subscription, contribution or political service whether voluntary or
involuntary for any political purpose whatsoever from anyone on an
employment list or holding any position under the provisions of this title. No
officer or employee in the competitive service shall directly or indirectly solicit
or receive or be in any manner concerned in soliciting or receiving any
assessment, subscription or contribution whether voluntary or involuntary for
any purpose affecting his working conditions from any person other than an
officer or employee in the competitive service. (Emphasis added.)
4 Restrictions and Allowable Political Activities
August 14, 2012
IV. Case Law
A body of case Law has developed in the area of the use of public funds, facilities and employees for
political purposes. From this case law, we can better understand permitted and restricted activities.
It is now clear that a city and its officials may engage in "lobbying" activities. "Lobbying" activities
mean contacting or meeting with members of another legislative body or administrative agency, to
urge passage or defeat of particular legislation or administrative regulation that is being considered
by that other body or agency.
A. Promotional campaign activities are prohibited while on duty and public funds cannot
be expended.
A city and its officials may not, during on -duty time, engage in, nor expend public funds on,
"promotional" campaign activities. "Promotional" activities mean directly urging the voters
to vote for or against a particular candidate or ballot measure. (Stanson v. Mott (1978) 17
Cal. 3d 206, 130 Ca1.Rptr. 697). Similarly, it has been held that use of public funds to urge
members of the public to contact their legislators concerning a matter within the legislators'
jurisdiction is impermissible. (Willer v. Miller (1978) 87 Ca1.App. 3d 762, 151 Ca1.Rptr.
197).
B. Promotional Activities.
Challenges to use of public funds for promotional campaign activities have generally been on
the basis that they are not authorized by law, and that such activities are violate of the First
Amendment. As stated in Stanson v. Mott:
A fundamental precept of this nation's democratic electoral process is that
the government may not "take sides" in election contests or bestow an unfair
advantage on one of several competing factions. A principal danger feared
by our country's founders lay in the possibility that the holders of
governmental authority would use official power improperly to perpetuate
themselves, or their allies, in office (citation omitted); the selective use of
public funds in election campaigns, of course, raises the specter of just such
an improper distortion of the democratic electoral process.
This concept is codified in Subsection (a) of Government Code Section 54964, which
provides that an officer, employee, or consultant of a Iocal agency may not expend or
authorize the expenditure of any of the funds of the local agency to support or oppose the
approval or rejection of a ballot measure, or the election or defeat of a candidate, by the
voters. Such activities are considered "promotional" in nature.
C. Informational Activities.
In contrast to prohibited campaign promotional activities, use of public funds for objective
informational activities is permitted. Subsection (c) of Government Code Section 54964
provides:
This section does not prohibit the expenditure of local agency funds to
provide information to the public about the possible effects of a ballot
measure on the activities, operations, or policies of the local agency, if both
of the following conditions are met:
5 Restrictions and Allowable Political Activities
August 14, 2012
(I) The informational activities are not otherwise prohibited by the
Constitution or laws of this state,
(2) The information provided constitutes an accurate, fair, and
impartial presentation of relevant facts to aid the voters in reaching
an informed judgment regarding the ballot measure.
The line between promotional activities and informational activities is not always clear. In
Stanson v. Mott, cited above, the court stated that "the determination of the propriety or
impropriety of the expenditure depends upon a careful consideration of such factors as the
style, tenor, and timing of the publication; no hard and fast rule governs every case".
D. Examples of promotional activities:
1. Any act of advocacy by the public entity or a public official acting in his or her
official capacity. (League of Women Voters v. Countywide Criminal Justice
Coordinating Comm. (1988) 203 Cai.App. 3d 529, 250 Ca1.Rptr. 161.)
2. Use of public funds to purchase items such as bumper stickers, posters, or television
and radio spots. (Stanson v. Mott, above).
3. Dissemination of city publications, which are not merely informational but
promotional (Stanson v. Mott, above).
4. Dissemination at public expense of campaign literature prepared by private
proponents or opponents of a measure. (Stanson v. Mott, above).
5. Use of public employees during working hours to engage in promotional activities.
(Stanson v. Mott, above).
6. Use of public employees by a public official to solicit contributions, plan campaign
strategy, coordinate volunteers, or prepare a campaign budget. (FPPC v. Suitt (1979)
90 Ca1.App. 3d 125, 153 Ca1.Rptr. 311).
7. Use of public employees and funds to distribute postcards to citizens. (California
Common Cause v. Duffy (1987) 200 Ca1.App. 3d 730, 246 Ca1.Rptr. 285).
E. Examples of informational activities:
1. Written report by city manager, presentation of staff reports at public meetings,
distribution of one -page leaflets, article in city newsletter and posting on city's
website, all describing reductions in facilities, services, and programs which would
result from passage of measure repealing utility user's tax. (Vargas v. City of Salinas
(2009) 46 Cal. 4th 1, 92 Ca1.Rptr. 3d 286.)
2. Stating a position on a measure at a public meeting. (Choice -in -Education League v.
Los Angeles Unified School District (1993) 17 Ca1.App. 4th 415, 21 Cal.Rptr. 2d
303).
6 Restrictions and Allowable Political Activities
August 14, 2012
3. Elected and appointed officials joining as individuals in a citizen's grow advocating
a position on a measure. (League of Women Voters, above), p
4. Preparation of and sending a neutral, informational letter to other public officials
about a measure. (League of Women Voters, above).
5. Preparation of and distribution of an objective statement of facts about a measure i
response to a citizen's request. (Stanson v. Mott, above). n
6. Authorization of a city employee to present the city's view on a measure at a meet'n
of a public or private organization, when requested by such organization. (Stansonv..
Mott, above).
V. CONCLUSION
Please be advised that engaging in impermissible activities can lead to serious consequences.
City officers, employees, or candidates engage in inappropriate spending of public funds forany
activities the penalties can include civil suits for declaratory and injunctive relief,q es. If tion fth
political
campaign reporting requirements of the Political Reform Act, for violation of civil rightsprotectedr 1pethe
by the First Amendment, and for reimbursement for the expenditure of public funds. Further, h
impermissible expenditures may be the basis for criminal prosecutions for misuse of public f such
for embezzlement by a public officer, p funds or
s on the above issues should be directed to the City Attorney's Office.
7
Restrictions and Allowable Political Activities
August 14, 2012