Campaigning on the public dime vs. the right to campaign

Barry Jantz Barry Jantz 26 Comments

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Some key points on the question of whether elected officials are in violation of any laws when supporting campaign related issues…

Let’s start with a “given.”  In no circumstance can or should public resources be used for political campaign activity. That goes for both elected officials and their staff members while they are engaged on the public dime.  Let’s hope we can all agree on that one.

Those elected to office do not give up their fundamental, constitutional right to be involved in political campaign activities, as long as they are not using public resources to do so.  If you disagree with that assertion, read no further, because you may simply have a problem with the Bill of Rights.

This may not be as obvious, but it is the case: Elected officials are allowed to use their elected titles for political campaign activity.  Yes indeed.  Think about it a bit.  When incumbents run for re-election or for another office, are they barred from campaigning using their current titles?  Nope.  In fact, they are even allowed to use their elected titles on materials produced using public resources, i.e. in their ballot designations and statements listed in the sample and actual ballots.  Is anyone going to say that it is somehow unlawful for the four top contenders for mayor of San Diego to list as their ballot designations, respectively, Member of the City Council, Congressman, Assemblyman and District Attorney?

When a public agency crafts particular ballot language – with the intent of getting it passed, of course – public resources are clearly utilized do so, which is very much legal.  Government staffers don’t typically go through that process in a vacuum, by the way.  Elected officials are very much involved in the direction taken, and sometimes even in development of the specific language itself.  In a word, legal.  Once the measure is placed on the ballot, however, the agency is limited to providing only information about the measure, not in campaigning to achieve voter approval.

Yet, once on the ballot, elected officials also have the right to list their names and titles in conjunction with measures they may support or oppose.  This includes their names and titles being used as signers on arguments listed as part of the ballot information (again produced with tax monies, mind you), even if their individual position may be at odds with the official position of their public agency and/or their colleagues.

It’s clear Governor Jerry Brown can’t use the Capitol building and his government staff to campaign for anyone running for state legislature.  But, when he endorses someone, it’s as Governor Jerry Brown, not just as Jerry Brown.  It’s his absolute right to use the title he earned to support others vying for office, as well as ballot measures.  When Barack Obama endorses candidates running for Congress, it’s not typically using the title of “Retired Senator,” by the way.

Former Governor Gray Davis was once “outed” for making a campaign money request of a group during a meeting in his Capitol office.  Indeed, it is an issue for every elected official and staffer to differentiate between their government and campaign related activities, while not mixing the two.  I won’t begin to advise how to adequately police that ant hill, other than by means of a personal honor system.  Those not imposing such a system on themselves may simply inevitably end up in a world of hurt, or maybe even scandal.

Yet, it is just as important to understand that most public agencies view the time of elected officials as their own to decide, partly because they are representing the public on a full time basis (even local “part-time” officials), whether at city hall or in line at the grocery store.  Other than the scheduled public agency meetings he or she is required to attend, if an elected official chooses in one day to go back and forth between four campaign activities (not on government property, of course) and four public meetings, that is largely an individual decision.

If City Councilmember Jones spends countless evenings and weekends at community events representing the public, that’s a choice.  If Trustee Smith, alternatively, does no public business other than attend the monthly school board meeting, and doesn’t even read the provided material before voting, it may impact her at re-election time and incur the wrath of some colleagues, but such actions would also be a choice.  Unless elected officials are forced to punch a time clock, it is legal for them to be involved in campaign activities during “regular hours,” as they often have no such thing.

Much of the debate on this matter over the last couple of weeks confuses two very different matters: The illegality of using government resources for campaign activity, and the absolute legal right of elected officials to be involved in political campaigns, while using their elected titles.  It would be helpful if those making bold pronouncements would understand the difference.

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Comments 26

  1. You don’t say so explicitly, but clearly you have in mind the PERB complaint about Mayor Sanders’ involvement in the CPR initiative. What you’ve spelled out above is valid, but it omits the fact that there are laws which impinge on the rights of elected officials in particular limited cases. That this should be the case in general should not surprise. This doesn’t mean that the Mayor may not engage in ANY political activity. That’s a straw-man argument.

    In this case, the Mayor is required by law to meet and confer with employees regarding their contracts. The right to be involved in political campaigns conflicts with that requirement, yes, but does not render it moot. PERB agreed that Jerry Sanders is the mayor, and is bound by laws limiting the mayor’s actions, whether or not he wears a tie.

  2. Great question, Dave. Whether any legal limitations, I wouldn’t begin to suggest I know for sure. Often, individuals endorse as just that, while the campaign chooses to utilize the public titles, for obvious reasons. There is a lack of protocol for campaigns in this regard, while sometimes creating problems for both the endorsers and the campaigns. The best campaign approach, in my personal view, is an asterisk with some wording such as “titles for identification purposes only and do not imply an endorsement by the public agency.” As a public agency official, I take it a step further and let them know they are not to use my present title, preferring they use “Former La Mesa City Councilman.” Even that has at times been ignored, typically not purposely, but usually in the “telephone game” transition from candidate to staff to consultant to graphics/website designer.

    Jeffrey, thanks for your comment. It may seem a straw man argument, but not so given some comments in the last couple of weeks, especially those suggesting use of titles is definitive proof that public resources are being used. Clearly to me, not everyone opining on these issues is aware of the nuances you have stated.

  3. It’s a useful distinction to make. It raises several questions on the margins. One, if your government staff do work on a ballot measure at your direction, are they expending public resources on the measure, exercising their 1st amendment right, or both? Two, if you produce materials in your capacity as elected official, while acting in that capacity, is the time associated with that production an in-kind campaign donation? Is there some minimum amount of time we expect staff to be doing city vs campaign business? It is a huge advantage to have months and staff resources to spend, and I am not passing judgment on whether that is an unfair advantage or the proper fruits of very hard work. I would love to hear your thoughts.

  4. Unlike everyone else who has commented here, Barry Jantz knows what it is to be an Elected official, for many successful years on the La Mesa city council.

    Smart elected officials and their staffs routinely build a wall between their official capacities and their political views. That means using a cell phone for any personal calls, taking vacation time to work on campaigns,and never using stationary, copy machines or computers for political purposes. Never. Repeat, this is routine for Smart and ethical elected officials and their staffs. And It is not hard to do.

    It only requires self-discipline and intelligence. Mr. Jantz has both and is an example of people who build that wall between official and politcal activities.

    What we are really hearing here is an attempt to censor and silence the views of people elected by their constituents to do their jobs. The modern American left loves to make speech they disagree with, into a criminal issue.

  5. Thank you Barry for this post. We have dealt with City’s and campaign activity for some time now, most notably dealing with the cities and their sales tax increase campaigns in 2008. The law regarding “expressly advocating” is IMHO outdated and needs reform. The mailers that were sent out on behalf of the cities meant as “education” were scare pieces to get voters to support their measures. SDCTA has a set of guidelines regarding use of public funds for advocacy and will monitor communications during the upcoming election cycle.

  6. Omar, I agree, and the questions always raise more!

    “if your government staff do work on a ballot measure at your direction, are they expending public resources on the measure, exercising their 1st amendment right, or both?”

    –I will assume you mean a ballot measure that has qualified for the ballot (not one being crafted), in which case we would be talking about staff being given direction to work on a campaign. The staff can never legally work on a campaign on city time and/or with public resources. If the staff does so on their own time (including time off), that would be their right. It gets into another question about whether there is a rightful expectation by the elected official that the staffer provides volunteer work outside of work hours; yet I believe those are matters outside of campaign law, however, no different than the appropriateness of a private employer insisting that an eight-hour a day employee do an evening shopping excursion for them.

    “if you produce materials in your capacity as elected official, while acting in that capacity, is the time associated with that production an in-kind campaign donation?”

    –The provision of services or materials by anyone may fall into the category of being in-kind, regardless of the provider, even if an elected official. But, not all “activities” are considered in-kind, as opposed to “materials.” Volunteer hours, typically not. Campaign sign materials or literature, yes, in-kind. The time to put up the signage or distribute the literature, no, not usually. But, professional services that would typically be charged…yes, usually. Consult a good campaign law attorney or qualified treasurer on this one!!!

    “Is there some minimum amount of time we expect staff to be doing city vs campaign business?”

    –I would say yes, dependent on work hours. The public’s work is the public’s work, first and foremost. It is often typical for staffers to take leave for a certain amount of time to campaign. Clear cut, that one. In other cases, a staffer may work part time for the legislator, part time for the campaign. (I’m not addressing here any specific restrictions individual agencies may have in place against such things, or even if such restrictions would be legal.) But, in my humble opinion, a salaried person should be putting in the minimum amount of time for the public as may be dictated by the job description and agreements, as well as to get their work done, regardless of what they may do on their own time.

  7. Sac Sam, thanks very much, that’s very nice!

    Chris, thanks, maybe a more specific post sometime on “advocacy” vs. “information,” including prior to a measure being placed on the ballot just how far agencies can go in determining for themselves those definitions. You could write it.

    I know I’m gonna get some hate emails from some consultants tonight.

  8. Barry, speaking of public resources spent on political issues. Aren’t you paid $200,000 or something to run a healthcare district? How do you have time to do this today?

  9. Barry,

    Of course you are correct that elected officials have the same Constitutional rights as anyone else to express their political opinions and even use their official title when doing so. However, just like the right of free speech is not absolute (yelling “fire” in a crowded theater is still illegal), neither is the right of a politician to craft and/or support all initiatives.

    The points I made in the previous post solely concern the CPR Initiative and other initiatives where an elected official tries to avoid his state or federally mandated legal responsibilities by passing a local initiative.

    As was pointed out by Kelly Davis in the other post, a court will eventually decide who is right and as was also pointed out, the court has not yet made that determination.

  10. Chris Cate,

    Why hasn’t SDCTA voiced any complaints about the advocacy positions being taken by public officials on CPR? Are you only concerned when the positions taken are contrary to your own?

  11. Tax Payer: How would I have time to do “this” today, as say opposed to yesterday? What is “this”? Posting something on my own time, that I wrote on my own time, then answering some questions during some scheduled time off? You may imply whatever you’d like, but I didn’t just determine how to appropriately differentiate between my personal and paid time. As I noted above in a comment, “in my humble opinion, a salaried person should be putting in the minimum amount of time for the public as may be dictated by the job description and agreements, as well as to get their work done, regardless of what they may do on their own time.” By the way, some of the advice I give above is the same I give to the elected officials I am proud to call my bosses.

  12. Alger,

    See the many previous posts and comments regarding elected officials and their rights as individuals to advocate, basically what Barry just posted. We have raised many concerns with the advocacy on the part of cities, as public agencies, for or against ballot measures. For example, a CITY, sponsoring mailings or robo-calls advocating a position on a ballot measure.

  13. About 10 or so years ago I received a phone call from a member of the San Diego City Council seeking a campaign donation for his re-election campaign. It was during his lunch hour and he was making the phone call from a private phone that he had installed in his city council office.

    I immediately questioned if it was okay for him to be making fundraising phone calls from his city office, albeit from a private phone. He claimed all was on the up and up. Nevertheless I was very uncomfortable and told him to call me in the evening when he was out of his office.

    I really don’t know if this was legal or not, but unless he was paying the city rent, utilities, wear & tear on furniture, and other expenses then it seems like very thin ice to me as far as using public resources for a campaign activity.

    Granted, in the grand scheme of things this was probably a minor issue, but it definitely was pushing the envelope (it was also shortly after Valerie Stallings had been busted by the FBI and everyone should have assumed they were still watching). Fortunately, in today’s modern era of mobile phones, council members can go sit outside and avoid this type of possible conflict.

  14. Chris Cate,

    Are you seriously suggesting that neither the Mayor nor the supportive Council Members have used any City resources to advocate for CPR?

  15. It’s just after 7 am and I’m on my way to work, if that’s ok. 😉

    D7: I couldn’t tell you if anything has changed, or if the City of San Diego is different, but at least in the State Assembly it used to be allowable for legislators to maintain a private line at their expense in district offices. It always seemed odd to me, but it was allowed.

    I know of at least one elected now who simply takes his cell phone and list, and goes for a walk.

  16. @Alger:
    My reading of what Chris is saying is about the seen as opposed to the unseen. Both are not right, but if any council members on any issue ever use public resources for political purposes, there would have to be proof to address it. It just isn’t because you may believe it is happening. When cities use public resources for advocacy in the form of mailers, robocalls, etc, that is something the Taxpayers Association can get their hands around, as can others. Trying to prove that council members or employees are spending time on non-govt business is very difficult, without any proof, therefore it’s just conjecture and allegations. How do you expect Chris to answer what he thinks instead of what he knows, simply because you think it?

  17. Gosh, Alger, I don’t recall you complaining about city council politicians “using city resources” while campaigning FOR Prop. D. Haven’t seen your critical comments directed at any of your favored politicians campaigning with government resources for the many other tax state and local tax increase measures — school bonds, parcel taxes, etc. Perhaps you might want to wander down to the SDUSD to see how bad it can get.

    Could it be that your concern is — to put it delicately — “selective”? Could it be you want such stringent rules applied only when the campaigning is for a viewpoint or issue that you oppose?? Could it be???

    Given the fact that most politicians favor higher taxes and bigger government — it’s logical to assume that your heroes commit such transgressions far more frequently that “my side” — especially since your side has a pronounced disdain for taxpayers.

    For instance, the use of taxpayer money to lay the groundwork for tax increases (such as the government hiring consultants to craft the measure most likely to pass). Or the city of La Mesa spending over $100,000 to send out “informational” brochures touting their sales tax increase.

    You’re quibbling over minor and universally transgressed gray areas. I’m talking about major, blatant thievery. And it’s YOUR side that overwhelmingly is most guilty of such thefts.

  18. It seems to me that there is some conflating of (unless my skimming of the comments missed it) two issues

    1) Use of Public Resources on campaigns. As Chris C points out, SDCTA has been a vigilant watchdog on trying to push back on the most egregious use of public $$ for political purposes. Nothing that has been discussed about CPRA rises anywhere near the level of both the actions which have been found verboten and even those which the FPPC has deemed legal (“educational campaigns” or “research polling”

    2) But is ISNT clear that the same standard applied to matters before the PERB. That would seem to be the key issue – and it doesn’t matter squat about the council since they are not the negotater (or at least as I understand the current state of the CA’s opinions on M&C). Rather, it is if the allegations of the MEA complaint are true and the Mayor’s Press People on City resources and time advocated and advanced the gathering of signatures did that trip up the obligation of an employer to M&C when changing a public employees working conditions? If you read the MEA complaint THAT is the key issue.

  19. Thank you Spin Zone and Richard for your comments. You expressed my points well. Alger, again our focus has been on government agencies expressly advocating positions through the authorization of public resources. I believe it is somewhat difficult to try and tie the time of an elected official to a ballot measure. The examples are numerous of electeds supporting ballot measures, whether it be CPR, Prop D, Gov. Brown, the list goes on and on. But I will say if the City or another elected official had printed advocacy materials on city letterhead or paid for a robocall with taxpayer dollars, we would be in opposition. I have not seen evidence of that occurring, whether it be for CPR or Prop D. If you have, I believe we’d all be interested in seeing your evidence.

  20. Richard,

    As usual you have selectively read only part of what I have written on this topic. If you took the time to read the original post that started this discussion, you would see that I already agreed that it was wrong to use public resources to advocate for Prop D or any other measure. You would also have realized that my main contention with the Mayor’s action was solely because he is the chief management negotiator and it at least appears that he was trying to make an end-run around legally required labor negotiations.

  21. Granted, Alger, you did in passing give lip service to Prop D missteps by advocates, but I doubt you complained when it was happening (and mattered). That’s just your windowdressing for now trying to apply vague standards to your CURRENT pension Armageddon problem (as you see it).

    You can’t expect to be taken seriously when you apply such an obvious double standard. Hopefully the courts agree (always a crapshoot).

  22. Richard,

    The court will not be looking at the issue of using public resources for political purposes. The court will be looking at whether or not having the lead management negotiator craft and then campaign for an initiative that changes the collectively bargained agreement is an illegal end run around state and federal labor laws.

  23. If Presidents, candidates, and Senators (or VP’s) had to pay for speaking time rather than get paid, would they be speaking at all?

    Isn’t that the function of the State of the Union, to set aside time to hear what Presidents have to say?

    Why are Senators and Reps campaigning on the public dime rather than paying to be heard like lobbyists?

  24. We literally have no clue what you are referring to, Pat, unless it’s something different than the above article is addressing.

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