4400P Procedure - Guidelines for School Districts in Election Campaigns

 

PUBLIC DISCLOSURE COMMISSION

711 Capitol Way Rm. 206, PO Box 40908 • Olympia, Washington 98504-0908 • (360) 753-1111 • FAX (360) 753-1112

Toll Free 1-877-601-2828 • E-mail: pdc@pdc.wa.gov • Website:  www.pdc.wa.gov

 

 

 

This document is an educational tool that is an expression of the Commission's view of the meaning of RCW 42.17.130 and relevant administrative rules and case law involving school districts and election campaign activity.  It is intended to provide guidance regarding the Commission's approach and interpretation of how the statutory prohibition on the use of public school facilities for campaigns impacts activities that may be contemplated by district personnel and other persons who may seek to utilize those public facilities.  These Guidelines are meant to aid and assist in compliance with the law.  Readers are strongly encouraged to review the statute and rules referenced in these Guidelines.

 

For ease of reference, the majority of this interpretation is in chart form.  In part, the chart identifies categories of persons, some possible activities, and some general considerations.  These illustrative examples in the columns of the chart are not intended to be exhaustive.

 

For example, the categories of persons identified are, in many cases, illustrative only and simply identify groups of persons more likely to undertake or consider undertaking the activity mentioned in the adjacent columns.  If an activity is described as being viewed as “Permitted,” it is viewed as permitted for all district personnel otherwise having the authority under law or district policy to undertake that action, not just the persons identified in the chart or in a particular column. The same approach is applied to the "Not Permitted" column. Further, the remarks in the chart's "General Considerations" column have relevance for the entire section and are not limited to the specific bullet point immediately to the left of the general consideration.

 

As noted in the Basic Principles section below, hard and fast rules are difficult to establish for every fact pattern involving district facilities that may occur.  Situations may arise that are not squarely addressed by the guidelines or that merit additional discussion.  The PDC urges districts to review the guidelines in their entirety, and to consult with their own legal counsel and with the PDC.  The PDC can be reached at pdc@pdc.wa.gov, 360/753-1111 or toll free at 1-877-601-2828.

 

No elective official nor any employee of his [or her] office nor any person appointed to or employed by any public office or agency may use or authorize the use of any of the facilities of a public office or agency, directly or indirectly, for the purpose of assisting a campaign for election of any person to any office or for the promotion of or opposition to any ballot proposition. Facilities of a public office or agency include, but are not limited to, use of stationery, postage, machines, and equipment, use of employees of the office or agency during working hours, vehicles, office space, publications of the office or agency, and clientele lists of persons served by the office or agency. However, this

does not apply to the following activities:

(1)   Action taken at an open public meeting by members of an elected legislative body or by an elected board, council, or commission of a special purpose district including, but not limited to, fire districts, public hospital districts, library districts, park districts, port districts, public utility districts, school districts, sewer districts, and water districts, to express a collective decision, or to actually vote upon a motion, proposal, resolution, order, or ordinance, or to support or oppose a ballot proposition so long as (a) any required notice of the meeting includes the title and number of the ballot proposition, and (b) members of the legislative body, members of the board, council, or commission of the special purpose district, or members of the public are afforded an approximately equal opportunity for the expression of an opposing view;

(2) A statement by an elected official in support of or in opposition to any ballot proposition at an open press conference or in response to a specific inquiry;

(3) Activities which are part of the normal and regular conduct of the office or agency.

 

Finding -- Intent -- 2006 c 215: "(1) The legislature finds that the public benefits from an open and inclusive discussion of proposed ballot measures by local elected leaders, and that for twenty-five years these discussions have included the opportunity for elected boards, councils, and commissions of special purpose districts to vote in open public meetings in order to express their support of, or opposition to, ballot propositions affecting their jurisdictions.

(2) The legislature intends to affirm and clarify the state's long-standing policy of promoting informed public discussion and understanding of ballot propositions by allowing elected boards, councils, and commissions of special purpose districts to adopt resolutions supporting or opposing ballot propositions." [2006 c 215 § 1.]

 

The board of directors of any school district shall have authority to authorize the expenditure of funds for the purpose of preparing and distributing information to the general public to explain the instructional program, operation and maintenance of the schools of the district: PROVIDED, That nothing contained herein shall be construed to authorize preparation and distribution of information to the general public for the purpose of influencing the outcome of a school district election.

 

(1)  RCW 42.17.130 does not restrict the right of any individual to express his or her own personal views concerning, supporting, or opposing any candidate or ballot proposition, if such expression does not involve a use of the facilities of a public office or agency.

(2)  RCW 42.17.130 does not prevent a public office or agency from (a) making facilities available on a nondiscriminatory, equal access basis for political uses or (b) making an objective and fair presentation of facts relevant to a ballot proposition, if such action is part of the normal and regular conduct of the office

or agency.

 

Normal and regular conduct of a public office or agency, as that term is used in the proviso to RCW 42.17.130, means conduct which is (1) lawful, i.e., specifically authorized, either expressly or by necessary implication, in an appropriate enactment, and (2) usual, i.e., not effected or authorized in or by some extraordinary means or manner. No local office or agency may authorize a use of public facilities for the purpose of assisting a candidate's campaign or promoting or opposing a ballot proposition, in the absence of a constitutional, charter, or statutory provision separately authorizing such use.

 

Similar prohibitions on the use of public facilities by state employees and state officers are described in a memorandum from the Attorney General’s Office regarding RCW

42.52 and available at  http://www.atg.wa.gov/pubs/publicfundsmemo062800.htm

 

1. Public facilities may not be used to support or oppose a candidate or ballot proposition. RCW 42.17.130.  Facilities include school district equipment, buildings, supplies, employee work time, and district publications.  The statute includes an exception to the prohibition for "activities which are part of the normal and regular conduct of the office or agency.”

2. School districts are authorized by statute to prepare and distribute information to the general public to explain the instructional program, operation and maintenance of the schools of the district.  This includes informing the community of the needs the district faces and needs students have that the community may not realize exist.  RCW 28A.320.090 which authorizes the board of directors of any school district to expend funds for this purpose provides that nothing in that statute is to be construed as authorizing preparation or distribution of information to the general public for the purpose of influencing the outcome of a school

district election.

3. School districts are charged with education and instilling civic virtue.

4. School district employees do not forfeit their rights to engage in political activity because of their employment. Neither may district employees be subjected to coercion, pressure, or undue influence to participate in political activity or to take a particular position.  Public officials and employees should make it clear that any participation is personal rather than officially sponsored.

5. Supervisory school personnel have a duty to know, apply, and communicate to their staffs the difference between acceptable information activities and inappropriate promotional activities in support of district ballot measures.

6. School directors are free to support school district ballot issues and engage in other political activities as long as such activities do not make use of district facilities, time or resources and do not either pressure or condone employees' use of district facilities, time or resources to support school district ballot issues.

7. The PDC is charged with enforcing RCW 42.17.130.  This requires consideration and analysis of activities, which may or may not be determined to be in violation of the statute. The PDC has, over the years, developed methods of considering and analyzing activities engaged in by school districts and public offices.  Among the factors considered are the normal and regular conduct of the district and the timing, tone, and tenor of activities as compared with ballot measure elections.

As in any matter where intent is to be considered, hard and fast rules, which will be applicable to all situations, are difficult to establish.

 

The combination of a number of activities into a coordinated campaign involving close coordination between district activities and citizens' committee activities which closely resembles traditional election campaign activities and which is targeted at and/or occurs close in time to a school district ballot measure election is likely to draw close scrutiny and careful consideration by the PDC as to

whether a violation has occurred.

 

8.a. Historically, the PDC has routinely advised and held that with respect to election- related publications, one districtwide objective and fair presentation of the facts per ballot measure is appropriate.

 

In addition, if a district has also customarily distributed this information through means other than a districtwide mailing (e.g. kid mail, regularly scheduled district or school newsletter, website, bilingual documents, or other format), that conduct has also been permitted under RCW 42.17.130 so long as the activity has been normal and regular for the district.

 

b. The PDC will presume that every school district may distribute districtwide an objective and fair presentation of the facts for each ballot measure.  If the district distributes more than this districtwide single publication, the district must be able to demonstrate to the PDC that this conduct is normal and regular for that district. In other words, the district must be able to demonstrate that for other major policy issues facing the district, the district has customarily communicated with its residents in a manner similar to that undertaken for the ballot measure.

 

c. Districts are urged to read the definitions of "normal and regular" at

WAC 390-05-271 and WAC 390-05-273.  Districts need to be aware, however, that in no case will the PDC view a marketing or sales effort related to a campaign or election as normal and regular conduct.

 

 

 

1. Districts may set the definition of work hours for their employees. For example, to the extent that a district defines the lunch hour as a non-work hour, activities to support or oppose a candidate or a ballot measure that do not use public resources and that are held away from district facilities are permitted during the lunch hour.

2. RCW 42.17.680(2) provides that “[n]o employer or labor organization may discriminate against an officer or employee in the terms or conditions of employment for (a) the failure to contribute to, (b) the failure in any way to support or oppose, or (c) in any way supporting or opposing a candidate, ballot proposition, political party, or political committee.”

3. Throughout these guidelines, the clause “objective and fair presentation of the facts” means that in addition to presenting the facts, the materials should present accurately the costs and other anticipated impacts of a ballot measure.

4. For the purposes of these guidelines, “information” refers to the documents prepared, printed, and mailed districtwide by the district’s central administration solely for the purposes of informing residents regarding an upcoming ballot measure. The district and a school may continue to distribute information consistent with the

customary practices of the district and a school, including but not limited to kid mail, newsletters, websites, and multi-lingual documents. These publications may

continue, but if they discuss the ballot measure, the information should be an objective and fair presentation of the facts.

5. For the purpose of these guidelines, the term “normal and regular” is defined in WAC 390-05-273 and clarified further by WAC 390-05-271.

 

 

 

 

 

 

6. RCW 42.17.130(1) provides that action may be “taken at an open public meeting by members of an elected legislative body or by an elected board, council, or commission of a special purpose district including, but not limited to, fire districts, public hospital districts, library districts, park districts, port districts, public utility districts, school districts, sewer districts, and water districts, to express a collective decision, or to actually vote upon a motion, proposal, resolution, order, or ordinance, or to support or oppose a ballot proposition so long as (a)any required notice of the meeting includes the title and number of the ballot proposition, and (b) members of the legislative body, members of the board, council, or commission of the special purpose district, or members of the public are afforded an approximately equal opportunity for the expression of an opposing view;”.

 

 

7. Districts may set the definition of work hours for their employees. For example, to the extent that a district defines the lunch hour as a non-work hour, activities to support or oppose a candidate or a ballot measure that do not use public resources and that are held away from district facilities are permitted during the lunch hour.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

8. For the purposes of these guidelines, “information” refers to the documents prepared, printed, and mailed districtwide by the district’s central administration solely for the purposes of informing residents regarding an upcoming ballot measure. The district and a school may continue to distribute information consistent with the customary practices of the district and a school, including but not limited to kid mail, newsletters, websites, and multi-lingual documents. These publications may continue, but if they discuss the ballot measure, the information should be an objective and fair presentation of the facts.

 

 

 

 

 

 

 

 

 

 

 

Note on Timing of Activities: A particular activity may be subject to the scrutiny of the Public Disclosure Commission depending in part on whether it is a part of the “normal and ordinary” conduct of a district or a school.  Generally, activities that occur after a school board has passed a resolution authorizing a measure to be placed on the ballot will be subject to greater scrutiny by the Public Disclosure Commission than those occurring before such a resolution has been passed.

 

Note on District Policies:  The application of these guidelines is also subject to each district’s own policies as adopted by the school board.

 

Revised by the Commission 9/28/06