Untitled California Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
______________________________________
OPINION :
: No. 89-1202
of :
: AUGUST 30, 1990
JOHN K. VAN DE KAMP :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE VICTOR J. WESTMAN, COUNTY COUNSEL, CONTRA
COSTA COUNTY, has requested an opinion on the following questions:
1. Can public funds of a city, county or district be lawfully used to draft an initiative
or referendum measure which will be circulated for signatures among the voters with respect to
legislation of another city, county or district?
2. Can public funds of a city, county or district be lawfully used to gather signatures
for an initiative or referendum measure with respect to legislation of another city, county or district?
Is there a distinction in law between a state measure and a local measure regarding gathering
signatures? Is there a distinction in law between the use of public funds regarding gathering
signatures for a referendum measure versus an initiative measure?
3. Can public funds be used to promote an initiative or referendum measure that has
qualified for the ballot? Can a public agency or official use public funds to provide educational
information to the public about a ballot measure? If so, how is a distinction made between
"educational materials" and "campaign literature?"
CONCLUSIONS
1. Public funds of a city, county or district may lawfully be used to draft an initiative
or referendum measure which will be circulated among the voters with respect to legislation of
another city, county or district.
2. Public funds of a city, county or district may not be lawfully used to gather
signatures for an initiative or referendum measure with respect to legislation of another city, county
or district. There is no distinction in law to be drawn between a state measure or a local measure
in this respect. Nor is there a distinction in law to be drawn between a referendum measure versus
an initiative measure.
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3. Public funds cannot be used to promote an initiative or referendum measure that
has qualified for the ballot, at least in the absence of clear and explicit legislative authorization. A
public agency or official can use public funds to provide educational information to the public about
a ballot measure. No hard and fast rule be set forth to distinguish between "campaign literature" and
"educational materials" which will govern each case. Circumstances such as the style, tenor or
timing of the publication may be determinative.
ANALYSIS
Under the provision of article IV, section 1 of the California Constitution "[t]he
legislative power of the State is vested in the California Legislature . . . but the people reserve to
themselves the power of initiative and referendum." Accordingly, with respect to state legislation,
the people may either propose laws to be voted upon by them (the power of initiative) or they may
reject by their vote laws which the Legislature has enacted (the power of referendum). [See Cal.
Const., art. II, §§ 8-10, and generally, Elec. Code, §§ 3500-3524].
Additionally, under the provisions of article II, section 11 of the California
Constitution, "initiative and referendum powers may be exercised by the electors of each city or
county under procedures that the Legislature shall provide. . . ." (See, generally, Elec. Code, §§
3700-4061)1
Finally, as to most special districts which are authorized to enact ordinances, the
Legislature has provided for the initiative and referendum procedures for such districts. (See Elec.
Code, §§ 5150-5201).
In this request for our opinion our focus in questions one and two is upon initiative
or referendum measures which are to be drafted by a city, county or special district and circulated
among the voters for signatures with respect to legislation of another city, county or district.
Accordingly, with respect to questions one and two we do not consider any measures
which might appear on the ballot on advisory matters, but which do not seek to propose legislation
(e.g., the myriad "straw votes" once prevalent concerning the withdrawal of troops from Southeast
Asia.) Such "straw votes" do not fall within the reserved powers of the initiative or referendum.
(See American Federation of Labor v. Eu (1984) 36 Cal. 3d 687, 708-715; 56 Ops.Cal.Atty.Gen. 61
(1973).)
Additionally, with respect to questions one and two we are not concerned with what
this office denominated many years ago as a "voluntary referendum" at the local level. (See 31
Ops.Cal.Atty.Gen. 100 (1958).) Under this procedure the legislative body of a city, county or
district drafts proposed legislation on its own motion, without any petition being presented to it by
the voters, and submits the proposed legislation to the voters for their approval or rejection. (See
Elec. Code, §§ 3750, 4017, 5201.) Thus, the drafting of the proposed legislation is authorized by
statute, it involves the agency's own legislation, and there is no circulation of any petition for the
signature of the voters.
With respect to question three, that is whether a local agency may support a ballot
measure or provide information concerning the measure to the voters, we also consider ballot
measures in their broader sense, that is any measure properly submitted to the voters, whether by
1
Chartered cities may also provide for initiative and referendum by charter. (Cal. Const., art. II,
§ 11; Elec. Code, § 4061.)
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initiative, referendum or by the state legislature or a local legislative body. (See Elec. Code, § 38:
"``Measure' means any constitutional amendment or other proposition submitted to a popular vote
at any election.")
Procedurally, at both the state and local level an initiative follows three basic steps,
which are: 1) proposed legislation is drafted and placed in petition form for circulation among the
voters of the jurisdiction for their signature; 2) the measure is filed with the appropriate state or
local election officials and then circulated among the voters in an attempt to obtain the number of
signatures of voters legally required to qualify the measure for placement on the ballot; and 3) if the
required number of signatures are obtained, the measure is placed on the election ballot for the
electorate to either adopt or reject the proposed legislation by their vote. (See generally, Elec. Code,
§ 3500 et seq.)
Likewise, procedurally at both the state and local level, a referendum measure, that
is, one whereby the voters either approve or reject legislation which has just been enacted by their
legislative body, also follows the same three basic steps: 1) the measure, which sets forth the
question whether the specified legislation shall take effect, is drafted; 2) the measure is filed and
then circulated among the voters in an attempt to obtain the number of signatures legally required
to place the measure on the ballot; and 3) if it qualifies for the ballot the electors vote on the measure
to determine if the legislation shall or shall not take effect. (Ibid.)
In this request for our opinion we are asked whether local agencies may use public
funds to draft initiative and referendum measures as to other local agencies and, if so, what
restrictions may apply to the use of such funds.
Additionally, we are asked 1) whether local agencies may use public funds to gather
signatures for such initiative and referendum measures and 2) whether there is a distinction in law
to be drawn between an initiative measure and a referendum measure, or a state or local measure in
this respect.
Finally, we are asked whether a local agency may promote an initiative or referendum
measure which has qualified for the ballot, or provide "educational information" as opposed to
"campaign literature" to the public concerning ballot measures generally.
We conclude that local agencies, that is, cities, counties or districts may use public
funds to draft an initiative or referendum measure as to other local agencies. The measure, however,
must serve the legitimate governmental interests of the drafting local agency. Furthermore, public
funds may not be used to endeavor to secure the support of the electorate on only one side of the
issue.
We conclude, however, that local agencies, that is, cities, counties and districts, may
not use public funds to gather signatures for an initiative or referendum measure and that there is
no distinction to be made in this respect as to an initiative or a referendum measure, or a state or
local measure.
Finally, we conclude that public funds may not be used to promote an initiative or
referendum measure, absent clear legislative authorization. However, a public agency or official
may provide to the public "educational information" about a ballot measure if such information is
neutral in its content and presentation.
We reach these conclusions primarily upon the authority of three California cases
decided over the last decade and a half, that is Stanson v. Mott (1976) 17 Cal. 3d 206, Miller v.
3. 89-1202
Miller (1978) 87 Cal. App. 3d 762, and League of Women Voters v. Countywide Crim. Justice
Coordinating Com. (1988) 203 Cal. App. 3d 529. We will discuss the salient features of each case
and then apply them to the specific questions asked.
1. Stanson v. Mott
Stanson v. Mott, supra, 17 Cal. 3d 206, presented the question whether the State
Director of Beaches and Parks was authorized to expend public funds in support of certain state
bond measures to be voted upon by the people. Such bonds were to provide funds to enhance state
and local recreational facilities.
The California Supreme Court, relying heavily upon its early decision in Mines v.
Del Valle (1927) 201 Cal.273, concluded that the Director of Beaches and Parks lacked such
authority since it could not find it in the statutes. The Court set forth the basic rule that ". . . at least
in the absence of clear and explicit legislative authorization, a public agency may not expend public
funds to promote a partisan position in an election campaign. . . ." (17 Cal.3d at pp. 209-210.) The
Court, after reviewing cases from other jurisdictions, noted that ". . . every court which has
addressed the issue to date has found the use of public funds for partisan campaign purposes
improper, either on the ground that such use was not explicitly authorized . . . or on the broader
ground that such expenditures are never appropriate. . . ." The Court further concluded that:
"Underlying this uniform judicial reluctance to sanction the use of public
funds for election campaigns rests an implicit recognition that such expenditures
raise potentially serious constitutional questions. 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 (see, e.g., Madison, The Federalist Papers, Nos.
52, 53; 10 Richardson, Messages and Papers of the Presidents (1899) pp. 98-99
(President Jefferson)); 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." (17 Cal.3d at p. 217.)
The Court also held that there was no distinction to be drawn between candidates and
ballot measures in this respect.
The Court did, however, note the various statutory provisions permitting legislative
lobbying, the duty of elected and appointed officials to implement current administrative policies
by suggesting legislation, and the distinction between such processes and "election campaigning."
The Court thus stated:
"Moreover, the suggested analogy between election campaigning and
legislative lobbying ignores important distinctions between the two activities. To
begin with, California statutes draw a clear distinction between the two matters;
while various provisions authorize public expenditures for appropriate legislative
lobbying activities (see, e.g., Gov. Code, §§ 50023, 53060.5, 82039, 86300, subd.
(a); cf. Cal. Const., art. IV, § 15), no similar provision sanctions the use of public
funds in election campaigns. (Cf. Ed. Code, § 1073 (quoted in fn. 7, post).)
"More fundamentally, while public agency ``lobbying' efforts undeniably
involve the use of public funds to promote causes which some members of the public
4. 89-1202
may not support, one of the primary functions of elected and appointed executive
officials is, of course, to devise legislative proposals to attempt to implement the
current administration's policies. Since the legislative process contemplates that
interested parties will attend legislative hearings to explain the potential benefits or
detriments of proposed legislation, public agency lobbying, within the limits
authorized by statue (see fn. 4, ante), in no way undermines or distorts the legislative
process. By contrast, the use of the public treasury to mount an election campaign
which attempts to influence the resolution of issues which our Constitution leave to
the ``free election' of the people (see Cal. Const., art. II, § 2) does present a serious
threat to the integrity of the electoral process." (17 Cal.3d. at p. 218, footnotes
omitted, emphasis added.)
Finally, the Court closed with the caveat that the general powers granted to the
Director of Parks and Recreation did "provide the department with authority to spend funds
budgeted for informational purposes [regarding the agency's activities and long range needs and
plans], to provide the public with a ``fair presentation' of relevant information relating to a park bond
issue on which the agency has labored." (17 Cal.3d at p. 221.)
2. Miller v. Miller
The case Miller v. Miller (1978) 87 Cal. App. 3d 762 (Miller I)2 followed shortly after
the Court's decision in Mott.
In Miller I the issue was whether the California Commission on the Status of Women
had the power to campaign both in this state and elsewhere for the ratification of the Equal Rights
Amendment (ERA). These activities included lobbying "both at the legislative and the grass-roots
level." The "grass-roots" level included urging the general public to contact their legislators in
support of the ERA. (87 Cal.App.3d at p. 766.)
The Commission took the position that ratification of the ERA would not involve the
electoral process, since the matter could not be submitted to the voters; accordingly, its lobbying
activities could not be said to interfere with the electoral process; and hence its lobbying activities
were legally permitted. Plaintiffs urged, however, that the Commission was not legally authorized
to do any lobbying. They urged that since state legislatures could do nothing more than vote "yes"
or "no" on the ERA ratification, such would not involve the legislative process so as to authorize
lobbying.
The Court, however, stated that "[s]uch labeling is not very helpful to us. Rather, we
conclude that the real issue under Stanson is not the objective of the promotional activity but the
audience to which it is directed" (87 Cal.App.3d at p. 768.) The Court noted that "[i]t is one thing
for a public agency to present its view to the Legislature. It is quite another for it to use the public
treasury to finance an appeal to the voters to lobby their Legislature in support of the agency's point
of view. The latter ``undermines and distorts the legislative process' just as clearly as ``the use of the
public treasury to mount an election campaign. . . [distorts] the integrity of the electoral process.'
(Stanson, supra, 17 Cal.3d at p. 218.) (Italics added)." (87 Cal.App.3d at pp. 768-769.)
2
Miller v. California Com. On Status of Women (1984) 151 Cal. App. 3d 693 (Miller II) was
decided after legislative action was taken to modify the result in Miller I as to the lack of authority
of the state agency to take the action it took. Miller v. California Com. On Status of Women (1985)
176 Cal. App. 3d 454 concluded the litigation, settling matters of costs.
5. 89-1202
The Court concluded, however, that under the facts presented and the "audience test"
the plaintiffs had made an adequate showing on the summary judgment motion that the
Commission's activities involved election campaigning and not mere legislative lobbying for which
no "clear and explicit" legislative authority existed. It therefore held that "any expenditures of
public funds to marshal public support for the ERA were unauthorized." (87 Cal.App.3d at p. 772.)
3. League of Women Voters v.
Countywide Crim Justice Coordinating Com.
League of Women Voters v. Countywide Crim. Justice Coordinating Com., supra,
203 Cal. App. 3d 529 is the last of the triad of California cases relevant to the questions presented
herein. In this case the issue presented was the legality of activities taken by the County of Los
Angeles and its officials 1) to draft a proposed state initiative measure to provide for certain
procedural changes in the criminal justice system relating to juries in criminal cases; 2) to find a
sponsor or sponsors for such statewide initiative measure; and 3) to indicate support for such
measure through speeches and otherwise. In resolving the issues presented, the court drew heavily
upon Miller I and Stanson v. Mott, applying the concepts discussed therein to its facts.
With respect to the county's activities in drafting the proposed statewide initiative and
finding sponsors, the court found no difficulty in implying such power from 1) the legitimate county
interest in the subject matter 2) the broad autonomous legislative and fiscal powers possessed by the
county and 3) the fact that the drafting stage would not involve partisan campaign activity. The
Court rejected arguments of the plaintiffs that drafting the initiative and seeking out sponsors was
inherently partisan in nature and that the "audience" was necessarily the electorate.
Accordingly, relying upon Stanson v. Mott, and the discussion therein regarding the
power of a public agency to lobby before other public bodies (including section 50023 of the
Government Code) the court then noted that that case had stated that "one of the primary functions
of elected and appointed officials is, of course, to devise legislative proposals to attempt to
implement the current administration's policies." (203 Cal.App.3d at p. 544.)3 Relying then upon
a series of New Jersey cases the court concluded that "[it] is logical to conclude the power to devise
legislative proposals to serve a local entity's perceived interests implies the power to draft proposed
legislation." (203 Cal.App.3d at p. 547.) The court then took this concept one step further and
concluded that "if the interests a local government seeks to serve are legitimate but the Legislature
has proven disinterested, there appears to be no logical reason not to imply from the indispensable
3
Section 50023 of the Government Code provides:
"The legislative body of a local agency, directly or through a representative,
may attend the Legislature and Congress, and any committees thereof, and present
information to aid the passage of legislation which the legislative body deems
beneficial to the local agency or to prevent the passage of legislation which the
legislative body deems detrimental to the local agency. The legislative body of a
local agency, directly or through a representative, may meet with representatives of
executive or administrative agencies of state, federal, or local government to present
information requesting action which the legislative body deems beneficial to, or
opposing action deemed detrimental to, such local agency. The cost and expense
incident thereto are proper charges against the local agency."
Accordingly, a local agency may not only lobby before Congress and the State Legislature, but may
also "lobby" other local agencies as to what is beneficial or detrimental to them.
6. 89-1202
power to draft proposed legislation the power to draft a proposed initiative measure in the hope a
sympathetic private supporter will forward the case and the public will prove more receptive." (263
Cal.App.3d at p. 548). The Court distinguished between drafting a proposed initiative, which it
found did not fall within the rubric of partisan campaigning, and urging a particular vote on a matter
which has already qualified for the ballot. The court in summary held:
"Clearly, prior to and through the drafting stage of a proposed initiative, the
action is not taken to attempt to influence voters either to qualify or to pass an
initiative measure; there is as yet nothing to proceed to either of those stages. The
audience at which these activities are directed is not the electorate per se, but only
potentially interested private citizens; there is no attempt to persuade or influence
any vote. (Miller I, supra, 87 Cal.App.3d at p. 768.) It follows those activities
cannot reasonably be construed as partisan campaigning. Accordingly, we hold the
development and drafting of a proposed initiative was not akin to partisan campaign
activity, but was more closely akin to the proper exercise of legislative authority."
(203 Cal.App.3d at p. 550.)
In this respect, however, we would point out that it is not every piece of proposed
legislation which a city, county or district may legitimately draft. For example, a city could not draft
a entire new county general plan to be submitted to the voters of the county. The proposed draft
would still, in the words of the New Jersey Court, supra, have to serve the city's "perceived
interests", that is, relate to the city's governmental matters. Otherwise, the drafting of the measure,
which uses city tax dollars, would constitute a waste of the public funds of the city. However, were
the city to draft a proposed amendment to the general plan on a matter which impacted upon the city
(e.g, the location of a garbage dump in nearby unincorporated territory) then we believe it could be
said to serve the city's "perceived interests" and serve a public purpose of the city. The following
reasoning of the court in League of Women Voters v. Countywide Crim. Justice Coordination Com.,
supra, 203 Cal. App. 3d 529, 554 would then be pertinent:
"There is no authority which provides useful guidance on this subject, other
than the principle enunciated, ante, that the nature of the public purpose primarily
is a matter of legislative discretion which will not be disturbed if it is supported by
a reasonable basis. . . ."
In short, we believe a city, county or district would have wide discretion as to matters
which legitimately affect it, but such discretion is not without boundaries.
4. Use of Public Funds To Draft
Initiative or Referendum Measure
We now proceed to the first question presented for resolution herein, that is, whether
public funds of a city county or district may be used to draft an initiative or referendum measure
with respect to legislation of another city, county or district.
We conclude that League of Women Voters v. Countywide Crim. Justice
Coordinating Com., supra, 203 Cal. App. 3d 529, which is clear authority for local agencies to draft
a statewide initiative in which they have a legitimate interest, in principal also constitutes authority
in a proper case for a local agency to draft a local initiative measure, directed to the electorate of
another local agency. For example, as already noted a city has a legitimate interest as a city in many
county legislative matters, such as a county general plan insofar as it may impact the city. As noted
by the court in League of Women Voters, which reasoning would be applicable in principle whether
directed to state legislative matter or the legislative matters of another local agency:
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"Nonetheless, if the interests a local governmental entity seeks to serve are
legitimate but the Legislature has proven disinterested, there appears to be no logical
reason not to imply from the indisputable power to draft proposed legislation the
power to draft a proposed initiative measure in the hope a sympathetic private
supporter will forward the cause and the public will prove more receptive. (2) ``"The
determination of what constitutes a public purpose is primarily a matter for
legislative discretion [citations], which is not disturbed by the courts so long as it has
a reasonable basis."' (Shean v. Edmonds (1948) 89 Cal. App. 2d 315, 323 [200 P.2d
879], quoting from County of Alameda v. Janssen (1940) 16 Cal. 2d 276, 281 [106
P.2d 11, 130 A.L.R. 1141]; accord, Board of Supervisors v. Dolan (1975) 45
Cal. App. 3d 237, 243 [119 Cal. Rptr. 347].)" (203 Cal.App.3d at p. 548.)
Additionally, we believe there is no logical distinction to be drawn between drafting
an initiative measure and drafting a referendum measure. Both relate to the legislative process,
albeit at difference stages. However, Stanson v. Mott and its progeny still teach that absent clear
and explicit authority "a government may not ``take sides' in election contests." (17 Cal.3d at p. 217).
However under League of Women Voters "sides" are not taken at the drafting stage or even at the
stage where sponsors for the measure are sought. The court in that case, discussing the New Jersey
cases previously alluded to, stated: "Reilly v. Ozzard (1960) 33 N.J. 529 [166 A.2D 360, 89 A.L.R.
2d 612] holds that a local government entity has the right to seek or oppose legislation affecting its
interests and may draft legislation to accomplish that end." (203 Cal.App.3d at p. 547, emphasis
added.) Although a referendum petition itself does not propose "legislation", we believe it travels
with similar credentials in the context of the rules enumerated in Stanson v. Mott and its progeny
since it relates to the final stage of the legislative process, and opposes legislation.
We therefore conclude that a local agency under the reasoning of the case law, and
by analogy to it lobbying powers, (see, e.g., sec. 50023 of the Government Code, supra.) may draft
an initiative or referendum petition. This conclusion however carries the caveats found in the case
law to the effect that the matter must be of legitimate interest to the drafting public agency and that
public funds may not be used to endeavor to secure the support of only one side of the issue. To be
of "legitimate interest" to the local agency we believe that the legislation at which the measure is
directed must effect the local agency as a local agency, or affect the citizens of the local agency in
their status as citizens of that local agency. Mere general interest of the electorate in a matter, (e.g.,
in "pro-life" or "pro-choice" matters), would not be a sufficient or a legitimate interest.
5. Securing Signatures On An
Initiative or Referendum Petition
The second question presented for resolution herein is whether a city, county or
district may use public funds to gather signatures for an initiative or referendum measure. We
conclude they may not do so and that there is no difference between a state or local measure in the
this respect.
In League of Women Voters v. Countywide Crim. Justice Coordinating Com., supra,
203 Cal. App. 3d 529 the court concluded that the drafting of an initiative petition and seeking out
possible sponsors for the measure by the county did not cross the prohibited line drawn in Stanson
v. Mott as to using public funds to "take sides" in partisan campaigns.
In doing so the Court noted that the decided case law on the subject in California and
elsewhere had involved measures which had already qualified for the ballot. In justification of its
decision that the drafting and seeking out of sponsors would not constitute the prohibited "taking
sides", the court concluded first as to the drafting stage as follows:
8. 89-1202
"Clearly, prior to and through the drafting stage of a proposed initiative, the
action is not taken to attempt to influence voters either to qualify or to pass an
initiative measure; there is as yet nothing to proceed to either of those stages. The
audience at which these activities are directed is not the electorate per se, but only
potentially interested private citizens; there is no attempt to persuade or influence
any vote. (Miller I, supra, 87 Cal.App.3d at p. 768.) It follows those activities
cannot reasonably be construed as partisan campaigning. Accordingly, we hold the
development and drafting of a proposed initiative was not akin to partisan campaign
activity, but was more closely akin to the proper exercise of legislative authority."
(203 Cal.App.3d at p. 550.)
As to the seeking out sponsors the court noted that arguments could be presented on both sides of
the issue of "taking sides." Thus the court stated:
"Whether CCJCC legitimately could direct the task force to identify and
secure a willing sponsor is somewhat more problematical. The power to direct the
preparation of a draft proposed initiative does not necessarily imply the power to
identify and secure a willing proponent to sponsor it thenceforward. On the one
hand, it can be argued the power to draft the proposed initiative is essentially useless
without the power to seek out a willing proponent and the latter power thus must be
implied. On the other hand, it can be argued this brings CCJCC, as an arm of the
board of supervisors, too close to impermissible publicly funded political activity,
in that it necessarily involves some degree of advocacy or promotion. The logical
force of the latter view depends largely on the approach the task force employed in
identifying a willing proponent. Unfortunately, the record sheds no light on that
subject." (203 Cal.App.3d p. 553.)
The Court then reviewed what little evidence was available on this point, acknowledged that the
preliminary drafting activities of the county "may have benefited those private parties who
eventually became the sponsors and official proponents of the draft proposed initiative," and then
concluded as follows:
". . . On balance, we conclude the power to draft the proposed initiative
necessarily implies the power to seek out a willing proponent. We do not perceive
the activities of identifying and securing such a proponent for a draft initiative as
entailing any degree of public advocacy or promotion, directed at the electorate, of
the single viewpoint embodied in the measure.
"To the extent CCJCC had authority to direct the performance of the above
acts, it is clear the county's elected officers had authority to participate in CCJCC and
its subcommittees and to perform a broad spectrum of tasks at public expense. It is
only at the point the activities of CCJCC and it subcommittees cross the line of
improper advocacy or promotion of a single view in an effort to influence the
electorate that the actions of elected officers or their deputies, undertaken at public
expense, likewise would become improper." (203 Cal.App.3d at p. 554; emphasis
added.)
In our view, securing signatures at public expense for a proposed initiative would
"cross the line of improper advocacy or promotion of a single point of view in an effort to influence
the electorate." Procedurally, once a proposed initiative or referendum is filed either at the state or
local level, it is the proponents' task to qualify the measure for the ballot by obtaining the requisite
number of signatures and filing the petition. (See, generally, Elec. Code, §§ 3502, 3513, 3522,3702-
9. 89-1202
3706, 4002, 4005, 4008, 4053, 5152, 5200.) Accordingly, using public funds to obtain signatures
would aid the proponents by essentially financing their partisan task. As such, the funds would be
used to advocate the position taken by the proponents, that is, that the measure they support should
not only qualify for the ballot, but should be adopted by the electorate. This we believe is the clear
message that is given to the electorate when signatures on a petition are sought. The point of
neutrality would be passed. This the public agency cannot do without clear and explicit
authorization under Stanson v. Mott.
Accordingly, public funds of a city, county or district may not be used to gather
signatures for an initiative or referendum measure. There would be no legal distinction between an
initiative or referendum. Both would fall within the rubric of "taking sides" in partisan campaigns.
Nor would there be any difference between a state measure and a local measure in this respect, since
the forbidden line of advocacy of a single point of view would be crossed.
6. Promotion of Ballot Measures and
Providing Educational Materials
The third question presented is whether public funds can be used to promote an
initiative or referendum measure that has qualified for the ballot; whether a public agency or official
can use public funds to provide educational information to the public about a ballot measure; and
how a distinction is to be made between "educational materials" and "campaign literature."
These questions are answered by reference to the Court's language in Stanson v. Mott,
supra, 17 Cal. 3d 206. As will be recalled the Court in that case set forth the basic rule that ". . . at
least in the absence of clear and explicit legislative authorization, a public agency may not expend
public funds to promote a partisan position in an election campaign." (Id., at pp. 209-210.)
Accordingly, absent clear legislation authorization, a public agency may not use public funds to
promote an initiative or referendum measure.
As will also be recalled, however, Stanson v. Mott concluded with the caveat that a
public agency may provide informational materials to voters concerning ballot measures. In this
respect, the Courts guidelines and reasoning are relevant concerning the distinction between what
may be termed "educational materials" and "campaign literature." The Court stated (17 Cal.3d at
pp. 221-222):
"Problems may arise, or course, in attempting to distinguish improper
``campaign' expenditures from proper ``informational' activities. With respect to some
activities, the distinction is rather clear; thus, the use of public funds to purchase such
items as bumper stickers, posters, advertising ``floats,' or television and radio ``spots'
unquestionably constitutes improper campaign activity (see, e.g., Mines v. Del Valle,
supra, 201 Cal. at p. 276; Porter v. Tiffany, supra, 502 P.2d at p. 1386), as does the
dissemination, at public expense, of campaign literature prepared by private
proponents or opponents of a ballot measure. (See 51 Ops.Cal.Atty.Gen. 190, 194
(1968); Stern v. Kramarsky, supra, 375 N.Y.S.2d 235.) On the other hand, it is
generally accepted that a public agency pursues a proper ``informational' role when
it simply gives a ``fair presentation of the facts' in response to a citizen's request for
information (see Citizens to Protect Pub. Funds v. Board of Education, supra, 98
A.2d 673, 677; Stern v. Kramarsky, supra, 375 N.Y.S.2d 235, 239-240; 51
Ops.Cal.Atty.Gen. 190, 193 (1968) ) or, when requested by a public or private
organization, it authorizes an agency employee to present the department's view of
a ballot proposal at a meeting of such organization. (See Ed. Code, § 1073; cf.
Citizens to Protect Pub. Funds v. Board of Education, supra, 98 A.2d 673-677.)
10. 89-1202
"Frequently, however, the line between unauthorized campaign expenditures
and authorized informational activities is not so clear. Thus, while past cases
indicate that public agencies may generally publish a ``fair presentation of facts'
relevant to an election matter, in a number of instances publicly financed brochures
or newspaper advertisements which have purported to contain only relevant factual
information, and which have refrained from exhorting voters to ``Vote Yes,' have
nevertheless been found to constitute improper campaign literature. (See 35
Ops.Cal.Atty.Gen. 112 (1960); 51 Ops.Cal.Atty.Gen. 190 (1968); cf. 42
Ops.Cal.Atty.Gen. 25, 27 (1964).) In such cases, 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." (Fn. omitted.)
Accordingly, we conclude that public funds cannot be used to promote an initiative
or referendum measure that has qualified for the ballot, at least in the absence of clear and explicit
legislative authorization. A public agency or official can, however, use public funds to provide
educational information to the public about a ballot measure. No hard and fast rule can be set forth
to distinguish between "campaign literature" and "educational materials." Each case will be
determined on its own facts. Circumstances such as the style, tenor or timing of the publication may
aid in making that determination.4
****
4
In so concluding we note that the California cases reserve to individual public officers their right
to speak out in partisan matters so long as there is no improper expenditure of public funds by such
officials. Likewise, a local legislative body may go on record at a public meeting as being in favor
of or opposed to a particular measure. (League of Women Voters v. Countywide Crim. Justice Com.,
supra, 203 Cal. App. 3d 529, 555-556, 560.)
11. 89-1202