Speaking Out on Palesky

(from Maine Townsman, October 2004)
By Geoff Herman, Director of State & Federal Relations, MMA

As the debate over the Palesky tax cap initiative is being engaged throughout the state, spin-off debates crop up like little tornados on the edge of a hurricane. One of those spin-off debates swirls around the issue of the degree to which people in government positions can advocate for or against a referendum question that will be going before the voters.

That question came to the forefront when a legislator from South Portland, Rep. Louis Maietta, sent a letter to Maine’s Attorney General Steve Rowe (AG) in late August asking for an advisory opinion regarding the legality of the activity on both the state and local level in response to the Palesky tax cap proposal. In both the Maietta letter and the 90 pages of accompanying material supplied by Palesky supporters and University of Maine Law School professor Orlando Delogu, a variety of claims were made to suggest that state and local officials and employees could be violating the law when they speak out against the Palesky proposal.

Trying to sort through all the claims, allegations and suggestions in the materials presented to the AG under Rep. Maietta’s letter suggests that there could be some confusion — at least on the part of the Palesky supporters — regarding the advocacy rights and responsibilities of elected and appointed government officials and of government employees when it comes to a statewide referendum question. Certain terms are used in this debate carelessly, without definition or example – terms like “partisan advocacy” or “indirect use of public resources”. In the absence of any definitions or clearly-stated claims, the suggestions of the Palesky supporters could lead some municipal officials and employees to believe that there is something illegal or wrong about having an opinion about the Palesky proposal and standing up and expressing it. Nothing could be further from the truth.

On September 10, 2004, Attorney General Rowe issued a response to the Maietta request which is clearly worded, informative and helpful. The AG’s written response can be found on MMA’s website (www.memun.org) under “Palesky Proposal News.”

This article attempts to draw on Attorney General Rowe’s written response, combined with additional input from MMA’s Legal Services Department and from a September 3, 2004 Memorandum by City of Portland Corporation Counsel Gary Wood, in order to provide the “Can Do” and “Can’t Do” guidelines to follow when municipal officials address referendum questions that affect their communities. These concepts aren’t new. MMA has used them to guide municipal officials for many years. Although they are provided in the context of the debate regarding the Palesky proposal, they would apply to any proposed law that might be placed before the voters at referendum.

Can (perhaps even should) do: Information sharing. Municipal officials should provide information to their constituents about the impacts of any proposed law that would affect their community. Most elected selectmen and councilors consider this task not merely as something they are permitted to do; instead, they appropriately believe it to be a duty or obligation of municipal leadership. People are elected to the position of municipal officer for the purpose of providing information to the citizens of the town or city with respect to important matters that affect their community.

Indeed, information sharing may be a “should do” item. As Attorney General Rowe expressed it in his response letter to Rep. Maietta: “Regardless of whether one supports or opposes such a cap, the provision of services is part of the core mission of local government. Preparation and dissemination of information concerning the impact of the tax cap and alternatives for compliance with its limitations should the voters approve it would appear to be legally appropriate. Indeed, it may be argued that municipal officials have an obligation to inform their constituents of the impact of the tax cap on their town’s budget.”

Similarly, Gary Wood wrote in his Memorandum: “In my opinion the law is clear that elected and appointed municipal officials as well as all municipal employees have the right to seek, prepare and distribute information related to the Palesky tax cap and its impact on municipal government and citizens. Facts are important to an informed debate on any public policy issue and the Palesky tax cap is no exception.”

The type of statement that would fall under this type of information activity might begin “If the Palesky proposal is adopted by the voters, the following impacts could be expected….” or “Our analysis of the Palesky proposal predicts the following impacts if the voters adopt the proposal on November 2…”

Can do: Expending public resources to disseminate information. The fundamental purpose of engaging in the Palesky debate is to get clear, factual, credible information to your constituents so they will enter the polling place on November 2 fully informed about the Palesky proposal and its impacts. There is nothing in Maine law that discourages municipal leaders from delivering on that responsibility. Either direct expenditures (such as mailing out an information flyer) or indirect expenditures (such as posting information on the town’s website or in the town’s newsletter, holding a forum in the town hall, the use of personnel and incidental administrative expenditures to carry out these functions, etc.) are perfectly legitimate as long as you are disseminating information rather than advocating a position and as long as the funds are drawn from an appropriate account that would otherwise be available for the purpose of preparing and distributing factual information to the general public.

In the words of Attorney General Rowe: “We have found no case concluding that public resources such as personnel time cannot be used in support of these allowable activities.”

Can do: Stating your position. Elected municipal officials can explain to your colleagues, constituents and interested members of the general public how you intend to vote on the Palesky proposal on November 2; this falls under the category of providing information to the voters. A statement of this nature might begin “There are five reasons why I/this Board intends to vote “no” on Question #1 on November 2…”. For boards of selectmen, school boards, town and city councils, etc., an example of this type of information would be a resolution that articulates the board’s formal opposition to the ballot question. Except for the special rules that apply within the polling place when voting is occurring (see below), that type of information sharing is not barred by law. The distinction between that type of information-sharing and “partisan advocacy” is the difference between introspection and exhortation — between explaining how you intend to vote versus urging other people to vote in a certain way. However, taking out an advertisement in the local newspaper at public expense to advertise the individual or board’s position may well be going too far. Also municipal employees, should avoid stating their position on the Palesky initiative to the public while they are working.

This is a point that the AG’s letter touched upon, concluding in part that governmental bodies and officials “may disseminate information on matters such as citizen initiatives and may express their views as public officials.” He noted that in municipal elections, State law (30-A M.R.S.A. § 2528(5)) actually requires the municipal officers’ (selectmen or counselors) recommendation to accompany any appropriation article voted on by secret ballot referendum. This recommendation is to be published on the ballot itself. If the locally-initiated action affects the school budget, the school board is similarly required to print its recommendation to the voters. Where Maine law requires the municipal and school boards to take a position on a local initiative that affects the town budget, it would be illogical to suggest that they are somehow prohibited from expressing their point of view in the case of a similar type of statewide referendum that will affect municipal budgets.

Can do: Make public facilities available to all parties. If your city or town routinely makes meeting rooms, classrooms or other spaces available to the public for meetings, your city or town can make those same rooms or spaces available to tax cap supporters and opponents on the same terms and conditions as apply to any other group using the rooms or spaces. Also, if a municipality wants to expend incidental public resources to sponsor a full debate, where both or all sides of an issue are invited to advocate for their respective positions, there is certainly no legal bar to providing this service to the public.

Can do, but only if privately financed and on own time: “Partisan advocacy”. There is a type of campaign-related activity that is of a different nature than information sharing. In the AG’s letter it is referred to as “partisan advocacy” or “partisan activity”. The primary goal of “partisan advocacy” is to achieve a certain outcome – either a ‘yes’ vote or a ‘no’ vote – on November 2. The hallmark of this type of activity is exhortation…urging people to vote in one particular way. Statements such as “Please vote ‘no’ on Question #1.” or “I urge you to vote ‘no’ on Question #1 on November 2….” are examples of partisan advocacy.

It is not the case that the law bars “partisan activity” on the part of public officials and employees. What the Attorney General’s response points out is that public resources should not be expended for the sole or primary purpose of financing (one-sided) “partisan advocacy”. If municipal officials and employees on their own time and within an effort that is funded by private rather than public resources want to engage in partisan activity, such as by contributing their own resources and energy to a political campaign or political action committee, there is no legal bar to that activity. It is a free country, and municipal officials and employees may exercise their First Amendment right of freedom of speech on their own time.

Can’t do: Expend public resources for partisan advocacy. What the Attorney General’s letter actually points out is that that public resources should not be expended for the sole or primary purpose of financing one-sided “partisan advocacy” “without express [legislative] authorization.” An example of this type of expenditure would be if a town meeting or city council appropriated funds as a contribution to a political action committee. Even with that direct authority, however, there may be a problem according to Attorney General Rowe, who explains that there is unsettled law about whether such expenditures, in certain circumstances, could be challenged for infringing on citizens’ constitutional rights. For that reason, MMA recommends that municipalities do not contribute to PACs or otherwise authorize the expenditure of public resources for one-sided “partisan activity.”

As Gary Wood stated, “That being said, the use of municipal property and time that is paid for by the taxpayers must stop short of advocating a vote for or against the initiative. While the line between providing information and advocacy may in some cases be difficult to draw or define, the City Administration has made it clear that City employees should not use City equipment or supplies or spend time during their work day advocating for or against the tax cap.”

Can’t do: Special rule at polling places. A special rule applies within 250 feet of the polling place, where no campaigning, activity or advertising material is allowed that could influence how a person might mark their ballot. Municipal officials and politicians are familiar with this rule, particularly as it applies on election day. However, the same rule also applies whenever the “polling place” is open for the purpose of accepting absentee ballots, so between now and November 2 municipal officials need to be cognizant of the fact that advocacy materials (such as lawn signs and bumper stickers) should be removed and information-sharing should not be conducted within the 250-foot campaign-free zone when the town clerks’ offices (i.e., the “polling place”) are open. The Secretary of State’s Office intends to mail an informational bulletin to municipal election clerks on this subject sometime this month.

The key, therefore, to differentiating between activities that can be supported with public resources and those that can’t be is whether the resources are used to distribute information or whether they are used to urge a particular result.

Information that can be disseminated with public funds includes facts and figures, analysis, and the board of municipal or school officers’ position on the matter – fair comment, and not advocacy. Further, making exhortations to the general electorate to vote a certain way on an initiative is a legitimate expression of political speech and public officials and employees are not barred from exercising that right. However, public resources should not be used to support those advocacy activities, and municipal officials and employees are well advised to engage in those activities on their own time and at their own expense.