Boards, teachers must be careful to toe the line on advocacy
October 30, 2012 | By John Fensterwald | 4 Comments
The humanities professor from California State University, Monterey Bay who was sued by the conservative Howard Jarvis Taxpayers Association this month for urging his students in an email to vote for the tax initiative Proposition 30 ran afoul of the state law (Government Code Section 8314) that bans the use of public resources for campaign activities.
CSU acknowledged as much, calling Professor Ernest Stromberg’s message over the campus email system, which urged students not only to vote for Prop 30, but to work to pass it, “inappropriate and unfortunate.”
The suit raised the complex issue of just what forms of advocacy are appropriate for public employees and elected officials on behalf of ballot issues. While Stromberg’s action appeared improper, other circumstances may not be as clear-cut: the teacher who wears a “No On Prop 32″ button to school; the parent group that wants to buy an ad on a school website for Prop 38, the initiative raising the income tax to bring in $10 billion to K-12 schools and preschools; the school board member who writes an op-ed favoring a local parcel tax? Where does a bright line turn to gray?
The stakes may be even higher than usual this November, with massive cuts to public education on the line depending on what happens to Props 30 and 38, but there’s plenty of guidance from elections past and previous court rulings on the boundaries of both legal and appropriate conduct. Attorney General Kamala Harris presents some hypothetical situations on the AG’s website; the Fair Political Practices Commission has lots of information, too. And the California School Boards Association includes guidelines for political activity for its members.
The simplest advice that can keep elected officials and public officials out of trouble is campaign on your own dime and your own time. And when on the job or in an official capacity, educate, not advocate. So:
- Is it okay for a teacher to wear a button favoring a candidate or initiative to school? Yes, teachers have their First Amendment rights, but they should wear it before and after school or on breaks in the teachers lounge to be safe, not in front of students, says Los Angeles attorney Peter Fagen, who advises school districts on these matters and gave a recent presentation on advocacy to the California School Boards Assn.
- Can teachers make campaign calls using a district-issued cell phone? This is trickier. Certainly not on school grounds or school time, but if the district contributes only a portion of the cost of the plan, and the employee the rest, then it’s probably legal.
- Can a school board pass a resolution endorsing an initiative or bond proposal? Yes, it’s within their capacity to educate the public on matters related to their duties. The landmark 1976 State Supreme Court case Stanson v. Mott and subsequent court cases “have said that a government agency may endorse a measure that is related to its expertise so long as it does not expend funds to promote its passage,” according to the explanation of the Attorney General’s Office.
The board should vote on the resolution at a public meeting, with opportunity for public comment, says the CSBA. The resolution should be informative and factual, dispassionate, and shouldn’t advise the voters to take any actions one way or another. The CSBA’s Delegate Assembly voted last spring to urge voters to support both Prop 30, the governor’s tax initiative, and Prop 38. Its website includes a sample resolution for school boards to adopt endorsing both initiatives. More than 100 boards of trustees have done so, according to CSBA.
Fagen said there is “no hard and fast rule” for when information becomes advocacy. “Courts tend to focus on style, tenor and timing of the material.” Avoid “inflammatory, argumentative or persuasive language,” he advised. And don’t tell constituents how to vote.
The nonpartisan Office of Legislative Counsel advises that public funds should not be used to hold a press conference regarding the district’s position, issue a special press release, or include a copy of the board’s resolution in an email or traditional mailer unless it’s customary to send all resolutions to residents.
- Can school board members write an op-ed in a newspaper or go to campaign rallies for an initiative or bond proposal? Yes, on their own time, using their own money. But if a group requests a school board member or district administrator to speak about an initiative in his or her official capacity, the presentation must be fact-based, according to Fagen.
- Can a board or district use a district website to provide an explanation on an initiative or bond/parcel tax? Here again, the watchword is to inform. A district may present informational materials to the public on ballot issues, the CSBA advises, but “a district must be extremely cautious and ensure that any materials are informational” or neutral in tone, emphasize objective facts, and are consistent with the normal style and communication channels and patterns for the district.” According to Fagen, the district is prohibited from running an ad on its website from a parents group or the campaign committee for a parcel tax or bond – even if the district makes space available to opponents.
- Can a teacher discuss an initiative or local ballot items in class? Yes, as long as it’s an objective presentation with supporters’ and opponents’ positions presented. The younger the students, the more questionable it becomes, however, Fagen said. “A second grader may go home to tell parents, ‘My teacher said that if you don’t vote yes, school budgets will be cut and there will be layoffs.’ Can students tell both sides?”
One compelling reason for educational institutions to be aware of where to draw the line between education and advocacy is the threat of lawsuits. Jon Coupal, president of the Howard Jarvis Taxpayers Association, said Monday that he has been getting about 12 complaints a day about alleged violations of prohibitions on advocacy on behalf of local and state ballot questions and that his association intends to flle additional lawsuits. Complaints have included posting of a “Yes on Prop 30/No on Prop 32″ sign in an elementary school in Santa Ana and sending home a flier supporting Prop 30 in another elementary school in Southern California.
“To us, this is systemic,” said Coupal, “and cannot continue. I would hope, after all this is done, that we can reach accommodations on penalties. There need to be bright-line tests.”