What are permitted activities for board members and employees?
The FCPA does permit certain activities by board members and district employees (collectively, “Covered Officials”) including:
- A Covered Official may respond to unsolicited questions.
- A Covered Official with policy making responsibilities may spend no more than $50 of public moneys for letters, telephone calls, or other activities incidental to expressing an opinion. For example, a board member or district manager may spend up to $50 to send a letter to constituents expressing her or his opinion on a ballot issue.
- Board members as elected officials may express a personal opinion on an issue.
- Covered Officials may spend personal funds, make contributions, or spend personal time to urge electors to vote for or against a measure.
- A board of directors may adopt a resolution supporting or opposing an issue. The passage of the resolution may be reported through regular, established means (other than paid advertising). For example, if a district regularly sends out a newsletter reporting the actions of the board at its last meeting, the newsletter may report that the board has adopted a resolution supporting the passage of a ballot measure.
What materials may a district distribute?
Districts may spend public moneys to dispense a factual summary of a ballot measure which must include arguments both for and against the proposal. The summary may not contain a conclusion in favor of or against the issue.
Many governments distribute materials which describe the ballot measure and what it will accomplish without including arguments for and against. While there are some judicial decisions which conclude that such materials do not “urge” a voter to cast a vote in favor of or against a measure, most recent decisions have determined that if such materials are too positive or negative they do urge the voters to cast a vote for or against a measure even if they do not say “vote yes” or “vote no”. Districts should have such materials reviewed by legal counsel before spending public funds to distribute such materials to voters.