Guest article by Paul Wisor, Sherman and Howard P.C.

In most situations, the use of government money or resources to influence an election in Colorado is against the law. The Fair Campaign Practices Act, Colorado Revised Statutes, Section 1-45-101, et seq. (the “FCPA”) and Article XXVIII of the Colorado Constitution govern, among other things, the use of public moneys in a campaign involving any ballot issues. Below is a brief outline of “Can Do’s” and “Can’t Do’s” with respect to ballot issues and the FCPA restrictions on public entities, including special districts, board members and public employees.

“Can Do’s”

• The Board may adopt a resolution recognizing an election issue as one of “official concern.”
  • The Board may adopt a resolution taking a position of advocacy in support of or against an issue. The resolution may recite facts and/or arguments in supporting the Board’s position.
  • The passage of the Resolution may be reported in established, customary ways
• The Board may authorize the expenditure of public moneys and make contributions to disseminate a factual summary on an issue, which must include arguments both for and against.
• A Board member or government employee may respond to questions about election issues during work time, so long as questions are not solicited.
  • Responses should be impartial.
  • Responses should not urge electors to vote one way or the other.
    • An Administrative Law Judge opinion has held that employees could answer questions at a public meeting where invited to speak regarding perceived effects of legislation so long as no “express urging.”
• A Board member may expend up to $50 of public money in the form of letters, phone calls, or other activities incidental to expressing his or her opinion on an issue.
• Elected officials may express a personal opinion on a ballot issue at any time and place, so long as the time and place does not indirectly constitute a contribution by the government or use of government resources.
• Government employees may endorse an election issue on his or her personal time. A Board member or government employee may expend personal funds, make personal contributions, or use personal time to urge an elector to vote in favor of or against an issue.
• A public entity may allow interested groups, both proponents and opponents of issues, to rent space and/or use facilities so long as the opportunity is provided even-handedly.

“Can’t Do’s”

• Public funds, facilities, supplies, equipment, bulk mail permits may not be expended or used by the public entity to urge a vote in favor of or against an issue, even when cost is reimbursed.
• A public entity may not allow others who are advocating a position on any issue to use these resources.
• No preferential treatment on scheduling or fees for use of governmental facilities is permitted.
• Public employees cannot work on a campaign during working hours and may not use public facilities or equipment for a campaign.
• A public entity may not require employees or other staff members to work on an election issue (other than preparation of a factual summary).
• A government may not contribute to other organizations or political committees that may be organized to raise any funds and make any expenditures concerning advocacy of an election issue.
• The government should not accept cash or other contributions from citizens for use by the government in connection with election.
• The government should not release names, addresses or phone numbers of employees, users of public utilities, public facilities, or recreational or cultural services which are owned and operated by the government.