Go
Back
SOME ANSWERS TO YOUR QUESTIONS
ABOUT ADVOCACY *
*excerpted from legal findings by the Munilaw
Research Center on behalf of the League of California Cities.
Advocacy laws for cities and community colleges are identical
in most instances. In nearly in every example below, we have
substituted the word "college" for "city."
It would be convenient if the legal boundaries were clear
in every context. Unfortunately, they are not. Many of these
issues have not been specifically addressed by either the
courts or legislature. As a result, the answers below are
based on what case law and statutory guidance are available.
In many instances, the answers represent a conservative approach
and there is room for debate on what is permissible.
LOBBYING ACTIVITIES
1. May colleges develop coalitions and partnerships with
local organizations (the chamber of commerce, unions, community
groups) for the purpose of communicating concern about proposed
legislation to state and federal legislators?
This is a common and effective way to communicate with legislators.
The key is always to bring the communication within the college's
authority to lobby the legislature and to avoid any appearance
that the college is attempting to exhort or persuade the electorate
(other than with fair presentation of facts [12] to adopt
the college's position.
2. May community colleges lobby the state and federal legislatures
concerning matters of interest to colleges and their students?
Yes, colleges have specific statutory authority to participate
in the legislative process at the state and federal levels.
[1] Colleges may lobby these levels of government either directly
or through a representative, such as the Community College
League of California. [2] However, various Fair Political
Practices Commission reporting requirements may apply. [3]
3. May college funds be used to make monetary contributions
to candidates who support a college views on issues?
No, there is no authority in California for a college or
an official from a college to use public funds in support
of a candidate who is supportive of the college's position.
In fact, the state penal code makes use of public resources
to attend political functions a crime. [4]
According to the California courts, allowing government to
"take sides" in election campaigns may give one
side an unfair advantage and distort the electoral process.
[5] Another concern is that those with governmental authority
may use official power improperly to perpetuate themselves,
or their allies, in office. [6]
Other questions relate to whether such support may run afoul
of the constitutional proscription against gifts of public
funds. [7] Also, using public resources to support a given
candidate may result in taxpayers' money being used to support
candidates with whom a taxpayer does not agree. This type
of "forced speech" may have First Amendment problems.
[8]
4. May a college provide "in kind" support to candidates
(for example, office supplies, telephone banks, college staff
time, etc.)?
No, the proscriptions against providing monetary support
for candidates also apply to use of college personnel, materials
and supplies. [9]
5. May community colleges organize a delegation to go to
the capital to present a message to a legislator?
Again, colleges are granted specific authority to directly
lobby the legislature. That means a college official or group
of college officials from one or more colleges may travel
to Sacramento or Washington D.C. to lobby (this includes students).
However, for reasons which are explained in detail below,
colleges should avoid using public funds to recruit private
citizens to join such a delegation.
HOW COLLEGES MAY PRESENT THEIR POSITION TO THE ELECTORATE
1. May colleges analyze the effect of state and federal proposed
legislation on colleges and make such information public?
Yes, colleges may use public resources to objectively evaluate
a proposal's impact on their college. [13] Providing voters
with relevant facts to aid them in reaching an informed judgment
is permissible as an appropriate government informational
activity. [14]
2. What is the difference between "information"
and "promotional" material?
There is no hard and fast rule for judging whether a communication
is "informational" rather than "promotional."
Generally, material which advocates a position is promotional."
[15] Informational material, on the other hand, presents a
"fair presentation of the facts." [16]
Some of the factors courts look at in determining whether
a publication if a "fair presentation of the facts"
are the publication's style, tenor, and timing. [17]
For example, a flier detailing the impact of proposed legislation
is information - a flier that calls for a specific vote by
the electorale is promotional.
3. May colleges urge their students and constituents to contact
their state and federal elected representatives to lobby on
behalf of the colleges' position?
The prudent course is not to spend public funds to specifically
urge citizens to contact their legislators. Although there
has been no published case which specifically rules on this
issue, there is language in one case which suggests colleges'
statutory authority to lobby legislative bodies is limited
to direct presentations to those bodies and does not include
authority to lobby the electorate. [18]
The key is the audience to which the college is directing
its message. If the college's message is directed at legislators,
the college's action is expressly permitted. [19] If the message
asks the electorate to contact their legislators, the courts
worry that the public agency is distorting the electoral or
legislative process. [20] (However, the Associated Student
Body Government has express legal right to lobby legislators
and seek support of the electorate, and they have a specific
budget for that purpose. Materials urging student or public
action should be produced by the ASBG at their expense and
can be distributed on campus when asked for by individuals.)
For the purpose of this analysis, employees of the district
are not members of the public. Thus, you may distribute email
and written communications to employees discussing legislative
issues and encourage them to assist the college in communicating
its position. But do not advise the public how to vote.
4. Can faculty encourage students to support the college
position during class time?
Faculty can answer questions and provide factual information
either verbally, or with materials prepared by the college,
to explain the potential impact of the proposed legislation.
Faculty and staff cannot seek to persuade students or the
public to contact legislators during college time. However,
they can make those advocacy efforts on their personal time.
If a student or individual asks how to contact legislators,
faculty and staff can distribute that information. It is best
if the information is prepared and printed by the ASBG.
5. Does it make any difference what medium the college uses
to present its message?
Yes, it seems to. Some kinds of media tend to be less "informational"
and more "promotional." The California Supreme Court
has indicated that use of public funds to purchase such items
as bumper stickers, posters, advertising "floats"
or television and radio "spots" constitutes improper
campaign. [21]
This reason appears to be that these kinds of media involve
limited amounts of space or time. As a result, it can be more
difficult to argue the message represents the necessary fair
presentation of the facts. Also, these kinds of communications
media tend to be aimed more at the electorate than legislators.
Thus it is advisable to avoid using public monies to purchase
these kinds of communications media to advocate a particular
position on legislative issues within colleges.
MEDIA ACTIVITIES AND EVENTS
1. May college officials meet with the editorial board of
any media (newspaper, radio, TV) to explain the college's
position on proposed legislation?
Such meetings, if properly approached, should not involve
legal problems for two reasons. First, these kinds of meetings
usually do not involve the expenditure of public funds. Use
of the media is an effective way for college officials to
communicate with the electorate. Therefore college officials
should be cautious with how they frame their position if they
spend public funds. The best approach is to keep to an objective
and fair presentation about the impact of proposed legislation
on the college. Second, a newspaper editorial which runs as
the result of such a meeting is more likely to influence how
a legislator or other official acts on a particular proposal
and not whether voters decide to lobby the legislature in
support of the college's position. Because of this and because
of media serves as an objective evaluator of the information,
there is little risk the college's activities will distort
either public debate or the legislative process. [25]
However, like many of the issues which arise in this area,
this is a topic which has not specifically been addressed
by a court. As a result, the prudent course is for colleges
to do what they ordinarily would do, which is to keep the
focus of any such editorial board meeting on providing objective,
factual information about the impact of the proposed legislation
on the college.
2. If a college official is interviewed by a member of the
media, may that official urge the electorate to lobby their
legislators regarding particular proposed legislation?
College officials may and should respond to questions from
the media concerning a college's position on proposed legislation.
The reason such a response is not likely to cause legal problems
is twofold. First, the response is just that: a response to
an inquiry. Courts are more supportive of public agency communications
when they occur in response to inquiries as opposed to being
initiated by the agency. [26] Second, an individual's comments
in response to media questions are unlikely to involve a significant
expenditure of public resources (if it involves any) and plays
a positive role in adding to the so-called "marketplace
of ideas." [27]
3. May college officials hold press conferences and distribute
press releases to present the college's position to the media
on some proposed legislation?
To be safe, the message at the press conference and in the
press release should not involve urging the public to lobby
the legislature, unless no public resources have been used
to set up the press conference or distribute the press release
(for example, postage and facsimile costs, college staff time,
copy machines, etc.).
4. May a college official, or his or her staff, publish an
article (for example, an
op-ed piece or letter to the editor) advocating a position
with respect to particular proposed legislation?
Such an effort should be permissible if there is no expenditure
of public funds which advocates only one side of an issue.
Courts tend to perceive such support for one side as unfair
to taxpayers who hold opposing opinions. [28]
The courts are careful to balance a public employee's or
official's constitutionally protected right of free speech
against the danger of distorting the democratic process. It
appears that the limit on a college is not in expressing its
position to the public, [29] but rather on the use of public
funds to express that opinion. [30]
REGULATORY REQUIREMENTS RELATING TO LOBBYING ACTIVITIES
1. Are college employees who lobby the legislature required
to file reports with the Fair Political Practices Commission?
Individual employees of the college or members of the college
board of trustees, if acting in their official capacities,
are not required to register as lobbyists or otherwise file
periodic reports with the FPPC. [32]
2. Are there any Fair Political Practices Commission regulations
concerning public information activities with respect to legislative
proposals?
Yes, Proposition 73's provisions on mass mailings [43] should
always be kept in mind whenever college produces communications.
Proposition 73 says that "[n]o newsletter or other mass
mailing may be sent at public expense." [44] A "mass
mailing" is over two hundred substantially similar pieces
of mail, but does not include a form letter or other mail
which is sent in response to an unsolicited inquiry. [45]
|
