Transcript Campaigning on the Clock and other Special District

Campaigning on the Clock and Other Special
District Election No-Nos
Carolyn Steffl and Anne Bensard
Moses, Wittemyer, Harrison and Woodruff, P.C.
Why care about election rules?
 Your District needs money – under TABOR, voters need to okay
debt & taxes.
 A ballot initiative will affect your District.
 There is a ballot issue that you personally want to support or
oppose.
 As a Director, you are running for re-election.
 You (or another Director) face a recall election!
Campaign / Financing Law
 Colorado Constitution, Article 28: Campaign and Political
Finance.
 2002 Ballot Initiative
 Includes limits on campaign contributions, spending limits, disclosure
requirements, and enforcement
 Fair Campaign Practices Act, §1-45-101, et seq., C.R.S.
 Addresses campaign contributions, spending limits, disclosure requirements,
and enforcement
 Also contains prohibition on political subdivisions
spending public money on electioneering
Focus of this Presentation
 What special districts and directors can and cannot do to
support / oppose ballot initiatives or candidates for office.
 NOT COVERED:
 When you can accept campaign contributions
 What you can spend on an election for director position
 When you need to disclose contributions / expenditures
General Rule:
 Special Districts may not expend public funds to support / oppose
a ballot issue or a candidate for political office.
 There are limited exceptions that we will talk about here.
Special Districts may not:
 Make contributions in campaigns involving the nomination, retention, or
election of any person to public office;
 Make donations to any other person for the purpose of making a
campaign contribution;
Special Districts may not:
 Expend money from any source or make any contributions to
urge electors to vote for or against:
 Statewide ballot initiatives (constitutional amendments or statutes),
 Local ballot initiatives, such as municipal ordinances,
 Referred measures by the General Assembly or a political subdivision,
 Measures for recall of any officer.
When do the Rules Kick-in?
 For state ballot issues, when the Secretary of State determines
that the signature petition is valid and the ballot title and
submission clause set by the Title Board is placed on the ballot.
 In special district elections, when the Board adopts a resolution
calling for the election and setting the ballot title.
A Day in the District
A Day in the District
 Question: A resident of the Districts calls to ask about the District’s
position on a statewide ballot initiative. Can you answer the question?
A Day in the District
 Answer:Yes. A member or employee of the district may respond to
questions about candidates, ballot initiatives, or measures for recall of
officers as long as the member, employee, or district has not solicited the
question.
 You can answer questions about how the issue will affect your department.
× WARNING: Do not urge the person to vote yes or no on the candidate or issue.
 CRS § 1-45-117(1)(a)(II)
A Day in the District
 Question: As an elected official of a special district, can you
send out a letter or press release expressing your personal
opinion to residents of the District on a ballot initiative?
A Day in the District
 Answer:Yes, without spending more than $50 of District money.
 A member or employee of the special district with policy-making responsibilities
may expend up to $50 of public money in the form of letters, telephone calls, or
other activities incidental to expressing his or her opinion on the above issues.
× WARNINGS:
×
×
×
×
This includes in-kind staff time, including your own time while at work.
$50 exceptions may not be combined.
$50 is the total for the entire election.
Exception does not apply to contributions to candidate campaigns.
 CRS §1-45-117(1)(a)(II)
 Colorado Common Cause v. Coffman, 85 P.3d 551 (Colo. App. 2003), aff’d 102 P.3d 999
(Colo. 2004).
What is included in the $50 limit?
 In a word, everything.
 Stamps, paper, ink cartridges for printer
 Time of any employee spent making copies, stuffing envelopes, etc. on the
job
 WARNING: Be very cautious and don’t rely on the $50 exception.
 Money paid after the ballot issue has been certified
counts, even if the cost was incurred before
certification.
 Skruch v. Highlands Ranch Metropolitan Districts Nos. 3 and 4, 107 P.3d 1140 (Colo.
App. 2004)
A Day in the District
 Question: Can you express your personal opinion to
your neighbor about a ballot initiative?
A Day in the District
 Answer:Yes, elected officials may express personal opinions on any
issue.
 CRS § 1-45-117(1)(b)(II)
 Answer:Yes, members and employees may expend personal funds,
make contributions, or use personal time to urge electors to vote in
favor of or against any candidate or issue.
 Ok to post opinions or pictures of your yard signs on your personal
Facebook, Twitter, Instagram, or blogs.
 CRS § 1-45-117(1)(b)(III)(C)
A Day in the District
 Question: A ballot initiative would prevent the District
from collecting any tax revenue to fund services. Can
the District send out a bill stuffer opposing the
initiative?
A Day in the District
Answer: No. But, the District may expend public
money or make contributions to dispense a factual
summary on any issue of official concern before the
electorate.
 CRS §1-45-117(1)(b)(I)
Issue of official concern
 What is an issue of official concern?
 As a threshold, the issue must appear on an election ballot in the
jurisdiction
 BUT it must also relate to the official powers and duties of the special
district.
 Mountain States Legal Found. v. Denver Sch. Dist. No. 1, 459 F. Supp. 357,
359 (D. Colo. 1978)
 Consult your attorney, if you are unsure
Factual Summary
 The summary must include arguments for and against the proposal.
 It may not include a conclusion or opinion in favor of or against the
issue or urge a specific vote.
 WARNING: You may still be in violation even if you don’t explicitly say
“Vote Yes” or “Vote No”.
 It may encourage voting in general.
 Case No. OS 2003-005 (Complaint of Doug Bruce against Colorado
Springs).
A Day in the District
 Question: Can the Board pass a resolution against a
ballot initiative that would prevent the District from
collecting any tax revenue to fund services?
A Day in the District
 Answer:Yes, the Board may pass a resolution or take a position of
advocacy on any issue of public concern.
 CRS § 1-45-117(1)(b)(III)(A)
 The Board may even report the passage of the resolution or
distribute the resolution through established, customary means by
which information about other proceedings is regularly provided
to the public.
 CRS § 1-45-117(1)(b)(III)(B)
You made it through the day!
A Note about TABOR Elections
 Your District is holding a TABOR election. What can you
do?
 Before FCPA kicks-in:
 You can create materials and disseminate them to your constituents about
the project. Make sure they are paid for before the FCPA is triggered.
A Note about TABOR Elections
 After the FCPA kicks-in:
 The District may not advocate for or against the TABOR
question.
 The District can send out neutral fact sheets, with pros and
cons.
 Citizens can create a ballot committee to take the lead on
campaigning for the initiative.
× WARNING: The District cannot coordinate with or control a
ballot committee.
Current Statewide Ballot Initiatives
 On the 2014 Ballot (as of 9/8/2014):
 Amendment 67: Definition of a Person and Child.
 Amendment 68: Horse Racetrack Limited Gaming Proceeds for K-12
Education.
 Proposition 104: School Board Open Meetings.
 Proposition 105: Labeling Genetically Modified Food.
 Examples from campaigns against Amendments 60 and 61 and
Proposition 101 (2010) aka the Ugly Three.
 Local governments uploaded factual summaries to their websites that
included:
 A summary of arguments both for and against ballot measures
 Links to websites that were for and against ballot measures
 Lists of supporters and opponents
 Disclaimer: This web page is intended to present a factual summary of Amendments 60 and
61 and Proposition 101 and is not intended to urge electors to vote for or against ballot
issue or ballot measures
 Example: http://www.today.colostate.edu/story.aspx?id=4562
 Examples from campaigns against Amendments 60 and 61 and
Proposition 101 (2010).
 Districts passed resolutions individually.
 E.g,, Widefield Water and Sanitation District, Smoky Hill Metropolitan District, Las Animas-Bent
County Library District.
 Districts passed joint resolutions with other entities.
 E.g., Joint Resolution by Town of Telluride, Town of Mountain Village, San Miguel County, Town
of Norwood, San Miguel County Public Library District No. 1, Telluride Hospital District,
Telluride School District, Telluride Fire District.
 Douglas County created a multi-jurisdictional reference guide
for use by its employees and the community.
 No opinion was expressed, but it provided information on the initiatives.
 Posted on its website.
 Used by local media.
 Districts conducted analyses of service impacts from the
amendments.
 Analyses included impact on tax collections, general fund budget, the ability to obtain financing
in the future, and loss of services (e.g. parks).
 E.g., Wheat Ridge Water and Sanitation District, Eagle River Water and Sanitation District,
Upper Eagle Regional Water Authority
 Don’t forget that the SDA is your lobbying partner.
 Citizens, Directors, or Employees on private time can:
 Create flyers (without using District funds or equipment).
 Distribute or post yard signs.
 Organize an Issue Committee or Candidate Committee which can
expend funds.
 Email Blasts
 HOAs or other community groups can send email blasts.
 District emails should not advocate for one position, but could encourage voting in a
neutral manner.
 Work with the Media
 Districts interviewed by reporters about impact of measures:
 If the amendments pass, "it will kill us," said Chris McKay, chairman of the Smoky Hill Metro
District board. "We're basically operating with one main employee and three seasonal
workers."
 http://www.denverpost.com/ci_16300121
 Write a letter to the Editor or submit an op-ed
 Talk to people!
 Board members of the Cherry Creek School District attended back-to-school nights, school
accountability meetings, and parent council meetings
 Talk to your neighbors and HOAs
 Talk to your friends and family
 Talk to strangers on the street
Oops!
 You’ve violated the FCPA. What do you do?
 Answer:You may be required to reimburse the fund from which the
money was diverted for the amount of the inappropriate contribution
or expenditure.
 Answer:You may have a restraining order entered against you to
enjoin the continuation of the violation.
 Answer:You may be subject to an injunction.
Oops!
 Violations are enforced by filing a written complaint with the
Secretary of State within 180 days of the violation.
 The complaint is referred to an administrative law judge, who holds a
hearing within 15 days.
 A judge can impose any appropriate order, sanction, or relief.
 Appeals can be made to the Colorado Court of Appeals
 See, Colorado Constitution, Article XXVIII, Sec. 9(2)(a) and Sec. 10; Secretary of State Rule
18.4.
Oops!
 Personal Liability:
 Employees and officials may be liable for a civil penalty of at least double and up to five
times the amount contributed / spent unlawfully.
 District Liability:
 District may be subject to civil penalty or sanctions.
 Negative Press!
 When in doubt, don’t spend the money.
Resources
 Secretary of State’s Colorado Campaign and Political Finance
Manual
 http://www.sos.state.co.us/pubs/elections/CampaignFinance/file
s/CPFManual.pdf
 Special District Association, Proposition 101, Amendments 60 and 61
Presentation (09/30/2010)
 https://www.google.com/webhp?sourceid=chrome-
instant&ion=1&espv=2&ie=UTF-8#
Questions?