Salinas residents proposed an initiative measure that would reduce and eventually repeal the city’s utility users tax. The city council adopted a budget listing the facilities that would be closed and programs and services that would be eliminated if the measure passed. The city posted the council’s resolution, minutes and related matters on its website. It produced a document that briefly described the measure and listed each facility, program and service that would be affected by the measure, which it made available on its website and at public locations. The city also included similar contents in its quarterly newsletter, which it routinely mailed to residents. Proponents sued, claiming that expending public funds for these activities was prohibited.
The court first rejected the notion that only express advocacy for or against a measure is relevant. It recognized that Government Code section 54964 prohibits public expenditures for campaign activities if the public agency “expressly advocates” for or against a measure or candidate. It ruled, however, that section 54964 does not set forth the only prohibition against public expenditures in campaigns. The common law rule that precludes public expenditures for “campaign activities,” while allowing expenditures for “informational material,” still applies. The style, tenor and timing of the communications, as well as their content, may be relevant in applying this rule.
The proponents argued that the city’s communications were one-sided since they did not reflect the proponents’ claim that cuts to facilities, services and programs were not necessary. The court disagreed. An agency is not precluded from using public funds to evaluate or express an opinion on the merits of a ballot measure. “[I]n many circumstances a public entity inevitably will ‘take sides’ on a ballot measure and not be ‘neutral’ with respect to its adoption.”
The court held Salinas’ use of public funds was lawful, because: the information conveyed generally involved past and present facts, such as how the original tax was enacted, what proportion of the budget was produced by the tax, and how the city council had voted to modify the budget in the event the measure passed; the communications avoided argumentative or inflammatory rhetoric and did not urge voters to vote in a particular manner or take other actions in support of or in opposition to the measure; and the information provided and the manner in which it was disseminated were consistent with established practice regarding use of the website and regular circulation of the city’s official newsletter.
The court also made clear that these principles apply to all types of local ballot measures “whether it be a tax-cutting proposal, . . . a ‘slow growth’ zoning measure, . . . a school bond issue . . . or any other of the diverse local ballot measures that have been considered in California municipalities.”
Vargas v. City of Salinas, 2009 WL 1035257 (CA, 4/20/2009).
The opinion can be accessed at: http://www.courtinfo.ca.gov/opinions/documents/S140911.PDF
This abstract appears in the May 15, 2009 Land Use Alert from the Bingham Law Firm.
