Limits on the Use of City College Resources in Campaigns City College of San Francisco | July 2012

The General Prohibition Public funds may not be used to expressly campaign for or against ballot measures or for or against a particular candidate

Statutory Prohibitions  Education Code Section 7054:  No community college district funds, services, supplies, or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate, including, but not limited to, any candidate for election to the governing board of the district.  Government Code section 8314:  It is unlawful for any elected state or local officer, including any state or local appointee, employee, or consultant, to use or permit others to use public resources for a campaign activity

District Policy 1.06  Incorporates the restrictions of the Education Code and the Government Code listed above, as well as prohibitions from the Political Reform Act and the San Francisco Campaign Finance and Governmental Conduct Code  Imposes reporting and auditing requirements on the District

Pitfalls  California Law and Board Policy:  Expressly prohibit the use of “Funds, Services, Supplies & Equipment” in support of a campaign  Puts restrictions on appropriate “Campaign Activity”

“Funds, Services, Supplies & Equipment”  Not defined, but includes any property or asset owned by the District  Government Code section 8314 lists:  Land  Buildings  Facilities  Funds  Equipment  Supplies  Telephones  Computers  Vehicles  Travel  Employee time

“Campaign Activity”  Ill- defined.  Even California's Supreme Court admits that there is no hard- and-fast rule for determining whether public action is a "campaign activity.“  “It is not essential that a [public message] expressly exhort to the voters to vote one way or another" to be considered improper campaigning.  Courts take a “we know it when we see it” approach.

Most Recent Guidance  Vargas v. City of Salinas  Citizen mounts campaign to repeal City's Utility User Tax, from which City received significant portion of its revenue  City staff produced reports, published on City's webpage along with proponent's materials, detailing programs that would close if measure passed  City also produced a flyer detailing required cutbacks, and included material in its regular newsletter to citizens, which reached voters in month before election  The Court concluded that the City’s activities were not impermissible, and clarified which acts are permissible, impermissible, or subject to consideration based on Style, Tenor, and Timing

Impermissible Activities under Vargas  Using any public resources to:  Mount a campaign  Expressly advocate for a particular vote or unambiguously urge a particular result  Contribute to a campaign, financially or otherwise

Prohibited Activities Include…  Using District mail or its system for mass distribution of campaign literature, or other material advocating the passage or defeat of a ballot measure, or election or defeat of a candidate  Using District copy-machines or printers to produce campaign literature, or other material  Using District phones or other District-owned communication devices, or the District-owned computers, to advocate for or against a ballot measure or candidate  Advocating for the passage or defeat of a ballot measure, or election or defeat of a candidate during instruction  Using District funds to support a campaign  Transferring District funds to a 3 rd party for that party’s campaign activities  Accepting campaign contributions from potential contractors (from time request for bid is made until 180 after contract is executed)

Permissible Activities  Providing neutral, balanced information to inform electorate of consequences  Supporting ballot measures through Board resolutions  Paying for statements of all Trustee candidates  Permitting use of faculty/staff mailboxes for third-party distribution of political fliers  Including neutral information about election in regularly- distributed, multi-topic newsletters  Voter registration drives

When to be Concerned: Classic Forms of Campaign Activities  Under Vargas, communications using District resources are probably prohibited if they take the form of classic campaign advertisement, such as:  Bumper stickers  Posters  Billboard/yard sign advertising  Radio/TV "spots"  Campaign literature for an individual candidate

When to be Concerned: Tenor and Timing  Under Vargas, communications using District resources are more likely to be impermissible if the answer to the following questions is “yes”  Does the material expressly advocate for a measure or candidate, or unambiguously urge a particular result?  Is the message presented near the date of the election?

Four Best Practicesfor Permissible Campaign Activity  Use personal phone and personal  Do not use District computers, land-lines, or mobile devices for which you receive a stipend  Conduct all campaign activity during personal time; if you receive a call at work, return the call when not on work time  When providing impartial information, do not enter into debate or discussion of the merits of any issues  Report of any inappropriate campaign activity by a District agent to the General Counsel or to a District Administrator

Ask Before You Act

Consequences  Personal liability:  Financial penalties up to $1, 000 per day the violation occurs, plus three times the cost of the misused resource  Criminal penalties range from 6 months to four years in jail  No statutes of limitation apply to misuse of public funds

What About the First Amendment? All elected officials, officers, employees, consultants, students, and faculty have the right to engage in political activities. The Education Code clearly protects this right, but only to the extent that the expressive activity does not violate the prohibitions against the use of District Resources

Political Expression  Trustees, Administrators, and Employees MAY:  Engage in personal campaign activities  “Personal” means not during work time. Individuals may wish to engage in campaign activity during their personal time, including lunch time and coffee breaks, and vacation days. Except with respect to activities within public fora, individuals should engage in personal campaign activities off District property  Contribute personal funds to a campaign  Identifying position as Trustee, administrator, employee, or faculty in endorsement, as long as it is clear that title is for identification purposes only

QUESTIONS?

You may contact the General Counsel Scott Dickey