Bond Election Laws & Ethics

JENNIFER CLARIDAY, HUCKABEE

Sources:1.Texas Ethics Commission, “A Short Guide To the Prohibition Against Using School District Resources for Political Advertising in Connection with an Election,” 9/01/032.Texas Ethics Commission, “POLITICAL ADVERTISING. What You Need To Know,”5/17/043.McCall, Parkhurst & Horton LLP, memo 9/29/2004

Background Information

This information only applies to the time period AFTER the Board of Trustees calls a bond election

Election Date: May 8, 2010 (must call election by March 8, 2010)

Until the election is called, full discussion and a certain amount of advocacy is allowable

This only applies to officers and employees of the District and not to all members of the BPC

1. WHAT ARE THE LAWS GOVERNING SCHOOL BOND ELECTIONS?

2. WHAT IS THE ROLE OF THE DISTRICT DURING A BOND ELECTION? WHAT CAN BE SAID? WHAT CAN

NOT BE SAID?

3. BOND ETHICS Q&A

4. WHY IS THIS IMPORTANT TO THE BPC?

Introduction

Section 255.003 of the Texas Election Code

Provides as follows:

a) An officer or employee of a political subdivision (School District) may not spend or authorize the spending of public funds for political advertising.

b) This section does not apply to a communication that factually describes the purposes of a measure if the communication does not advocate passage or defeat of the measure.

c) A person who violates this section commits an offense. An offense under this section is a Class A Misdemeanor.

Political Advertising Defined

Political Advertising is a communication that advocates a particular outcome in an election and includes statements made in writing or orally:

in a newspaper, magazine or other periodical; or,

is broadcast by radio or television; or,

appears in a pamphlet, circular, flier, billboard or other sign, bumper sticker or similar form of written communications;

email, posters and newsletters; or,

on an Internet website.

Advocacy Defined

Most employees and officers violate the ethics

laws by engaging in communication that is

considered advocacy.

Asking for support or rejection of a bond election

is advocacy and using statements such as "Vote

For X" and "Defeat Y" is also advocacy.

The Gray Area

However, one of the difficulties in understanding

what is or is not advocacy comes from the Texas

Ethics Commission's prior decisions where they have

indicated that communication can turn into

advocacy based on tone and emphasis of the

statements made.

For Example

“School X was originally designed for 500 students. Today, the enrollment at School X is 700 students. In two years, the enrollment at School X is projected to grow by another 100 students.”

“School X was originally designed for 500 students. Today, the enrollment at School X is 700 students. In two years, the enrollment at School X is projected to grow by another 100 students. Get the picture?”

Jarvis Johnson Case, 2007

Houston City Councilman –running for re-election

Used public funds to create and distribute a newsletter to constituents with his “accomplishments” as a City Councilman

Ethics Commission said: Newsletter includes 22 pictures of public officer. The area covered by pictures is almost 50 percent of the newsletter. The name of the public officer appears 22 times in print type that is bolded or larger than main text. In our opinion, when viewed as a whole, it constitutes political advertising.

Sworn Complaint-231180

Decatur ISD, 2003 - Information booklet created by the district that included a copy of a press release and other information about the bond

The press release quotes the school board president as saying “This bond is the right thing to do for the children of the community.”

“The circular advocates passage of the bond measure by stating that the ‘best solution’ to the school district needs would be to do exactly what the school district has proposed to do with the proceeds of the bonds.”

Sworn Complaint Process

Any individual may file a sworn complaint with the Texas Ethics Commission alleging a violation of certain laws.

A sworn complaint must be filed on a form prescribed by the Commission – starts the process.

Includes preliminary review and hearings

The Commission is authorized to undertake civil enforcement actions, hold enforcement hearings, issue orders, impose civil penalties and refer matters for criminal prosecution.

Examples of Violations

“Our citizens now have

the opportunity to

support GCISD

children. Please support

the vision - our future

depends on your

commitment.”

Using words like:

“Best Solution”

“Fantastic”

“State-of-the-Art”

“Countless benefits”

“Horrible shape”

“We must do something”

Examples of Violations

Or words like:

“Needs”

“Benefit”

“Important”

“Protect”

“Minimize”

“Upgrade”

Or slogans like:

“Our schools are in bad

shape.”

“We need the space for

growth.”

“It’s the right thing to do

for our kids.”

Reminder!

Any employee of the District can violate the Election Code, not just those in a position of leadership.

So what does this mean?

An employee or officer who uses any funds or resources of the District to engage in political advertising is in violation of the Texas Election Code.

District resources include use of the telephone, computers, copiers, facilities, etc.

The District may not purchase or authorize the purchase of new materials OR use EXISTING materials for use in creating or distributing political advertising

Also, it is not permissible to use the paid time of District employees to create or distribute political advertising. For example, staff may not copy, staple or distribute political advertising on work time.

What are the roles of the District?

The District is to provide factual information.

It is permissible to use District resources to produce

explanatory material about what is at stake in a measure

election.

Examples That Are Allowed

“The district is holding a bond election on May 8, 2010 which proposes to construct additions and renovate several campuses.”

“The proposed projects would have an impact on every school and facility.”

“Areas addressed include safety/security, renovation/repair of existing facilities, student and/or program growth, learning environment/instruction, use of technology, operations and co-curricular and extracurricular programs.”

Time for a Test!

HOW MUCH DO YOU KNOW ABOUT BOND ELECTION LAW AND ETHICS?

Note: PAC stands for Political Action Committee; these may have various forms and names

Question 1Question 1 Answer 1Answer 1

A teacher who is also a member of the Political Action Committee wants to know if she can talk about the Bond Election at work. What can she say if another employee or parent asks her about the election?

Teachers have the right to express their views when asked. However, they have to use common sense when doing so and be careful not to let their views turn into any type of staged campaigning.

The Test

Question 2Question 2 Answer 2Answer 2

A member of the PAC wants to place a flyer in teacher mailboxes advocating the passage of the bond. The PAC would send a volunteer to place the flyers in the mailboxes so no employee time would be used. Should you allow this?

No, you should not allow this to happen. Advocacy literature produced by proponents or opponents cannot be distributed or be available on property owned by the political subdivision, even if equal access is allowed to both sides.

The Test

Question 3Question 3 Answer 3Answer 3

There is a PTA meeting at one of our schools. The PTA President is a member of the PAC and would like to hand out flyers at the meeting urging other members to vote Yes for the bond. Should we allow this?

No. District resources may not be used to create and distribute political advertising. In this case, the school building is a District resource, operated and maintained by tax dollars.

The Test

Question 4Question 4 Answer 4Answer 4

The PTA President would like to place a “Vote Yes”ad in the PTA newsletter that is distributed to parents. Is this permissible?

Yes, so long as no District resources were used or District money spent to create or distribute the newsletter. THIS INCLUDES COPIERS.

The Test

Question 5Question 5 Answer 5Answer 5

A Vote No group has started a website against the bond. A District employee wants to log on and respond to the rumors with factual information using an anonymous name while on his work lunch break. Should you allow this?

NO! You should talk to the employee and make sure he understands he is violating the law by using a school-owned computer to make posts advocating the bond election and could be held personally liable.

The Test

Question 6Question 6 Answer 6Answer 6

One of our teachers is a member of the PAC, and she wants to send out a mass email from her District email account urging support of the bond issue. If she is at home during her free time when she sends out the email, is it ok?

No. The email account is funded by the District.

It is permissible to use her own personal email account, ex. Yahoo!, AOL, Gmail, etc.

The Test

Question 7Question 7 Answer 7Answer 7

If I decide to violate the Election Code, should I really care about receiving a Class A Misdemeanor? It’s such a small fine -- I think it’s worth it if it gets our District $100 million!

A Class A Misdemeanor is punishable by a civil fine of up to $5,000, or, for a sworn complaint deemed frivolous, up to $10,000.

Continued…

The Test

Answer 7 continuedAnswer 7 continued

If the violation was intentional or knowing, criminal charges, including bribery, coercion of public servant or voter, abuse of official capacity or official oppression, could be brought.

The Test

Question 7Question 7

If I decide to violate the Election Code, should I really care about receiving a Class A Misdemeanor? It’s such a small fine -- I think it’s worth it if it gets our District $100 million!

Answer 7 continuedAnswer 7 continued

Each of these violations is against the employee or officer committing the offense and not against the political subdivision.

The Test

Question 7Question 7

If I decide to violate the Election Code, should I really care about receiving a Class A Misdemeanor? It’s such a small fine -- I think it’s worth it if it gets our District $100 million!

Answer 7 Continued

We also urge you to consider the PR

ramifications of this action. A headline in the

paper that reads “School District Found in

Violation of Election Law” will surely hurt the

election rather than help it!

The Good News

ALTHOUGH YOU MAY NOT USE SCHOOL DISTRICT RESOURCES FOR

POLITICAL ADVERTISING, EMPLOYEES AND OFFICERS ARE FREE TO

CAMPAIGN FOR OR AGAINST A PROPOSITION ON THEIR OWN TIME

AND WITH THEIR OWN RESOURCES.

Why is this important to the BPC?

The District can only give the facts and allow voters to make their own informed decision

We can’t say: “We need these improvements” or “This bond issue is important for the future of our District”

However, citizens can organize and form a Political Action Committee in support of the election and get the word out!

What is a PAC?

A PAC is a group of people that accepts political contributions or makes political expenditures in support of a measure election

A PAC forms only after the election is formally called by the Board of Trustees

Legal requirements of a PAC include: electing a chairperson(s) and treasurer, filing paperwork with the Texas Ethics Commission, regular reporting of financial contributions/expenditures, and dissolving after the election

During the election, a PAC serves as the "advocacy" group

The PAC is allowed to do the things the district cannot do

Example of a PAC website

Example of a PAC website

Examples of Other PAC Materials

How to Form a PAC

The District can NOT help a PAC form

Political Action Committees should form by themselves. Usually these groups will form naturally through community involvement during the planning process. The Board should never take any action in regard to a group that will be participating in and paying for political advertising.

In Summary

Until a bond election is called by the Board of Trustees, officers and employees of GCISD may discuss and utilize a certain amount of advocacy regarding a bond election. Once a

bond election is called, officers and employees of GCISD may only disseminate factual

information.

For More Information

Texas Ethics Commission

800-325-8506

http://www.ethics.state.tx.us/

Texas Secretary of State

512-463-5600 (Administrative Offices)

http://www.sos.state.tx.us/

Texas Secretary of State Elections Division

800-252-8683

http://www.sos.state.tx.us/elections/index.shtml

Texas Election Code

http://www.capitol.state.tx.us/statutes/eltoc.html

Thank You!

QUESTIONS???