The advisory opinion
Office of Campaign and Political Finance · from OCPF · released Mar 22, 1993 · 4 pages · 236 KB
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THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF CAMPAIGN & POLITICAL FINANCE
ONE ASHBURTON PLACE, ROOM 411
BOSTON, MASSACHUSETTS 02108
(617) 727-8352
(800) 462-OCPF
MARY F. McTIGUE
DIRECTOR
March 22, 1993
AO~-93-07
Ms. Elaine Powers
Town Clerk
175 Central Street, Box 387
E. Bridgewater, MA 02333-0387
Re: Use of School Resources for Political Purposes
Dear Ms. Powers:
This letter is in response to your October 27, 1992,
letter requesting an advisory opinion as to whether the People
For Better Schools ("PBS") may use the schools to distribute
certain literature. I apologize for the delay in my response.
In your letter you stated that the PBS is a sub-group of
the Educational Advisory Council ("Council"). The Council
gives the school committee updated reports monthly. In October
of 1992 a letter prepared by PBS was distributed to the
elementary grades with the permission of the Superintendent of
Schools. Returns were to be made to each child's teacher. The
letter was not sent out on school paper. In a subsequent
telephone conversation with this office's staff attorney,
Marissa Horowitz, you stated that, at the time of the
distribution, it was your understanding that PBS was attempting
to influence votes at the Town Meeting to get voters to vote in
favor of building a new school. You were requested by the
Executive Secretary to the Board of Selectmen of the Town of
East Bridgewater ("Town") to write the above referenced letter
due to complaints received by the Board of Selectmen concerning
distribution of this kind of letter through the schools.
You have asked whether it is legal to use the schools for
distribution of the PBS letter or other letters of this kind.
i.e., can the school system send letters home with the
children. Since the distribution of the PBS letter is a past
occurrence, I will not comment specifically on it's legality
but rather, as you requested, provide guidance regarding the
use of public resources in connection with campaign finance
activity.
Elaine Powers, Town Clerk
March 22, 1993
Page 2
The Massachusetts campaign finance law, M.G.L. c.55, as
well as specific case law, advisory opinions and interpretative
bulletins issued by the Office of Campaign and Political
Finance ("OCPF") prohibit the use of public resources to
influence a ballot question or the election of a candidate. See
Anderson v. City of Boston, 376 Mass. 178 (1978). In Anderson,
the Court reasoned that a municipality should not use public
funds to instruct the people, the ultimate authority, how they
should vote. Anderson further held that neither the services of
public employees nor the facilities of a municipality could be
used to influence a [ballot] question. In sum, public
resources, which include resources of a municipality and its
schools cannot be used for distrjbution of advocacy material
regarding questions on a ballot. It is OCPF's opinion that
the same prohibition holds true relative to the use of public
resources to support or oppose a candidate or particular class
of candidates.
Therefore, it is clear that a public school may not permit
its resources to help produce or distribute any flyer, brochure
or letter published by an organization which seeks to increase
the participation of a certain class of voters in order to
encourage those voters to support or oppose a particular
candidate, group of candidates or ballot question. This
prohibition would include permitting teachers and/or students
to be used, in effect, as a courier service to distribute such
information, which they may or may not agree with, in a manner
which uses school, e.g. public, resources. I note that
teachers and students are not prevented by the campaign finance
law from distributing political material on their own time.
However, such activity must comply not only with the disclosure
and equal access requirements of the campaign finance law but
also with other applicable laws and regulations governing
public schools and the conduct of teachers. In particular,
since your question may also raise questions under M.G.L.
c.268A, the conflict-of-interest law, you may wish to consult
with the State Ethics Commission.
1. Municipalities are further prohibited by other election laws
from distributing, to voters or a class of voters, even
purportedly "informational" voting material regarding a ballot
question unless expressly authorized by statute. See Elections
Divisions Memorandum, July, 26, 1991, a copy of which is
enclosed for your information.
Elaine Powers, Town Clerk
March 22, 1993
Page 3
There are two important points or, perhaps, exceptions to
the general prohibition against the use of public resources in
the context of this advisory opinion.
First, the campaign finance law does not prohibit public
resources from being used in connection with candidates elected
at, or issues which are debated in, an open forum such as a
town meeting.2 Even issues resolved at a town meeting by a
secret vgte have not been considered to be questions "on the
ballot". Therefore, any materials disseminated by a school in
anticipation of a town meeting, which, for example, solely
inform residents attending the meeting or which urge residents
to vote "yes" or "no" on a topic at the town meeting, do not
constitute advocacy or informational material seeking to
influence or affect "the vote on any question submitted to the
voters" (as that phrase is used in section 1 of M.G.L. c.55).
See AO-88-23, AO-89-05, AO-89-12 and AO-89-32.
Second, the Anderson Court has indicated that if equal
representation and access were given to each side on a ballot
question, the use of some government resources could be
permitted. Consistent with the Court's reasoning, OCPF has
advised that areas within public buildings which are generally
accessible to the public, such as auditoriums as opposed to
individual offices, may be used by the opponents and the
proponents of an initiative petition provided each side is
given equal representation and access to such areas. Such a
rule would hold true for candidate activities as well. In
addition, OCPF has advised that candidates and proponents and
opponents of ballot questions may be offered the use of certain
public services if each side is provided the same opportunity.
2. Because the expenditure of municipal funds is governed by
other laws and regulations administered and enforced by the
Department of Revenue's Division of Local Services, you should
consult with town counsel or the Division of Local Services.
See M.G.L. c.40, s.5 et seq.
3. As a general rule, a question submitted to the voters must
actually appear on the ballot in order for the provisions of
M.G.L. ¢c.55, the campaign finance law, to apply. However, if
materials are printed and distributed in contemplation of a
ballot question or a candidate's election, then the provisions
of M.G.L. c.55 are fully applicable if such materials 1)
advocate opposition to or support of a question or candidate
and 2) that question or candidate subsequently actually appears
on the ballot.
Elaine Powers, Town Clerk
March 22, 1993
Page 4
See AO-88-27 (city may offer mailing labels to candidates if
all candidates are given same opportunity and purchase price
reflected city's cost), AO-89-28 (candidates may use city
council chamber to announce campaign if all candidates are
given same opportunity and reimburse city for out-of pocket
costs), AO-90-02 (public, but not private, areas within public
buildings maybe used by opponents and proponents of initiative
petition provided equal access and opportunity is given).
Finally, I note that any group of persons soliciting
and/or receiving contributions of money or other things or
value and/or making expenditures to support or oppose either a
ballot question or a candidate or group of candidates must
organize as a political committee with the city or town clerk
if the purpose of the political committee is limited to local
elections. See M.G.L. c.55, s.1. For your information on this
point, I have enclosed a copy of OCPF's campaign finance guides
relative to municipal candidates and ballot questions.
This opinion has been rendered solely on the basis of the
representations made in your letter as well as telephone
conversations with this office's legal counsel and solely in
the context of M.G.L. c.55.
Please do not hesitate to contact this office should you
have additional questions about this or any other campaign
finance matter.
Very truly yours,
Director
cc: ‘Andrew B. Crane, Executive Director
. State Ethics Commission
Harry Grossman, Esq.
Division of Local Services