campaigning on the clock and other special district election no-nos

Carolyn Steffl and Anne BensardMoses, Wittemyer, Harrison and Woodruff, P.C.

Campaigning on the Clock and Other Special District Election No-Nos

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 InitiativeIncludes 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 enforcementAlso 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 contributionsWhat you can spend on an election for

director positionWhen 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.

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.

Special Districts may not:

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

Question: A resident of the Districts calls to ask about the District’s position on a statewide ballot initiative. Can you answer the question?


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)


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?


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 printerTime 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)

Question: Can you express your personal opinion to your neighbor about a ballot initiative?


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)


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?


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 jurisdictionBUT 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 SummaryThe 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).

Question: Can the Board pass a resolution against a ballot initiative that would prevent the District from collecting any tax revenue to fund services?


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 measuresLinks to websites that were for and against ballot measuresLists of supporters and opponentsDisclaimer: 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 BlastsHOAs 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.

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.

Oops!

Resources

Secretary of State’s Colorado Campaign and Political Finance Manual http://www.sos.state.co.us/pubs/elections/

CampaignFinance/files/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?

campaigning on the clock and other special district election no-nos

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