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LTC 217-2009 SB 216 - Restrictions on Local Government, Local Elected Officials, and Local Government Employee Expressions in Issue ElectionsC':. ~: +~1Cfl ~, - - m ,^,;,ti1~A1V11 BEtiCH ~~~~~U~,I3 r.~, ~: ~8 OFFICE OF TI IE CITY fvtANAGER - i ~ NO.LTC# 217-2009 LETTER TO COMMISSION TO Mayor Matti H. Bower and Members of the City C m o m ission FROM: Jorge M. Gonzalez, J ~ - City Manager.. Lr~' ~ ( TC~ DATE August 12, 2009 sus~ECr SB 216 -Restrictions on Local Government, Local Elected Officials, and Local Government Employee Expressions in Issue Elections Attached for your perusal is a Memorandum distributed by Kraig A. Conn, Legislative Counsel, Florida League of Cities, Inc., staling that in the 2009 legislative session, the Florida Legislature passed SB 216 relating to restrictions on local government expressions in issue elections. The bill was approved by the Governor and has been assigned Chapter Law Number 2009-125. SB 216 is referred to as "the new law" in the attached document. "The now low' is effective on July l , 2009. JMG/REP Cc: Jose Smith, City Attorney Hilda Fernandez, Assistant City Manager Tim Hemstreet, Assistant City Manager Robert Middaugh, Assistant City Manager r:\CICk\C CiVOkMS\S9 215 - keatrioiion or Expressincs in bsee Pa^iions.hc.Joc `~pOU~? Qp,cUKA~~` CL i~,N -_q - ~ _ 'R n v. ~ a Memorandum TO: Florida Municipal Attorney Association Conferees FROM: Kraig A. Conn, Legislaiive Counsel RE: SB 21G - Restrictions on Local Goventment, Local Elected Official, and Local Government Employee Expressions in Issue Elections DATE: July 1G, 2009 In the 2009 legislative session, the Florida Legislature passed SB 21G relating to restrictions on local government expressions in issue elections. The bill was approved by the Governor and has been assigned Chapter Law Ntnnber 2009-125 (copy attached). SB 21G is referred to as "the new law" in this paper. The new law is effective on July 1, 2009. Under the new law, a local govemment, local elected official, local govenunent employee, or person acting on their behalf wuld, to one degr~x; or another, be prohibited or restricted from taking an advocacy position on a multitude of ballot issues, ineluditig but not limited to: local option sales taxes or bond referenda to provide essential infrastructure or community services (roads, parks, schools, sewers, courthouses, jails, health care, cteJ; land use and comprehensive planning activities (local or state "hometown democracy" type proposals); or proposed state constitutional amendments. The new law does not apply to the stato, state elected officials, or state employees. Attached is a summary of the new law, which attempts to provide a basic understanding of the law's standards, the process for alleged violations, and potential criminal and civil penalties for violations. How the new faw is interpreted and implemented will rest primarily with the enforcement entities: the Florida Elections Commission and local state attorneys. The s~tandazds imposed by the new law, and restrictions on statements or activities of local governments, local elected officials, local govemment employees, and persons acting on their behalf, are vague and subject to interpretation. 301 South Bronough Street ~ Post Offrce Box 1757 ~ Tallahassee, FL 32302-1757 Telephone (850) 222-9684 ~ Suncom 278-5331 • Fax (850) 222-3806 ~ Website:www.flcities.com tinderstandiug the New Law SB 216 amends the Florida Elecfions Code by creating section 106.113, Florida Statutes. Chapter ] 06 of the Florida Elections Code focuses on campaign financing. In general, the new law prohibits a local government, or any person on the local government's behalf, from spending public funds to advocate for the passage or defeat of any issue, referendum, or amendment going to a public vote. Because the new law is in Chapter 106. Florida Statutes, any alleged violation falls under the jurisdiction of either the filorida Elections Commission or the local stair attorney. The new law defines "local government" as a county, municipality, school district or other political subdivision in the state, along with any entity, such as a department, boazd, commission: or authority, of a county, municipality, school district, or other political subdivision. This defnition appears to be broad enough to include citizen advisory boards and other "volunteer" boards such as local planning agencies, code enforcement boazds, and economic development boards. "Public funds" is defined as all monies under the jurisdiction or control of the local government. This definition appears to include any amount of money, even a few dollars, if the money is under a local government's control. This defurition also appears to include any amount of money used to pay for typical local government expenses, such ac computers, printers, paper, copiers, telephone service, utility service, employee salaries, or just about any other item provided or expense;incurred by a local government. In-kind services provided by a local government to another person or entity, such as copying or postage, may also meet Phis definition. The new law prohibits a local government or a person acting on behalf of a local govcmmeat from expending or authorizing the expenditure of public funds fora "political advertisement" or "electioneering communication" concerning an issue, referendum, or amendment Urat is subject to a vote of the electors. The new law also prohibits a person or group from accepting public funds for one of these restricted expendiluxes. The new taw specifically states that no public funds may be expended regarding any "state question," such as a proposed aznendment to the Florida Constitution. The Florida Elections Code defines a "political advertisement" and an "electioneering communication." "Political advertisement" means a paid expression in any communications media, such as radio, television, newspaper, magazine, lntemet, outdoor advertising, campaign lilenture, direct mail, display or otherwise, ocher than the spoken word in direct conversation, which expressly advocates the approval or rejection of an issue. Sex;Gun 106.011(17), Florida Statutes. By definition, "political advertisement° means a paid expression in any form other than a direct verbal conversation, which expressly advocates a position on a ballot issue, whether in support or opposition. "fhere m•e n.•rrrowly drawn exceptions fora "political advertisement," none of which likely would ever apply to the prohibitions in the new law. r "Electioneering communicaiion" means a paid expression in any communications media (examples noted above under "political advertisement") by means other than the spoken word in direct conversation, which contains a clear reference indicating that an issue is to be votexl on at an electiun, without expressly advocating for the passage or defeat of the issue. A communication bewmes an "electioneering communication" when the issue is designated a ballot position or 120 days before the date of the election on the issue, whichever occurs first. Section 106.011(18), Florida Statutes. By definition, "electioneering communication" means a paid expression in any form other than a direct verbal conversation, which references a ballot issue but does not expressly advocate for the passage or defeat of the issue. There are narrowly drawn exceptions for an "electioneering communication," some of which could apply in very limited circumstances to the prohibitions in the new law. Z ` A "political advertix;menY' does not include a statement by an organization, in cxist~ce prior to the time an issue is placed on the ballot for an election, in support of or opposition to the issue, in that organization's newsletter, which newsletter is distributed only to the members of the organization. Also excluded is an editorial endorsement by any newspaper, radio, or television station, or other recognized news medium. ' An "clecticneering communication" does not include a statement or depiction by an organization, in existence prior to the time an issue identilied is placed on the ballot for election, made in the organization's newsletter, which newsletter is distributed only to members of the organizatiou. Also excluded is an editorial endorsement, news story, commentary, or editorial by any newspaper, radio, television station, or other recognized news media. Additionally, an "electioneering connnunication" does not include a commrrnirxGon that wnstitu[es a public An important factor in determining if a particular statement or activity is a "political advertisement" or an "electioneering communication" is whether fne statement or activity is a "paid expression." There does not appear to bt: any guidance from the Elections Commission or otherwise as to what is a "paid expression." For instance, if a mayor submits an article to a magazine on a pending ballot issue, will that be determined to be a "paid expression"? Moreover, if a city pays a cable company to broadcast the meeting of its governing body and the governing body discusses the merits of a pending ballot issue, will that be determined to be a "paid expression"? Likewise, if a city's staff compiles a paper on the impact a pending ballot issue will have on the city and the city posts the paper on its Internet site, will that be determined m be a "paid expression"? The Elections Commission and state Division of Elections have provided very little formal guidance on the application of laws governing political advertisements or electioneering communications. This in turn makes it very difficult to provide concrete guidance on the prohibitions contained in the new law. Moreover, a federal district court luu entered a permanent injunction enjoining the Elections Commission frotn enforcing Florida's electioneering communications laws on the grounds they aze unconstitutional, Broward Coalition of Condominiums homeowners Associations and Community Qrganizations, Inc. v. Browning, Case No.: 4:08cv445-SPM/WCS (United States District Court, Northern District of Florida, May 22, 2009). The Order was not appealed; however, the provisions of the new law were not specifically referenced in the Order. The new law creates several exceptions; however, the exceptions compound fire vagueness of the new law and lend the new law to mul*iple interpretations. The new law states the prohibition on using public funds does not apply to an electioneering communication from a local government or a person acting on behalf of a local government that debate or fonun that includes one advocate and one opponent of an issue, or a communication that solely promotes such a debate; or fonun and is made by or on behalf of the person sponsoring the debate or forum, provided the entity holdinK the debate or fonnn meets set criteria. 4 is limited to "factual information." Thus, the new law appears to allow public funds to be used to provide a paid expression in any communications media on a ballot issue as long as the information is factual in nature, and does not advocate for the passage or defeat of the issue. The question whether information is "factual" is critical to this exception, and appears to be left to either the state attorney or the Elections Commission. One need only consider the typical referenda issues to understand how nuanced the phrase "factual information" might be in application. For example, is a statement that a proposed pemry sales tax increase for roadway improvements will "improve the quality of life in City A" factual or not? Or that a penny sales tax increase for green space acquisition will "help protect the environment"? Or that a bond issue to build a new jail will "protect public safety"? What about a statement that a proposed state constitutiana] amendment on "Hometown Democracy" will "cost taxpayers money"? Or that a county charter amendment proposing to cap property taxes will bring "tax relief'? If in any of these examples the statement is detemvned to be anon-factual electioneering communication and public fwrds have been used to make the communication, a violation of the new law may have occurred. Moreover, what if statements made prior to an election turn out lA be wrong after the election for unforeseen circumstances? For example, a city's elceGoneering communication contains a statement that a penny local option sales tax will fund three new roads, and two years later, due to inflation, only two new roads are built. Will public officials and employees be vulnerable to "after-the-fact" challenges when things don't go as planned? To fwther complicate matters, the new law provides: "With the exception of the prohibitions specified in subsection (2) (the prohibitions on using public funds for a political advertisement or an electioneering communication on a ballot issue, except an electioneering communication limited to factual information), this section does not preclude an elected official of the local govetnmcnt from expressing an opinion on any issue at any time." Note that this exception applies to only local elected officials, not to local goverrunent employees or other persons acting on thew behalf. It is not known how this exception will be construed. The exception appears to say that a local elected official may express his or her opinion or advocate on any issue comung before the voters; however, if the opinion or advocacy meets the definition of being a "politcal advertisement" or an "electioneering communication," except an electioneering commmtication limited to factual information, absolutely no public funds could have been used by the local elected official in the development or dissemination of that opinion or advocacy. As a practical matter, this exception may be difficult to implement. For example, public funds are used in the operation of all activities of city hall, including: computers, printers, copiers, paper, telephones, utilities, salaries and every other item or service city hall provides. Assuming that a city elected official's particular opinion or advocation on a ballot issue meets the tlcfmition of being a "political advertisemcni" or an "electioneering conununucttGon" (except an electioneering communication limited to factual information), the new law would prohibit the elected official from using a computer at city hall, a printer at city hall, a copy machine at city hall, or any other service at city hall, which is paid for with public funds, to develop or disseminate the opinion or advoe:ation. Moreover, implementing the exception may he difficult because of the frequent use of public records, generated with public funds, to advocate for or against ballot issues. Would the new law be violated if a city elected official copies and distributes at his own expense a "factual" county report, which was obtained under the open public records law but county public funds were used to generate the report, and in the distribution the elected official advocates for the defeat of an issue? What if the city elected official places a copy of a city "factual" report on the official's own persorzl Internet Web site and, on the Web site, the official advocates on behalf of the ballot issue covered in the report? Analyzing Statements or Activities When trying to determine if a particular statement or activity on a ballot issue by a local government, local elected official, local government employee, or person acting on their behalf could be a violation of the new law, athree-part analysis must be performed: A. Does the statement or activity meet the standards for being either apolitical advertisement or an electioneering communication? A statement or activity is a "political adveriisemcnt" if: 1. "There is a "paid expression;" 2. In a "communications media," (other than the spoken word in direct conversation); 3. Which "expressly advocates" the approval or rejection of an issue. A statement or activity is an "electioneering commuztication" if: 1. "there is a "paid expression;" 2. In a "communications media," (other than the spoken •word in direct conversation); 3. 'that contains a "clear rcference° indicating that an issue is to be voted on at an election; 4. Without "expressly advocating" the passage or defeat of the issue. If the standards for either are not met, the analysis ends and the statement or activity is not n violation of the new law. If the standards for either are met, the next step is: }3. Have "public fends" been expended or the expenditure authorized for the political adveriisemerrt or electioneering communication? 1. If yes for a political advertisement, a violation of the new law may have occurred. 2. If yes for an electioneering communication, does the exception to the new law for an el~rotioneering communication limited to "factual information" apply'? If the exception for "factual information" does not apply, a violation of the new law may have occwrcd. C. Does the exception to the new law for an elected official of a local government to express an opinion on any issue at any time apply't [It is unclear under what cucumstanccs this exception may apply. what we do lurow is that if the opinion or advocacy by the local elected official meets the defmition of being a "politics! advertisement" or an "electioneering communication," except an electioneering communication limited to factual information, the new saw would prohibit the use of public fiords in the development or dissemination of the opinion or advocacy.] Alleged Violations of the New Law Because the new law creates section 106.113, Florida Statuses, any alleged violations fall under the general investigation and penalty provisions on campaign financing in Chapter 106, Florida Statutes. In pertinent part, section 106.]9, Florida Statutes, provides that any person who knowingly and willfully makes or authorizes any expenditure prohibited by Chapter ] 06, Florida Statutes, is guilty of a misdemeanor of the first degree. A misdemeanor is a criminal offense and is enforced by the state attorney in criminal court. Penalties could include a term of imprisonment not to exceed one yeaz and a fine equal to three limes the amount involved in the prohibited expenditure. 'T'herefore, a local government, including the local government's elected officials and employees, or any person or group acting on behalf of the Local government, that intentionally uses any public funds to develop and disseminate or broadcast a message to support or oppose any issue presented to the citizens for a vote, could be guilty of a first degree misdereanor, subject to jail time and a substantial fore. (This same result could occur with the intentional use ofnon-factual information.) Chapter ] OG, Florida Statutes, also creates the Florida Elections Commission, which is within the Department of Legal Affairs, Office of the Attorney Creneral. The Commission has jurisdiction to investigate and deternune violations of any provision of Chapter 106, Florida Statutes. The Commission rnust investigate all alleged violations of Chapter ]06, Florida Statutes, when any person ar the state Division of Elections files a sworn complaint. If the Commission's staff fords that a complaint is legally sufficient, the alleged violator is notified, which sets forth the process far a violation determination. This process essentially requires an alieged violator (local government, local elected official, local government employee, or person acting on their behalf) to hire an attorney. Moreover, if the alleged violation occurs in the performance of the officer or employee's official duties, then taxpayer dollars aze typically used to defend the otl'icex or employee. Complaints filed with the Elections Commission, investigation and investigative reports compiled by the Commission, other papers in the possession of the Conunission with rwpcct to an allegal violation, and the proceedings of the Commission, are exempt from the public records law. However, a complainant is not bound by the confidentiality provisions applicable to the Commission. Therefore, a complainant, once a sworn complaint is filed, may go to the media or anywhere else describing the alleged violation made by a local government, local elected official, local government. employee, or person acting on their behalf. if the Commission finds that a violation of Chapter 106, Florida Statutes, has occurred, the Commission may impose a civil penally not to exceed $1,000 per cotntt. In determining the amount of civil penalties, the Commission must consider various mitigating or aggravating circumstances. The Gommission may also bring civil actions in court for relief, including temporary or permanent injunctions, restraining orders, or any other appropriate order for the imposition of civil penalties provided in Chapter ] 06. Advisory Opinions The state Division of Elections is authorized to provide advisory opinions to various persons or organisations relating to any provisions or possible violations of Florida election laws with respect to actions such person or organi~atian has taken or proposes to take. Section 106.23(2), Florida Statutes. The process for requesting an advisory opinion is further delineated in administrative rule 15-2.010, Florida Administrative Code. Rbquests for advisory opinions mast be; submitted in written form to the Florida Department of State, Division of Elections, and must contain certain specified information. 'fhe Division of Elections must prepare a wririen response to the request in a timely manner, however, it is nut unusual for the Division to provide a written response tluee or more months after a request. CfIAPTER 2009-125 Senate Bill No. 216 An net relating to campaign financing; creating s. 106.113, F.S.; defin• ing the terms "local government" and "public funds"; prohibiting a local government from expending, and a person or group from ac- cepting, public funds for a political advertisement or electioneering commi:riication cvnceming an issue, referendum, or amendment that is subject to the vote of the electors; providing an exception fbr certain electioneering communications; c}ariPyirig restrictions with respect to local officials; providing an effective date. 13e. Lt F.nactod by the Legislature of the State of Florida: Section 1. Section 106.113, Florida Statutes, is created to read: 1.06.),13 Exnenditures by local governnients.- (1) As used in this section the term: (a) "Local eovemmeat" means: 1. A county. munic{gality school district, or other political subdivision in t)}js state: and ~ Anv department, a¢encv, board bureau. district. commission. author- ity, or similar body of a county. municipality. school district. or othgy p~liti- cal subdivision of this state. (b) `Public funds" means all moneys under the jurisdiction or control of the local eovemment. ~A local ttovemment or a person actin¢ on behalf of iocal government may not emend or authorize the expenditure of. and a person or~roup m~ not accent. public funds for a political advertisement or elections~eriptt coni~ munication conccrniuz an issue referendum, or amenaTtl.P~}i , includinz a~ state auestion, That is subject to a vote of the electors This subsection does not ap~v to nn electioneerine communication from a local eovernmeat or a person acting on behalf of a local eovernrrient which is limited to factual information. (3) With the exception of the prohibitions specified in subsectior. (2). this sect~iQ~i ,des not preclude an elected official of the local governmettf.~r..~m, gxpresaina an opinion on any issug at ~np time. Section 2. This act shall take effect July 1, 2009. Approved by the Governor June Z0, 2009. Filed in UfSoe Secretary of State June I0, 2009. 1 COlliNG: Words e6riclccw are deletions; words underlined nra additions.