Loading...
LTC 206-2022 New Law with Expanded Restrictions on Elections-Related Communications206-2022 MIAMI BEACH OFFICE OF THE CITY ATTORNEY LTC No. ---------- TO: Mayor Dan Gelber Members of the City Commission City Manager Alina T. Hudak City Clerk Rafael Granado FROM: Rafael A. Paz, City Attorney DATE: May 26, 2022 LETTER TO COMMISSION SUBJECT: Expanded Restrictions on City's Expenditure of Funds to Inform City Voters of Ballot Measures (New Amendment to Florida Statute Section 106.113). The purpose if this L TC is to notify the Mayor and City Commission of a recent amendment to State law affecting a local government's ability to educate voters on upcoming ballot measures, which will change the method and content of election information provided by the City of Miami Beach. Since 2009, Florida Statute Section 106.113 has prohibited local governments from expending public funds for political advertisements or certain elections-related communications concerning any issue, referendum, or amendment (including a charter amendment or state constitutional amendment) that is subject to voter approval. The law, however, permitted a local government to expend public funds to provide factual information concerning an issue, referendum, or amendment, provided that the local government does not advocate for or against passage of any proposed ballot measure. Accordingly, for many years the City has customarily issued objective and fact-based "Voter's Guides", in furtherance of the public purposes served by educating City voters on upcoming ballot measures. On April 6, 2022, Governor Desantis signed into law HB 921 (attached hereto), which in relevant part amended Section 106.113, effective July 1, 2022. The new law broadly prohibits the use of public funds by local government for anv communication sent to electors concerning an issue, referendum, or amendment, including any state question, that is subject to a vote of the electors. Significantly, the new law now applies to any communication initiated by a local government, "irrespective of whether the communication is limited to factual information."1 Accordingly, based on the new law, and after examining this matter and consulting with the City Clerk and elections counsel, I am of the opinion that the City's practice of issuing fact-based "Voter's Guides," with detailed explanations of each proposed ballot measure, may no longer continue. 1 The law contains very limited exceptions for certain ancillary communications such as " ... reporting on official actions of the local government's governing body in an accurate, fair, and impartial manner; posting factual information on a government website or in printed materials; hosting and providing information at a public forum; providing factual information in response to an inquiry; or providing information as otherwise authorized or required by law." Letter to Commission -Amendment to Florida Statute Section 106.113 May 19, 2022 Page 2 However, subject to any guidance which may be issued by the State Division of Elections, it is also my opinion that the limited exceptions in the statute would permit the City to continue to publish the text of the ballot questions themselves in communications such as the MB Magazine, along with a link to the City Clerk website, where voters may access the underlying resolutions and related agenda materials officially approved by the City Commission. The City may also continue to publish basic general fact-based elections-related information, such as information concerning deadlines for Voter Registration; Early Voting locations, hours, and dates; Vote-by- Mail deadlines; and Elections Day hours. Finally, it is important to note that the new law does not change the ability of the Mayor and Commissioners to expressly advocate for or against passage of proposed ballot measures, pursuant to Section 106.113(3), which provides that "With the exception of the prohibitions specified in subsection (2), this section does not preclude an elected official of the local government from expressing an opinion on any issue at any time." Accordingly, and in the absence of an opinion from the State Division of Elections (or the Miami-Dade County Ethics Commission, in connection with the County's corresponding ethics restrictions governing political activity of local elected officials), it is my opinion that the Mayor and Commissioners may express their personal opinion on a ballot measure and/or expressly advocate for such issue so long as no City funds are used in such communications. I remain available should you have any questions or otherwise wish to discuss the above. RAP/ag We ore committed to providing excell ent public seNice and sotety to off who five, work, and play in o ur vibrant, tropical, his fo,ic community. CHAPTER 2022-56 Committee Substitute for Committee Substitute for House Bill No. 921 An act relating to campaign financing; amending s. 106.08, F.S.; providing applicability of a limitation on certain political contributions; providing a definition; providing that a foreign national may not make or offer to make certain contributions or expenditures; amending s. 106.113, F.S.; revising limitations on the use or acceptance of public funds for certain political advertisements or communications by a local government or a person acting on behalf of a local government; revising applicability; providing for construction; providing an effective date. Be It Enacted by the Legislature of the State of Florida: Section 1. Paragraph (a) of subsection (1) of section 106.08, Florida Statutes, is amended, and subsection (12) is added to that section, to read: 106.08 Contributions; limitations on.- (l)(a) Except for political parties or affiliated party committees, no person or political committee may, in any election, make contributions in excess of the following amounts: 1. To a candidate for statewide office or for retention as a justice of the Supreme Court. $3,000. Candidates for the offices of Governor and Lieutenant Governor on the same ticket are considered a single candidate for the purpose of this subparagraph. 2.,_ & To a political committee that is the sponsor of or is in opposition to a constitutional amendment proposed by initiative, $3,000. This limitation applies only to persons who are not residents of the state and to political committees that have not registered an office under this chapter using a street address located within the state. However, the limitation on contributions to such political committees no longer applies once the Secretary of State has issued a certificate of ballot position and a designating number for the proposed amendment that the political committee is sponsoring or opposing. Candidates for the offices of Governor and Lieutenant Governor on the same ticket are considered a single candidate for the purpose of this section. 3.:2--c To a candidate for retention as a judge of a district court of appeal; a candidate for legislative office; a candidate for multicounty office; a candidate for countywide office or in any election conducted on less than a countywide basis; or a candidate for county court judge or circuit judge, $1,000. 1 CODING: Words stricken are deletions; words underlined are additions. Ch. 2022-56 LAWS OF FLORIDA Ch. 2022-56 (12)(a)l. For purposes of this subsection, the term "foreign national" means: a. A foreign government: b. A foreign political party: c. A foreign corporation, partnership, association, organization, or other combination of persons organized under the laws of or having its principal place of business in a foreign country: d. A person with foreign citizenship: or e. A person who is not a citizen or national of the United States and is not lawfully admitted to the United States for permanent residence. 2. The term does not include: a. A person who is a dual citizen or dual national of the United States and a foreign country. b. A domestic subsidiary of a foreign corporation, partnership, associa- tion, organization, or other combination of persons organized under the laws or having its principal place of business in a foreign country if: (I) The donations and disbursements used toward a contribution or an expenditure are derived entirely from funds generated by the subsidiary's operations in the United States: and (II) All decisions concerning donations and disbursements used toward a contribution or an expenditure are made by individuals who either hold United States citizenship or are permanent residents of the United States. For purposes of this sub-sub-subparagraph, decisions concerning donations and disbursements do not include decisions regarding the subsidiary's overall budget for contributions or expenditures in connection with an election. (b) A foreign national may not make or offer to make, directly or indirectly, a contribution or expenditure in connection with any election held in the state. Section 2. Subsection (2) of section 106.113, Florida Statutes, is amended to read: 106.113 Expenditures by local governments.- (2) A local government or a person acting on b ehalf of local governmen t may not expend or authorize the expenditure of, and a p erson or group may not accept, public funds for a political advertisement or any other electioneeFing communication sent to electors concerning an issue, refer- endum, or amendment, including any state question, that is subject to a vote of the electors. This subsection applies does not apltly to f! an electioneeFing 2 CODING: Words stricken are deletions; words underlined are additions . Ch. 2022-56 LAWS OF FLORIDA Ch. 2022-56 communication initiated by from a local government or a person acting on behalf of a local government, irrespective of whether the communication v:hich is limited to factual information or advocates for the passage or defeat of an issue, referendum, or amendment. This subsection does not preclude a local government or a person acting on behalf of a local government from reporting on official actions of the local government's governing body in an accurate, fair, and impartial manner; posting factual information on a government website or in printed materials; hosting and providing informa- tion at a public forum; providing factual information in response to an inquiry; or providing information as otherwise authorized or required by law. Section 3. This act shall take effect July 1, 2022. Approved by the Governor April 6, 2022. Filed in Office Secretary of State April 6, 2022 . 3 CODING: Words stricken arc deletions; words underlined are additions.