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How Can Local Governments Celebrate the Holidays?


November 22, 2019 by Paul Sullivan
Category: Governance

How Can Local Governments Celebrate the Holidays?

With the holidays approaching, many local governments may be considering how to celebrate the holiday season through, for example, such means as holiday decorations, cards, and decorated trees. Can local governments do this? Maybe, but some caution is probably warranted before proceeding.

This blog post will discuss the legal concerns local government officials and staff should keep in mind when engaging in such activities this holiday season.

Cards

May a city send out holiday cards? MRSC cautions against a municipality spending public funds and staff time for Christmas or holiday cards. Although the cost may be fairly nominal, there are two reasons why this type of expenditure could be considered inadvisable from a legal standpoint.

First, article 1 section 11 of the Washington State Constitution provides:

No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment...

The purchase and mailing of cards using public funds might be construed as a violation of this constitutional provision, especially if the cards have a religious theme.

Secondly, even if the cards are secular in nature, it is questionable whether their purchase and mailing can be justified as a proper municipal purpose. Under article 7, section 1 of our state constitution, public tax revenues may only be collected for proper municipal purposes. If the sending of cards is nevertheless deemed necessary, the card purchase and mailing could be accomplished through the use of private donations and labor rather than the use of public funds and staff time. Making the mailing of cards a private project both eliminates the constitutional concern and avoids a challenge that there is no municipal purpose.

Holiday Decorations

I think that local governments may display secular holiday decorations, such as lights, Santas, and candy canes, to beautify streets and parks and generally celebrate the holidays. Such decorations may also attract tourists and help promote economic development, which are recognized public purposes.

Decorated Trees

A festive, decorated tree displayed in a park, at a public building, or in a street or road right-of-way, such as in a roundabout, should be permissible and not in violation of either the state or federal constitutions. It is probably better, however, to call it a “holiday” tree rather than a “Christmas” tree.

Nativity Scenes

When a nativity scene or other religious display has been placed alone in front of a public building — especially a seat of government (e.g., a courthouse or city hall) — courts have often found that such a display would impermissibly give the reasonable observer the impression that the government was endorsing religion, even if the display was privately sponsored. The court in County of Allegheny v. ACLU, 492 U.S. 573 (1989) found the display of a crèche in the county courthouse violated the U. S. Constitution because the "principle or primary effect" of the display was to advance religion when viewed in its overall context.

Nevertheless, a nativity scene will likely withstand constitutional scrutiny if it is made part of a broader display of seasonal decorations. For example, a display of a nativity scene along with secular symbols, such as holiday trees, Santa Claus, reindeer, and candy canes downplays what a reasonable observer might otherwise see as a government endorsement of religion (See the 1984 ruling in Lynch v. Donnelly, 465 U.S. 668).

Holiday Parties

May a jurisdiction hold a holiday party, offering cookies, cake, punch, and other light refreshments? Maybe. Use of public funds to provide food and drink to others may be considered a “gift” in violation of article 8 section 7 of the state constitution: However, in recent years the Washington State Auditor’s Office (SAO) has looked more favorably on such expenditures.

Limited expenditures for community celebrations may be permissible if the legislative body passes a resolution declaring the holiday party to be a public event with a public purpose and then authorizes expenditures for it. Municipal funds can be spent for advertising, light refreshments, and other items necessary for the celebration, and the event should extend an open invitation to the public, which can include government employees and elected officials. All expenditures will need to be reasonable and properly documented. For additional information, see Eating and Drinking at Public Expense, an informal article issued by the state Office of the Attorney General.

In contrast, a party or celebration solely for agency employees may only be possible if the governing body first adopts a policy providing for one. If such a policy is adopted then the party becomes part of the employees’ compensation and would not be considered a gift of public funds.

Gifts

As the saying goes, “it is better to give than receive,” but for municipalities, the giving of gifts is not allowed. 

Article 8, section 7 of the Washington State Constitution provides that

No county, city, town or other municipal corporation shall hereafter give any money, or property, or loan its money, or credit to or in aid of any individual, association, company or corporation…

That pretty much eliminates gift giving, but can gifts be received? Under RCW 35.21.100, gifts to the government can be accepted if this is approved by the legislative body. However, gifts to government officials and employees may cause a problem. Specifically, RCW 42.23.070(2) provides:

No municipal officer may, directly or indirectly, give or receive or agree to receive any compensation, gift, reward, or gratuity from a source except the employing municipality, for a matter connected with or related to the officer's services as such an officer unless otherwise provided for by law.

Some local governments are more tolerant of the receipt of gifts, especially if the gift is of “de minimis” value, such as a plate of homemade cookies or candy. Gifts of value, though, do raise ethical issues, and a violation of RCW 42.23.070(2) could result in a fine or removal from office. If the gift is of value, it is probably best not to accept it or, at a minimum, to discuss the gift with your jurisdiction’s legal counsel. For more information on gifts and sample local policies, see our blog post on Municipal Giving and Receiving.

Holidays can be fun but caution is nevertheless advised. If you have a concern about a proposed practice, it would be a good idea to discuss the issue with your agency’s legal counsel.


MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

About Paul Sullivan

Paul has worked with local governments since 1974 and has authored MRSC publications on local elections, ordinances, and general local government operations. He also provides training on the Open Public Meetings Act.

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