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How Can Local Governments Celebrate the Holidays?


November 9, 2016 by Paul Sullivan
Category: Governance

How Can Local Governments Celebrate the Holidays?

Christmas is coming, the goose is getting fat. As is the turkey—and possibly the tofurky. 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 Christmas 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.

Christmas Cards

May a city send out Christmas 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 Christmas cards, using public funds, might be construed as a violation of this constitutional provision, 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, and public tax revenues may, under article 7, section 1 of our state constitution, 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.

Christmas Trees

A Christmas 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 the tree 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. See, e.g., County of Allegheny v. ACLU, 492 U.S. 573 (1989) (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 e.g., Lynch v. Donnelly, 465 U.S. 668 (1984).

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, the Auditor’s Office has in recent years 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 authorizing expenditures for it. Municipal funds can be spent for advertising and light refreshments for the public and government employees and officials, as well as other necessary items for the celebration. All expenditures need to be reasonable and properly documented. For additional information, see Eating and Drinking at Public Expense, an informal article issued by the Attorney General’s Office.

In contrast, a party or celebration only for agency employees may 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 implicating article 8 section 7 of the state constitution.

Gifts

The saying goes “it is better to give than receive,” but, as to municipalities, the giving of gifts is not allowed. Article 8, section 7 of the Washington State Constitution provides that “[n]o county, city, town or other municipal corporation shall hereafter give any money, or property.” That pretty much eliminates gift giving, but can gifts be received? Gifts to the government can be accepted, if approved by the legislative body. See, e.g., RCW 35.21.100. But 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 (a plate of homemade cookies or candy, for example). 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 least, to discuss the gift with the jurisdiction’s legal counsel. For more information and a sample local policy on the receipt of gifts, see our Everybody Loves to Receive a Gift blog post.

Holidays can be fun, but some 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.

If you have questions related to this blog post, please let me know in the comments below or contact me directly at psullivan@mrsc.org.

About Paul Sullivan

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

VIEW ALL POSTS BY Paul Sullivan

Comments

"Hello Ms Baxley, Actually Christmas Day is a recognized holiday and has been referenced by name by state statute. It was first recognized in 1888, prior to statehood, and has remained a named holiday, unchanged, ever since."

Paul Sullivan on Nov 21, 2016 11:37 PM

"Sir, I am curious as to when the "Christmas" holiday celebration changed from actually being Christmas to being just a "Winter" holiday. Did this actually get the VOTERS voice to vote on to change or was it left up to the government which seems to always "compromise" with the minority instead of allowing the MAJORITY to speak and keep our American right to religious freedom, which I know for a fact is Christian be it Catholic, Baptist, Lutheran, Presbyterian, Apostolic, etc. We've been celebrating Christmas for over 100 years and just would like to know how just a few can force a change that the many have traditionally chosen to celebrate. Thank you for your time. Judy A. Baxley"

Judy A. Baxley on Nov 19, 2016 2:17 AM

"Paul, Thanks for the timely comment. The questions come up every year from staff, Council, and citizens."

Steve Gross on Nov 17, 2016 7:18 PM

3 comments on How Can Local Governments Celebrate the Holidays?

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