Election Season Tips and Reminders

With the local election season getting started, let’s review tips and reminders for local government agencies, their staff, and elected officials. This blog highlights some of MRSC’s guidance on a variety of election-related issues.

Public Facilities and Resources 

During election season, agencies, their staff, and elected officials must remember RCW 42.17A.555, which prohibits the use of public office or public facilities to directly or indirectly support a campaign for election or any ballot proposition. The statute identifies facilities of a public office as including, but not limited to:

…stationery, postage, machines, and equipment, use of employees of the office or agency during working hours, vehicles, office space, publications of the office or agency, and clientele lists of persons served by the office or agency.

Officials and public agency employees should make sure any activities directly or indirectly involving a campaign for office or a ballot measure are conducted outside of public work hours without using public resources. However, this statutory prohibition provides several exceptions, including when:

• a governing body of a municipality expresses a collective opinion on a ballot measure,
• an individual elected official may make a statement of support or opposition to a ballot measure, and
• activities of a public agency are part of its normal and regular conduct.

Our webpage on Use of Public Facilities in Election Campaigns offers more information, as does the blog, Supporting/Opposing Ballot Measures and Candidates.

Public Agency Sponsored Forums

Under some circumstances, RCW 42.17A.555 allows a local government to use its public facilities to hold a forum for candidates or for pro/con sides to debate a ballot measure. WAC 390-05-271(2)(a) explains that RCW 42.17A.555 does not prevent an agency from “making its facilities available on a nondiscriminatory, equal access basis for political uses.”

The Washington State Public Disclosure Commission (PDC) has also addressed this issue (and much more) in Guidelines for Local Government Agencies in Election Campaigns (PDC Interpretation 04-02). Public agency meeting facilities may be used when the facility is a ‘neutral forum’ where campaign activity is taking place, and the agency is not actively endorsing or supporting the activity that is occurring. For example, if a local government wishes to sponsor a discussion involving a ballot measures, it should make sure both the supporting and opposing groups are given equal access to present their case, including the equal distribution of campaign materials.

Preventing Campaigning During Public Comment

PDC staff has informally told us (and we agree) that the use of official meeting time in council/board chambers for campaign purposes would violate RCW 42.17A.555. Public commentors should be reminded of this rule and warned against campaigning activities during public meetings. One exception would be if the legislative body is considering a resolution supporting or opposing a ballot measure. In that case, to the extent the agency allows public comment on the action, it likely would not violate the statute if the agency allows public comment on whether the agency should (or should not) adopt the resolution.

Campaign Buttons, Pins, or Other Material

PDC Interpretation No. 92-01 states that “an elected official or public employee is not acting in violation of RCW 42.17A.555 when he or she wears a typical campaign pin or button during normal working hours.” It also goes on to note that this statute does not supersede a local ordinance, rule, or policy that prohibits the wearing of any/all political pins by all agency staff.

However, if a local government decides to develop a policy prohibiting employees from wearing campaign buttons or pins, the policy needs to be content neutral (i.e., regulates only the time, place, and manner of speech, and not the speech itself) in order to avoid a potential violation of the First Amendment.

Political Campaigns

Public employees and elected officials can be involved in political campaigns in their private capacity. RCW 41.06.250(2) provides:

Employees of the state or any political subdivision thereof shall have the right to vote and to express their opinions on all political subjects and candidates and to hold any political party office or participate in the management of a partisan, political campaign.

Regarding participation in political campaigns, WAC 390-05-271(1), a regulation adopted by the PDC, clarifies that RCW 42.17A.555 does not restrict the right of any individual to express thier personal views concerning, supporting, or opposing any candidate or ballot proposition so long as that expression does not involve a use of public facilities.

In today’s world where agency staff and elected officials can communicate with the public through a variety of channels, remember that a publication “of the office or agency” is included in the definition of facilities of a public office. This phrase may be interpreted broadly to include agency-owned social media pages and other digital media, because these are “publications.” So, using agency computers to post content in support or opposition of a candidate or ballot measure would violate the prohibition on the use of public facilities, but so would using a public agency’s social media pages (e.g., Facebook or Instagram) in the same manner.

A local government may wish to publish or post information, particularly about a ballot measure that might impact their communities or a partner agency, but this should be carefully vetted. In general, such a post or webpage needs to fit within the bounds of your agency’s typical communications to the community, provide only factual information, and not include highly emotional or persuasive content designed to sway opinion in favor or against a measure. For further guidance, we suggest you check with your agency’s attorney and the PDC.

Personal Social Media/Speaking Engagements

Although, RCW 42.17A.555 prohibits public agencies, their staff, and elected officials from using agency-based social media to either support or oppose ballot initiatives or candidates, what about staff or elected officials using their personal social media accounts?

In general, anyone connected with a public agency and wishing to make a public statement in support or opposition to a ballot initiative or a candidate should make it clear that they are stating their personal opinion and not expressing the view of the agency or its governing body — regardless of the type of media used, including on social media accounts, in public appearances, or in public statements.

Public Service Announcements

A state or municipal elected official may not speak or appear in a public service announcement (PSA) that is broadcast, shown, or distributed during the period from January 1 through the general election in a year the official is also candidate for office. See RCW 42.17A.575.

Political Signs and Signature Gatherers

Political signs may not be prohibited in the parking strip portion of the right-of-way (that area between the curb and the sidewalk) but probably can be excluded in the median, traffic circles, and other portions of the right-of-way if a similar prohibition applies to all signs. Political signs within the parking strip portion of the right-of-way generally require the consent of the abutting property owner. For more information, check out our blog, Regulating Signs During Election Season, or our webpage on Sign Regulation, which includes examples of temporary sign regulations.

Organizations may look to gather signatures for local initiatives on agency owned public property, such as a park or a right-of-way. Does the agency have to allow this activity? This depends on whether the property has traditionally been used as a place for expressive activity (e.g., fairs, public marches, artistic presentations). For example, your agency may not have to allow it in your building lobby or other internal common area, but if it happens in a dedicated outdoor public plaza where expressive activity takes place regularly, then restricting signature gathering might be in violation of the organizers’ First Amendment rights (and remember, if your agency does allow activity inside lobby areas, it must do so in a content-neutral manner).

Conclusion and Resources

It is important to understand the laws and rules that apply during the election season. The PDC is the authority for campaign rules and financial obligations for candidates. The Washington Secretary of State (SOS) offers extensive online resources for election campaigns, including Running for Office FAQs.

MRSC also offers many resources regarding elections. For starters, check out Explore Topics - Elections, which contains several webpages covering resources for candidates and newly elected officials, ballot measures, elections administration, redistricting at the local government level, and restrictions on the use of public facilities in elections campaigns.