Supporting/Opposing Ballot Measures and Candidates

During election season local government staff and elected officials often contact MRSC with questions about supporting or opposing ballot issues or candidates for office. What can be done and what cannot? One statute that provides the answer to all of these questions, as well as many others, is RCW 42.17A.555, which states in part:

No elective official nor any employee of his or her office nor any person appointed to or employed by any public office or agency may use or authorize the use of any of the facilities of a public office or agency, directly or indirectly, for the purpose of assisting a campaign for election of any person to any office or for the promotion of or opposition to any ballot proposition.

The prohibitions against using public facilities for campaign purposes have been crafted to respect free speech rights in the political process and provide options for elected officials and agency staff to inform the public.

This blog addresses questions local governments often have when it comes to supporting or opposing ballot measures and candidates for public office.

Common Questions Regarding Candidates

As an elected (or appointed) official, what can I do to support of a candidate for office? 

An elected/appointed official may write a letter or record a video/write a social media post or sign an endorsement in support of a candidate. You may even use your title, but it must be clear that this is your personal opinion and not made on behalf of the governing body that you serve on. 

Also, regardless of how you express your support be sure that you don’t use government resources (including office equipment, facilities, social media channels webpage, or staff time), as that is prohibited in RCW 42.17A.555.

May a local government host a candidates’ night in a council or commissioners chambers or other room? 

Yes, such a forum would be alright if it's a “neutral forum” where all the candidates are allowed to participate and the public agency is not actively offering endorsement or support to any one candidate.

May uniforms be used in a candidate brochure or advertisement? 

It depends. According to the PDC:

Agency employees and campaigns may use uniforms that are not the property of the agency and are rented or purchased with non-public funds (such as campaign funds), to assist campaigns including to support or oppose ballot propositions.

Common Questions Regarding Ballot Measures

How may an elected or appointed official support or oppose a ballot measure? 

As long as an elected/appointed official (or local government employee) is not using agency resources, they can support or oppose a ballot proposition, give money in support or opposition of the proposition, and be involved in campaigns.

In enacting the prohibitions that are in RCW 42.17A.555, the legislature affirmed that Washington State has a longstanding policy of promoting informed public discussion regarding proposed ballot measures. Elected/appointed officials and agency staff have an important voice in that discussion.

Here are some specific circumstances MRSC consultants have been asked about in the past:

• Making a statement in support of or in opposition to a ballot proposition at an open press conference or in response to a specific inquiry: Approved, as long as it is clear the support is not made on behalf of the local government they represent, and the press conference is not held in a public facility or otherwise uses public resources.
• Having the official (and their title) listed on advertisements, such as a privately funded mailer in support of/opposition to a ballot proposition: Approved, but the mailer should include a footnote that the title is provided for identification purposes only.

How may a governing body support or oppose a ballot measure? 

RCW 42.17A.555 allows a legislative body to express support or opposition if its meeting notice includes the title and number of the ballot proposition, and if those who have an opposing view are afforded an approximately equal opportunity to express their opinions. 

The governing body is free to adopt a resolution supporting or opposing a ballot proposition; make facilities available on a nondiscriminatory; equal access basis for political purposes; and/or make an objective and fair presentation of the facts relevant to a ballot proposition if such an action is part of the normal and regular conduct of the agency. See, e.g., WAC 390-05-271 (general applications of RCW 42.17A.555) and WAC 390-05-273 (definition of normal and regular conduct).

May a local government allow photographs of agency facilities or grounds to be included in advertisements?

An advertisement could include a photo or image of agency facilities or grounds if the photo/image was obtained from a Public Records Act (PRA) request or is otherwise available to the public (e.g., downloaded from a website, etc).

A good rule of thumb on these issues is to consider public perception. Will anyone viewing this advertisement think agency facilities or resources were used? To address such concerns, real or perceived, the advertisement could include a footnote noting how the photo or image was obtained (e.g., publicly available or through a PRA request), though such a footnote is not a requirement.

May a local government allow candidates, ballot sponsors, or ballot opponents to place campaign materials in a government building? 

Probably, as long as there is a policy setting aside an area where election campaign brochures and related materials are made available to the public. Additionally, all candidates or competing sides of a ballot issue must be allowed to place their literature at that location and the agency should not provide an advantage to any particular candidate or position. The practice, if routinely allowed, could be considered “normal and regular conduct,” a recognized exception to RCW 42.17A.555.

May a local government prepare a fact sheet on a ballot issue? 

A local government may prepare such a sheet as long as it is an objective and fair presentation of the facts of the ballot measure, and if creating a fact sheet would be part of the agency’s normal and regular communications. Other information may be provided, for example through a newsletter or website, if the information is fair and objective and if the manner in which the local government shares the information is a normal, regular, and customary means of providing information to the public.

A recommended approach for an agency in preparing a fact sheet is to:                                 

1. Determine the set of objective facts applicable to the issue that voters need to know;
2. Determine what the agency does as part of its normal and regular conduct in communicating with its constituency (e.g., sending out regular newsletters on substantive issues, creating webpages, etc.); and
3. Ensure the content of the fact sheet is not promotional (i.e., it does not support or oppose the issue).

Additional Resources

The Public Disclosure Commission (PDC) is an excellent resource that helps local governments, staff, and elected/appointed officials operate within the constraints of these laws. If you question whether an informational brochure is objective and fair or whether the proposed use of a facility or government resource is appropriate, the PDC can provide answers. The key is to contact the PDC before undertaking a particular action.

MRSC staff have written on a variety of election-related topics, from campaign buttons to pandemic-related considerations and more. MRSC also maintains a webpage on the use of public facilities in campaigns, and, of course, you can always reach out for tailored guidance from one of our legal, financial, or policy consultants.