Supporting/Opposing Ballot Measures and Candidates

With the upcoming state elections (including three statewide initiatives), MRSC has been getting more than its usual number of questions about supporting or opposing ballot issues or candidates for office. What can be done and what cannot?

The main restriction is found in RCW 42.17A.555:

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.

MRSC covers this issue in detail on our use of public facilities in campaigns webpage. Additionally, MRSC staff have written on a variety of election-related blogs, from campaign buttons to yard signs and more. But, the experts on this matter are the folks at Washington’s Public Disclosure Commission, who have published (and regularly updated) their Guidelines for Local Government Agencies in Election Campaigns.

This blog addresses some of the more frequently asked questions local governments have asked regarding supporting or opposing ballot measures and candidates for public office.

Statewide Versus Local Ballot Measures

Is there a difference between what can be done for state initiatives as opposed to local initiatives? The basic prohibitions and exceptions about supporting or opposing ballot issues remain the same regardless of whether the measure is local or statewide.

What could be different is how to apply the exemption that allows “activities which are a part of the normal and regular conduct of the office or agency.” The information an agency normally provides about its local activities, budget, and long-term plans may be vastly different from the information it normally provides about statewide matters.

If  you or your agency is thinking about writing or taking a position on a statewide initiative, take a look at WAC 390-05-273 (definition of normal and regular conduct), and search the Guidelines for Local Government Agencies in Election Campaigns for examples that are similar to what you or your agency is considering doing.

Common Questions Regarding Candidates

As an elected (or appointed) official, what can I do to support 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 do not use government resources (including office equipment, facilities, social media channels webpage, or staff time), as that is specifically prohibited.

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

Yes, such a forum would be acceptable if it is 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.

Your agency may get questions about why its uniformed personnel appear to be using agency equipment or uniforms in campaign materials. Remember that violations of the statute are managed by the PDC, not the local agency.

However, misuse of agency resources may violate RCW 42.23.070’s prohibition on using a person’s official position to secure special privileges for themselves or others, or it may violate the agency’s own local ethics code. So, while it is always appropriate to refer a complaint to the PDC, the agency may still need to investigate this issue.

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. They can even use their official title when undertaking such activities.

In enacting the exemptions 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, and the agency as a body, have an important voice in that discussion.

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

• Can an official (or employee) can make a statement in support of or in opposition to a ballot proposition at an open press conference or in response to a specific inquiry? Yes, if the individual makes it clear that they are speaking for themselves and not on behalf of the local government they represent, and the press conference is not held in a public facility or otherwise uses public resources.
• Can an official (or employee) have their name and their title listed on advertisements, such as a privately funded mailer in support of/opposition to a ballot proposition? Yes, but the mailer should include a note that the title of the official (or employee) 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 (council, commission, board) 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 can 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).

What the agency cannot do is spend public funds to challenge a proposed ballot measure in court. See our 2019 blog, Limits on Pre-Election Litigation Involving Local Ballot Initiatives, for a more detailed discussion of this restriction. Washington’s Court of Appeals has also said that a city cannot adopt an ordinance that requires the city attorney to determine whether a ballot measure is valid.

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, if 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 (or must) a governing body allow members of the public to speak about a candidate or ballot issue during the public comment period of a public meeting? 

Candidates and/or speakers should not specifically address a campaign or ballot measure at a public meeting or during the public comment period.  

RCW 42.17A.555 prohibits government agencies from allowing the use of public facilities, directly or indirectly, for campaign purposes.  MRSC and the PDC have interpreted the statute to mean that allowing someone to do so during a public meeting or during a public comment period would violate this prohibition.

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

A local government may prepare such a sheet if 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).

The PDC’s guidelines clearly say that in no case will the PDC view a marketing or sales effort as “normal and regular conduct,” but there is a bit of gray area here. Generally, the PDC has said that the agency can put out one fact sheet.

What happens if the agency wants to do a series of weekly or daily posts on its social media account? On one hand the PDC has said “one” mailer. On the other hand, if the information is in one document, but it is published online in parts, is it one or more than one? We do not know the answer to that.

Additional Resources

The 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.