How Can Local Governments Celebrate the Holidays?
With the winter 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 will discuss the legal concerns local government officials and staff should keep in mind when engaging in such activities this holiday season. For suggestions on how to tie diversity, equity, and inclusion goals to holiday planning, see our blog, Making Local Government Holiday Observances More Inclusive.
May a local government send out holiday cards? MRSC cautions against a municipality spending public funds and staff time for 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.
MRSC believes that local governments may display secular holiday decorations, such as lights, reindeers, wreaths, 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.
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.
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 historically found that such a display could impermissibly give the reasonable observer the impression that the government agency was endorsing religion, even if the display was privately sponsored.
However, federal case law on the Establishment Clause of the U.S. Constitution is evolving. The “endorsement” test in Lemon v. Kurtzman has been clarified by the U.S. Supreme Court, which instructs that “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.'” Kennedy v. Bremerton School District, 213 L. Ed. 2d 755, 142 S. Ct. 2407, 2428 (2022).
MRSC has also historically concluded that religious displays will likely withstand constitutional scrutiny if they are 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, reindeers, 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). Because the Kennedy case is so new, we do not yet know how a court would apply it to a nativity scene case such as in Lynch. Also, when reviewing our diversity, equity, and inclusion blog linked above, please note that the “establishment” test in the Decorations section of that blog may be affected by Kennedy.
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 Washington State Auditor’s Office (SAO) has looked more favorably on such expenditures in recent years.
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 Washington 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, perhaps as part of an employee recognition policy or the agency’s wellness program. 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.
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? Local governments can accept gifts if this is approved by the legislative body. See RCW 35.21.100 for cities, RCW 36.69.160 for park and recreation districts, RCW 70.44.060(11) for public hospital districts, and several different provisions in Title 36 RCW for counties. Also see our blog, Donations and Local Governments: The Basics of Giving and Receiving.
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.
Holidays can be fun, but caution is nevertheless advised. If a proposed practice raises concerns for your or other staff, 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.