CITY AND COUNTY OF SAN FRANCISCO

DENNIS J. HERRERA City Attorney

OFFICE OF THE CITY ATTORNEY

MEMORANDUM
TO: FROM: DATE: RE: ALL ELECTED OFFICIALS DENNIS J. HERRERA City Attorney September 7, 2005 Use of City Resources for Electronic Newsletters, Constituent E-Mails and Blogs

Several elected officials have inquired about the propriety of communicating with constituents through electronic newsletters, e-mails, and web logs ("blogs"). Specifically, a number of questions have arisen about the application of rules prohibiting the use of City resources for political activities to these types of communications. In this memorandum we set forth general guidelines and provide illustrations applying them. If you have any questions about whether any electronic newsletter or other information you plan to distribute comports with these guidelines, please contact the City Attorney's Office. I. GENERAL PRINCIPLES City officials may use public resources, including personnel, paper, postage, and computers, only for authorized City purposes. State and local law specifically prohibit City officials from using such resources for campaign or other political purposes. See Cal. Penal Code § 424 (prohibiting theft of government resources); Cal. Govt. Code § 8314 (prohibiting officials from using public resources for campaign activity); Cal. Govt. Code § 54964 (prohibiting expenditure of any local agency funds to support or oppose the approval or rejection of a ballot measure, or the election or defeat of a candidate, by the voters); S.F. C&GC Code § 3.230 (prohibiting political activity during working hours or on City premises). In addition, the California Constitution, as construed by the courts, prohibits the government, including City officers acting in their official capacity, from taking sides in matters pending before the voters. "A fundamental precept of this nation's democratic electoral process is that the government may not 'take sides' in election contests or bestow an unfair advantage on one of several competing factions." Stanson v. Mott, 27 Cal.3d 206, 217 (1970). "A principal danger feared by our country's founders lay in the possibility that the holders of governmental authority would use official power improperly to perpetuate themselves, or their allies in office." Id. (citations omitted). While the government is free to provide information to the voters about issues that affect them, government officials may not put their thumbs on the scales. Information provided by the government must be fair, balanced, and impartial. See id. The California Supreme Court has observed that no bright line distinguishes improper campaign activities from proper informational activities. While some activities, such as campaign advertisements or endorsements might clearly fall on one side of the line, often the appropriate categorization of an activity is less clear. "In such cases, the determination of the propriety or impropriety of the expenditure depends upon a careful consideration of such factors as the style, tenor and timing of the publication; no hard and fast rule governs every case." Id. at 222 (footnote omitted).
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CITY AND COUNTY OF SAN FRANCISCO
Memorandum TO: DATE: PAGE: RE:

OFFICE OF THE CITY ATTORNEY

ALL ELECTED OFFICIALS September 7, 2005 2 Use of City Resources for Electronic Newsletters, Constituent E-Mails and Blogs

A misuse of City resources can subject an official to criminal or civil penalties. See People v. Battin, 77 Cal. App. 3d 635 (1978). A taxpayer may also seek repayment of public funds wrongfully expended. See, e.g., Stanson v. Mott, 17 Cal.3d 206 (1976). II. NEWSLETTERS, BLOGS AND OTHER FORMS OF ELECTRONIC COMMUNICATION Elected officials often seek to provide information to their constituents about the elected official's accomplishments in office, policies and plans for future projects, and ongoing work of their offices. These communications with constituents have taken a variety of forms, from an occasional letter mailed to voters' residences, to a printed newsletter distributed on a regular basis. With new technologies available, these traditional communications now appear in other forms, such as e-mailed newsletters, postings on list serves, webpages, and blogs. Unlike traditional newsletters, these new forms of electronic communications are not currently subject to the state's mass mailing rule, which severely restricts the use of City resources for mailing newsletters and other communications at public expense where the mailings feature an elected official.1 But while electronic communications are currently free from mass-mailing restrictions, they are subject to the general restrictions on use of City resources for political activity. Thus, an elected official may not use any e-mail, blog, or other form of communication that uses City resources to influence the voters to support or oppose a candidate or measure. While there is no bright line rule for determining when a communication is intended to influence the voters in an election, we can look to the Supreme Court's "style, tenor, and timing" test to evaluate particular communications. Although the line between proper and improper activity may be imprecise, City officials should bear in mind that the public as a whole funds the communication and that government communications serve a different function than private media or publications funded by campaigns. Striving to provide factual and balanced information and materials, as opposed to information that reads like campaign literature supporting or opposing a candidate or measure, should avoid concerns that City resources are being used to advance or oppose candidates or measures. • TIMING The closer in time to an election that information is distributed, the more likely that some content could be viewed as political activity. For example, an article in a newsletter about a neighborhood problem might be unremarkable two years before an election, even if a bit strident. But the same article might take on a more political tone if the newsletter is sent 18 months later when the issue addressed is a central dividing point between two candidates. For this reason, in evaluating the content of a newsletter, blog, or other communication, the sponsor must consider the timing of the communication. In addition, even if a single communication, viewed in isolation, does not constitute political activity at the time it is made, the communication, together with subsequent actions the officer takes, may later be viewed as part of a pattern of political activity. The following examples illustrate some of these considerations.

1

The mass-mailing rule prohibits the mailing at public expense of more than 200 substantially similar items in a calendar month that feature an elected official. Cal. Govt. Code § 89001. The California Fair Political Practices Commission, which administers this law, has not yet extended it to items sent by e-mail. This memorandum does not address this restriction on mailings.

CITY AND COUNTY OF SAN FRANCISCO
Memorandum TO: DATE: PAGE: RE:

OFFICE OF THE CITY ATTORNEY

ALL ELECTED OFFICIALS September 7, 2005 3 Use of City Resources for Electronic Newsletters, Constituent E-Mails and Blogs Example. Two candidates, one of whom is an incumbent, are in a hotly contested race for the Board of Supervisors in November. The incumbent, Polly Palmer, has regularly distributed a monthly e-mail newsletter to voters in her district called "District 13 Happenings," generally filled with descriptions of the legislation and projects she is working on for the district. In October, the incumbent renames the newsletter "Palmer's District Happenings" and distribution of the newsletter is increased to once a week. Although there may be other offsetting factors, the timing of these changes (together with the content of the newsletter) suggest that the newsletter may constitute improper use of government resources for political purposes. Example. Two candidates, one of whom is an incumbent, are in a hotly contested race for a seat on the Board of Supervisors. The two have long been political opponents. The incumbent, Polly Palmer, has regularly distributed a monthly e-mail newsletter to voters in her district called "District 13 Happenings," generally filled with descriptions of the legislation and projects she is working on for the district, as well as attacks on her political opponents, including the one who ultimately entered the race against her. As the election approaches, Palmer continues to distribute the newsletter in the same manner and with the same content. Notwithstanding that she was consistent in her approach to the newsletter, use of the newsletter to attack an opponent on the ballot will likely constitute an unlawful use of City resources.

• TENOR Even with respect to matters being voted on at an election, the government may provide balanced, neutral analysis. Thus, communications that are strictly factual, balanced, and impartial generally should not be characterized as improper political activity. But the more a communication departs from the strictly factual and impartial presentation of information, the increased risk the sponsor runs that the communication may be viewed as improper political activity. Example. An incumbent official is in a battle with a challenger over the merits of a new government program that the challenger championed as head of a local nonprofit organization. The incumbent's webpage focuses primarily on this issue, asserting that the program will bankrupt the City and was drafted by a person who does not understand how government works and is only a tool of special interests. The webpage does not include any factual analysis to support these assertions, nor does it discuss any competing views.

CITY AND COUNTY OF SAN FRANCISCO
Memorandum TO: DATE: PAGE: RE:

OFFICE OF THE CITY ATTORNEY

ALL ELECTED OFFICIALS September 7, 2005 4 Use of City Resources for Electronic Newsletters, Constituent E-Mails and Blogs The official runs the risk that this communication may be viewed as political activity and not as informational activity because it is not a balanced, neutral presentation of information, and seems more directed at attacking the opposing candidate in the election. Example. An incumbent official is in a battle with a challenger over the merits of a new government program that the challenger championed as head of a local nonprofit organization. The incumbent official's webpage reports on both sides of the debate over the program, refers readers to the departmental reports submitted at the committee meeting on the issues, and the minutes of the meeting where it was adopted. The webpage discusses a number of other issues of interest to constituents and unrelated to the challenger. Because the discussion of the controversial issue is balanced and factual, consistent with the tenor of the rest of the webpage, the communication is not likely to be considered improper political activity notwithstanding that it addresses an issue in controversy in the election.

• STYLE Nothing in a government funded or supported electronic newsletter, webpage, blog, or other communication should include campaign literature, any reference to a campaign, or any link to campaign materials or websites. As the Supreme Court has observed, the use of public funds for campaign advertisements "unquestionably constitutes improper campaign activity." Stanson v. Mott, 17 Cal.3d at 221. Communications that look like campaign advertisements are likely to be viewed as political, rather than informational activity. Example. An incumbent official's webpage, entitled "Get Involved!,” has a list of announcements of interest to constituents, including new appointments to City commissions, upcoming hearings, and pending legislation. The webpage also has a picture of the incumbent. Campaign literature distributed by the candidate for his upcoming re-election bid consists of a one page flyer, with his picture, the phrase "Get Involved!," a list of legislative activities he has sponsored, and a plea to go to the polls and vote for him. Because the webpage looks very much like the official's campaign literature, even though the webpage pre-existed the campaign literature, the webpage will likely be viewed as improper political activity. Example. An incumbent official's newsletter regularly contains articles touting her achievements and asserting that her political opponent, who is also a City official, does not have the best interests of the City at heart and is only in office to line her own

CITY AND COUNTY OF SAN FRANCISCO
Memorandum TO: DATE: PAGE: RE:

OFFICE OF THE CITY ATTORNEY

ALL ELECTED OFFICIALS September 7, 2005 5 Use of City Resources for Electronic Newsletters, Constituent E-Mails and Blogs pockets. The two officers are not currently running against each other. The incumbent runs the risk that use of City resources to personally attack an opponent, even if neither individual is currently a candidate appearing on the ballot, will be viewed as political activity. While public resources may be used to provide information to the voters, that information must be presented in a factual and balanced manner. Personal attacks on a candidate or excessive promotion of a candidate, as distinguished from discussions of City policy, are not part of a balanced impartial presentation of information and raise the inference that the purpose of the communication is to influence the voters to vote for or against a candidate in a future campaign.

III. CONCLUSION Public resources are to be used for the public's business, as authorized by law. City officials may not use public resources to engage in campaign and other political activity. Distinguishing between permissible informational activity and impermissible political activity may at times be difficult. Presenting fair and balanced information to the voters will not be viewed as political activity and therefore public officials can avoid concerns about misuse of resources by confining their publicly financed communications to this type of content.