Recent Fair Campaign Practices Act Developments

Two recent administrative law judge decisions reflect that a Colorado government may violate the Fair Campaign Practices Act ('FCPA") prohibition on spending public funds to urge voters to vote for or against a ballot measure even if the government does not expressly advocate passage or defeat. Of significance to government officials and employees is that in one of the cases a county commissioner was ordered to reimburse the county general fund $1,000 as a result of the FCPA violation.

Section 1-45-117, C.R.S., provides that a Colorado government may not "expend any moneys from any source, or make any contributions, to urge electors to vote in favor of or against" most ballot measures. The statute contains some limited exceptions to the prohibition including an exception for dispensing "a factual summary, which shall include arguments both for and against the proposal." Some governments attempt to provide voters information about a ballot measure without arguments for and against the measure. Some administrative law judge decisions have held those efforts do not violate the FCPA prohibition because the government is not urging voters to vote for or against a measure. However, recent decisions from both administrative law judges and the Court of Appeals indicate that a communication may be so slanted as to violate the prohibition even if the government does not expressly advocate a yes or no vote.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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