Spring is in the air….and so is budget season! For Connecticut board of education members and administrators the annual budget ritual can be an exhausting and politically-delicate process. As important as it is to rally the troops and get the board’s budget passed, it’s also important for everyone in the school community to remember that there are special rules that apply to communications regarding referendums.
Connecticut General Statutes § 9-369b (“Section 9-369b”) specifically prohibit the expenditure of public funds “to influence any person to vote for approval or disapproval of any [referendum] proposal or question or to otherwise influence or aid the success or defeat of any such referendum,” and is enforced by the Connecticut State Elections Enforcement Commission (“SEEC”).
So what does Section 9-369b’s language mean in practice? The SEEC has developed a three-part test that serves as a useful framework for determining whether a particular communication regarding a referendum is legal. The SEEC’s test asks:
- Was the communication at issue made while a referendum was pending?
- Does the communication advocate?
- Was the communication made with public funds?
If the answer to all three of these questions is “yes” then the communication at issue is illegal under the statute, and the SEEC can order reimbursement to the district for the cost involved in creating and disseminating the communication along with civil penalties.
With respect to the first question, a referendum is only considered pending “when the last legal condition has been satisfied to ensure that the referendum will take place.” Generally, this will happen once the date for referendum has been set, but not always. If the conditions necessary to mandate a referendum vote have occurred, for instance, a regional district annual meeting adjourns to referendum but the precise date for the referendum vote has yet to be selected, a referendum is considering “pending.”
The SEEC takes an expansive view on the meaning of “advocacy.” According to the SEEC, “communications which urge a particular result, either by express wording of advocacy or when considered as a whole, would make the ordinary reasonable person believe that a particular result is urged, constitute advocacy.” In the Matter of a Complaint by George Zipparo, Redding, File No. 2013-093B. To this end, the SEEC considers “the entire communication and considers its style, tenor and timing.” In the Matter of a Complaint by Mary V. Gadbois, East Lyme, File No. 2010-123. “[S]tated threats of program cuts and dire consequences of failing to approve the referendum, as well as statements of need and justification . . . constitute implied advocacy.” In the Matter of a Complaint by Christine Campbell, Thompson, File No. 2017-020.
Lastly, the meaning of “public funds” within the SEEC’s three-part test is also interpreted broadly. The use of public funds does not just mean a financial expenditure from the board of education’s operating budget. “In-kind” expenditures like the use of district supplies, equipment and personnel can constitute the use of public funds under Section 9-369b. In this regard, messages supporting referendum passage posted on the district’s website or Facebook page may constitute a prohibited expenditure if the website or Facebook page is hosted on a district server that is in turn paid for out of public funds and/or managed by district employees.
Of course, with every rule there are exceptions. Section 9-369b expressly allows for the publication of “concise explanatory texts or other printed material” paid for out of public funds even while a referendum is pending. Such explanatory texts and other materials need to be neutral in character and they can only be prepared and disseminated upon the vote of the municipality’s legislative body, or, in the case of a regional school district, the regional board of education. In addition, before any explanatory texts or other materials are disseminated or posted they need to be approved by either the municipality’s or regional board of education’s attorney.
Section 9-369b also allows for the limited use of so-called “community notification systems” that electronically alert residents to community events or news even when a referendum is “pending.” Under the law, community notification systems may be used to apprise the public of a referendum’s time, location and question presented along with any approved explanatory text so long as use of the notification is authorized by the chief elected official of the municipality or chairman of the regional board of education.
Another exception to the rule allows for notifications reminding or encouraging voting at referendum that are included in regularly published newsletters such as a superintendent’s monthly letter to parents. In addition, children cannot be used as couriers to disseminate publications advocating for passage of a referendum while a referendum is pending, but time, place and location notices that are sent home in “backpacks” are OK regardless of timing.
Thankfully the SEEC has a very helpful guide (available here) on this topic on its website. The guide is a good resource for administrators and board members to consult whenever there is a question about whether a proposed communication might run afoul of Section 9-369b. It’s also important to check any potentially relevant board policies and the town code of ethics before disseminating a communication that could be seen as advocacy. Board policies on the use of school facilities and public statements of the board may impose restrictions, and ethics code language that prohibits public officials from conducting political activity with the use of public funds and/or with the assistance of public employees may also be relevant.
Lastly of course when all else fails it’s always a good idea to consult with your attorney!!
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