After hearing arguments from the parties in California State Association of Counties & California School Boards Association v. Fair Political Practices Commission on Dec. 4, 2020, the superior court denied CSAC and CSBA’s petition for writ of mandate and declaratory relief on Dec. 14, 2020, declining to invalidate FPPC Regulations 18420.1 and 18901.1. While the court’s ruling denied CSBA and CSAC’s petition and request to enjoin the FPPC from enforcing the regulations at issue, the decision still offers some potentially important protections for governing boards and elected officials involved in educating the public about ballot measures.
In 2018, CSBA and CSAC sued the FPPC, the agency responsible for the enforcement of the Political Reform Act (PRA), which regulates campaign financing, conflicts of interest, lobbying and government ethics. The lawsuit alleged that the FPPC’s adoption and enforcement of some of its regulations exceeded the Commission’s authority.
Under California law, local governments cannot spend public monies to engage in campaign communications that expressly advocate for or against a ballot measure, but are permitted to inform and educate the public about an upcoming measure. Governing boards can play a critical role in educating and informing voters about ballot measures impacting the community.
FPPC Regulations 18420.1 and 18901.1 were issued after the Vargas v. City of Salinas case in 2009, and purportedly make television, electronic media and radio spots automatic or “per se” violations of the prohibition against spending of public dollars on advocacy, regardless of whether or not the communication is strictly informational. Restricting the use of these mediums regardless of the content of the message would seriously restrict the flow of information to voters. The FPPC further overstepped its authority by promulgating regulations to allow themselves, rather than the courts, to determine whether communications by government agencies are permissible.
CSBA sought to get the FPPC to rescind the regulations by sending FPPC an opposition letter in 2009 and formally petitioning for rulemaking in 2010. CSBA was poised to seek redress in the courts but refrained when the then FPPC Chair indicated that FPPC staff will not include the regulations in its enforcement efforts. Before the 2018 lawsuit, the FPPC had begun enforcing the regulations, potentially impacting how school boards or county offices of education can educate the public about ballot measures.
While the court denied CSAC and CSBA’s petition for writ of mandate and declaratory relief in its December 2020 decision, importantly for governing boards, the FPPC argued in court that, despite the language of the regulations, it does not interpret its regulations to mean that use of tv, radio and electronic media by government are automatic or “per se” violations of the prohibition against spending of public funds on political advocacy. The FPPC argued instead that communications made using tv, radio and electronic media will be evaluated on a case-by-case basis on whether the content of the message is campaign activity, regardless of the medium used.
Based on the FPPC’s assertion, the court found that there was not actual controversy for the court to decide, and declined to determine whether the regulations must be set aside or rewritten. While the court’s decision did not result in the FPPC being ordered to revise its regulations, the FPPC’s assertions in court should inhibit or “estop” the FPPC from enforcing its regulations to automatically prohibit governing boards from using tv, radio and electronic media to inform and educate the public about ballot measures.
Board members should note that whether a board’s activity is an appropriate use of public funds or an impermissible campaign activity is a complicated analysis. CSBA sample Board Policy 1160 contains guidance for boards on permissible and impermissible activities, and on unclear activities that do not fall into either category. When it is unclear whether a campaign activity is permissible, the court will analyze the activity based on its “style, tenor and timing” to determine whether it involves an appropriate expenditure of public funds. Districts should be cautious and ensure that any such informational material is an appropriate use of district funds.