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RESTRICTIONS ON POLITICAL CAMPAIGNING
by PUBLIC EMPLOYEES, ORS 260*432
Issued By
Bill Bradbury
Secretary of State
Elections Division
141 State Capitol
Salem, Oregon 97310
Tel: 503-986-1518
Fax: 503-373-7414
Web: www.sos.state.or.us
January 2002
2002 Restrictions on Political Campaigning by Public Employees
Table of Contents
INTRODUCTION............................................................................................
1
OVERVIEW OF RESTRICTIONS AND ALLOWABLE ACTIVITIES .............................
1
Examples of Restrictions on Public Employees........................................................
2
Examples of Allowable Activities for Public Employees ............................................
2
SOMESPECIFIC SITUATIONS..............................................................................
3
1. Candidate Forums and Measure Debates held by Public Jurisdictions ....................
3
2. Distribution of Political Material within a Government Agency .............................
3
3. Governing Body Actions Before Issue Certified as Measure ..................................
3
4. Information about Election Matters Provided by Public Employees ........................
4
5. Legal Challenges by Public Jurisdictions...........................................................
4
6. Resolutions (Vote) by an Elected Governing Body, Advocating a Political Position....
5
7. Salaried (Management) vs. Hourly Staff............................................................
6
8. Telephone Calls...........................................................................................
6
9. Union Bulletin Boards...................................................................................
6
10. Use of Public Buildings, Facilities and Property .................................................
6
11. Use of Title of Public Employee........................................................................
7
12. Wearing of Uniform by Public Employee..........................................................
7
ELECTEDOFFICIALS...........................................................................................
8
WRITTEN MATERIAL RELATING TO MEASURES ..................................................
9
The Role of the Elections Division in Reviewing Documents ......................................
9
Factual versus Promotional Material Prepared by Public Employees ...........................
9
Determining Whether Material is Campaign Advocacy - Factors to Consider ................
9
Governing Body Ballot Titles and Explanatory Statements .........................................
13
Useof Signs or Banners......................................................................................
14
Websitesand Email...........................................................................................
14
Public Notice Required by ORS 260.432(3)..............................................................
15
Conclusions.....................................................................................................
15
Other Information Sources...................................................................................
16
ATTACHMENTS
Examples of Inadvisable Language....................................................................... 18
Statutes........................................................................................................... 19
Checklist for Reviewing Draft Documents about Ballot Measures ............................... 20
Attorney General Letter (10/5/93)
Public Employer Notice Form
RESTRICTIONS ON POLITICAL CAMPAIGNING
BY PUBLIC EMPLOYEES, ORS 260.432
(updated 1/25/02)
INTRODUCTION:
The purpose of this document is to provide the reader with guidance on how the provisions of ORS 260.432
(1) and (2) apply to public employees, public employers and elected officials. The information should be
viewed as a reference or starting point rather than a comprehensive list of all activities that could fall under
these statutes. It is our intent to give the reader a framework upon which to base decisions regarding
election -related activities. Further, we also extend the services of our office to provide prior review and
advice to public agencies and individuals on allowable actions. NOTE: Federal employees must also follow the
requirements of the Federal Hatch Act - including persons principally employed by state or local executive agencies in
connection with programs financed in whole or in part by federal loans or grants - check with your employer if you
have questions on applicability. See page 16 of this memorandum for contact information on the Federal Hatch Act.
STATUTES:
ORS 260.432 (1) states that a person - including public employers and elected officials - may not require a
public employee to promote or oppose any political committee or any initiative, referendum or recall
petition, ballot measure or candidate.
ORS 260.432(2) states that public employees (including school administrators, city managers, police chiefs,
etc.) may not be involved in promoting or opposing any political committee or any initiative, referendum or
recall petition, measure or candidate "while on the job during working hours." NOTE: This subsection does
not apply to elected public officials but does apply to all other public employees including the staff of elected public
officials. Public officials who are not elected- whether paid for their service or not - such as members of appointed
boards and commissions, are considered to be "public employees" for purposes of this statute.
ORS 260.432(3) states that each public employer must have posted - in all appropriate places where public
employees work - a notice about the prohibitions of ORS 260.432. See page 15 of this memorandum for more
information about this requirement.
OVERVIEW OF RESTRICTIONS AND ALLOWABLE ACTIVITIES
The overriding principle is that public employees
may not use their work time to support or oppose
measures, candidates, or petitions. A common
violation involves preparing or distributing written
material supporting or opposing a measure,
candidate, or petition.
Moreover, an elected official or any other employer
of a public employee may not require or direct
public employees to prepare or distribute such
materials. A work assignment made by a
supervisor to a subordinate public employee is a
command or requirement within the meaning of
ORS 260.432(1).
In fact, elected officials or other employers of public
employees should be aware that when they - in the
role of a supervisor - request a public employee to
perform any campaign activity (such as typing and
mailing a campaign related document) that the
request is considered to be an attempt to require
the public employee to perform those tasks. The
Elections Division has consistently found that in
the work place, a superior's request to a
subordinate is considered to be a command.
The following examples of restrictions and
allowable activities are not all inclusive; however
they do address a list of common concerns and
issues.
EXAMPLES OF RESTRICTIONS ON
PUBLIC EMPLOYEES
♦ Public employees may not be involved while on
their work time in activities such as collection of
funds, receipt and distribution of advocacy
materials, or preparation of correspondence on
behalf of political action committees or
candidates.
♦ Public employees may not assist with candidate
filing forms, voters' pamphlet filings,
contribution and expenditure (C&E) report
forms or related correspondence during their
work time.
♦ Public employees' work time may not be used to
produce or distribute political documents
advocating a vote for or against a measure, or
news releases or letters announcing the elected
official's support or opposition to a measure,
candidate, or petition.
♦ Public employees' work time may not be used to
post website information, transmit emails or
make a presentation that advocates a political
position.
♦ A public employee may not be involved in
producing or distributing a news release
announcing a candidate's filing which includes
reasons for support of the candidate, the
candidate's goals if elected, or other supportive
information.
♦ A public employee may not make outgoing calls
to schedule or organize campaign events or
other political activity on behalf of an elected
official or political committee.
♦ A public employee may not grant unequal
access to public facilities to candidates or
political committees.
♦ A public employee may not draft, type, format,
edit, sign or promote a governing body's
resolution (vote) that advocates a political
position. Additionally, they may not take other
related actions. (See specific information on
page 5).
EXAMPLES OF ALLOWABLE
ACTIVITIES FOR PUBLIC EMPLOYEES
Public employees may use personal time, lunch
hours, breaks, days off - when the employee is
considered to be off duty - for political activity,
dependent on other employer lunch/break
policies. However, any such activity must be of
a voluntary nature on the part of the employee.
In other words, employees who elect to use this
time for political activity must not feel obligated
or coerced to do so by co-workers or
supervisors.
Public employees may wear political buttons at
any time subject to applicable employer policies.
However, other activities such as displaying
campaign signs or distributing campaign
materials are not allowed during public
employee work time.
♦ Public employees may participate in the
planning stage of a governing body's proposed
issue, before it is certified as a measure to the
ballot, as this stage is not subject to ORS 260.432.
Research, public meetings, surveys and other
actions by a governing body to aid in the
decision making process of whether to refer a
measure to the ballot are not covered by the
statute.
♦ A public employee may use work time to
perform their standard job duties, such as
maintaining public records, opening mail and
taking the minutes of a public meeting,
including recording elected officials' discussion
and reasoning for adopting a resolution or
voting to support or oppose a measure (see page
5 for further discussion of such resolutions by a
governing body).
♦ A public employee may perform the follow-up
maintenance of public records and making
copies available upon request from the public,
in the same manner as staff would process any
other similar citizen request.
♦ A public employee may participate in an elected
official's campaign activity - on a voluntary
basis - during working hours using lunch hours
2
or any leave time, but they should document the
dates and times spent in a personal journal or
log book. The employee must accurately record
the use of the leave time on their payroll
worksheets.
♦ A public employee may, as staff of an elected
official, handle incoming calls about the
official's availability for political events.
♦ A public employee (or other person) may
impartially advise employees about possible
effects of a ballot measure, but may not threaten
them with financial loss to vote a particular
way.
♦ A public employee may address election -related
issues while on the job, in a factual and
impartial manner, if such activity is legitimately
within scope of employee's normal duties.
A public employee may, at any time, express
personal political views. This statute is not
intended to grant unconditional permission to
"express personal political views" in any way at
any time. A public employer may establish
policies restricting expression of personal
political views by employees where such
expression reasonably may be interpreted by
others as officially endorsed by the public
employer. Conversely, a public employer must
be cautious to not infringe on the public
employee's right to express personal political
views.
SOME SPECIFIC SITUATIONS
1. Candidate Forums and Measure Debates
held by Public Jurisdictions
It is not an election law violation for a government
jurisdiction to sponsor a candidate forum if it is open
to all candidates. All candidates filed for the same
office must be invited to participate (the candidate
forum is still acceptable even if a candidate chooses
not to attend). There must not be any intent to
promote or oppose specific political views,
candidates or issues. Similarly, a forum to allow
political proponents and opponents to debate ballot
measures may be held using public employee work
time if equal access is granted.
Under these circumstances, the public employee
work time used in arranging such a forum would not
be in violation of election law. The public employees
may perform normal job duties in conjunction with
the forum and may attend on work time as long as
they do not take any actions while on the job to
promote or oppose the candidate(s) or measure(s),
beyond facilitating the event. Further, it is not a
violation of election law for a candidate at such a
forum to discuss issues that may be a part of their
campaign.
It is helpful if the public jurisdiction has in place and
follows a policy on these types of situations. Such a
policy must be reasonable and impartial.
2. Distribution of Political Material within a
Government Agency
We routinely discourage the distribution of
campaign advocacy materials to public employees
through a government mail or distribution system,
regardless of the source of the materials. (NOTE:
Unions can distribute such materials to their members
pursuant to their contract.)
It is not a violation for a public employee, as part of
their regular job duties, to process incoming mail
that may include political material addressed to
employees. However, it is a violation of election
law for a public employee to distribute political
advocacy materials to other employees or
constituents (such as students) while on the job
during working hours.
If a public agency is given any election -related
material to distribute to employees or constituents
by any outside entity, the agency must vigilantly
screen the information prior to distribution to
assure it is not political advocacy.
3. Governing Body Actions Before Issue
Certified as Measure
ORS 260.432 does not apply to measures referred to
the ballot by a governing body until the governing
k?
body has certified the proposed issue to the ballot
as a measure. "Measure" is defined in ORS
260.005(12), as something that has been "submitted
to the people for their approval or rejection at an
election." The actions taken by a governing body
and its public employees in the planning stages of
a proposed measure, before it is certified to the
ballot, are not subject to ORS 260.432. Research,
public meetings, surveys and other actions by a
governing body to aid in the decision making
process of whether to put an issue on the ballot are
not within the purview of the statute. Once the
issue is certified to the ballot however, no public
employee work time may be used to redistribute
any material that advocates a political position on
the measure.
For initiative, referendum or recall petitions, ORS
260.432 does apply during the signature gathering
phase even before the proposed measure or recall
is certified to the ballot. While ORS 260.432 does
not prohibit public employees from any discussion
of the subject of an initiative or referendum
petition or ballot measure, a distinction must be
made between an act that supports or opposes a
petition or measure and the performance of duties
normally expected or required of a public
employee as part of his or her job. For instance, a
spokesperson for an agency, if interviewed by the
news media as part of the employee's normal
duties, may respond with factual information on
possible effects of a petition or measure. In this
case, the public employee must be cautious not to
imply to listeners that the employee or public
employer support or oppose the petition or
measure.
Public agencies and employees may provide
information on an issue that is also the subject of
an election petition or measure as long as the
information is factual, unbiased and appropriate to
the conduct of the agency's usual business. The fact
that information is an analysis of a petition or
ballot measure is not, in and of itself, unlawful
advocacy. Additionally, ORS 260.432 does not
prohibit the expression of personal political views.
4. Information about Election Matters
Provided by Public Employees
♦ A public employee may provide only impartial,
factual information related to an initiative,
referendum or recall petition, measure or
candidate as a part of the employee's job on
work time. For detailed information on
determining whether information is impartial,
see pages 9-13 of this memorandum.
♦ If any public employee makes public
presentations or speeches regarding an
initiative or referendum petition, or ballot
measure while on the job during working hours
("official duty") they must make sure the speech
is only factual and neutral in its presentation.
The criteria for written material discussed later
on pages 9-13 of this memorandum apply.
♦ A public employer can tell employees about the
possible effects of a measure, such as possible
layoffs; but the public employer must not
threaten employees with financial loss if they
vote one way or another.
♦ A public employee may address election -related
issues while on the job, in a factual and
unbiased manner, if such activity is legitimately
within the scope of the employee's normal
duties. For instance, the political process is a
subject that might reasonably be discussed in a
high school social studies class. In this context,
the focus on a specific election for illustrative
purposes is not inappropriate as long as the
employee's presentation of the material does
not support or oppose any particular candidate,
petition or ballot measure. Instructional
material must provide a balanced review of
both sides of an issue.
However, a student's work may express
political advocacy. If credit is offered to
students who voluntarily participate in a
political campaign (must be voluntary), this
would not be in violation of election law unless
students were instructed or urged by the public
employee to support or oppose a specific
candidate, petition or ballot measure.
5. Legal Challenges by Public jurisdictions
In general, public employee's work involvement in
legal court challenges such as challenging the
underlying legality of placing a measure on the
ballot are not in violation of ORS 260.432 - it is not
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the same as opposing the measure itself. Examples
of such legal challenges include whether an
initiative petition meets constitutional
requirements and whether a ballot title complies
with statutory standards. However, this does not
mean that this type of action would be viewed as
an allowable use of public funds by the public
jurisdiction, which is an issue not under the
Secretary of State's authority.
6. Resolutions (Vote taken) by an Elected
Governing Body, Advocating a Political
Position
♦ A public employee, in regards to an elected
governing body's resolution that advocates a
political position:
• May not draft, type, format or edit the
resolution. (Edits to insert the appropriate
jurisdiction's name and board member
names are allowed.) Such a resolution
should be drafted and prepared by a
member of the elected board or someone
who is not a public employee;
• May not prepare or give recommendations
to the governing body urging which way to
vote on such a resolution;
• May not sign such a resolution, except if the
employee's signature is only ministerial and
clearly included to attest the board took the
vote. Language labeling the signature as
such must be included;
• May not use work time to prepare a news
release or other announcement of the
resolution;
• May not announce the governing body's
position on such a vote to the media in an
advocating manner (employee may respond
to direct questions from media about the
resolution by impartially stating the board's
vote); and
• May not include the position or vote on
such a resolution in a jurisdiction's
newsletter or other publication (the only
exception is in a regularly published format
that lists all resolutions and action items at
the board meeting in an impartial manner).
♦ Note: A board or commission consisting of
appointed members are considered to be public
employees for purposes of ORS 260.432.
Therefore, they may not act in official capacity
to pass a resolution advocating a political
position.
♦ A public employee, in regards to an elected
governing body's resolution that advocates a
political position:
• May use work time in an incidental way to
record the vote if that is part of the
employee's normal work duties. For
example, a public employee may take the
board's minutes and, in a clerical manner,
incorporate amendments into a finalized
version of a governing body's resolution on
an issue;
• May prepare strictly neutral, factual
information for a board to use in taking a
position on a measure, such as financial
impacts of a ballot measure;
• May be available at the board meeting to
offer neutral information about a ballot
measure to the board upon the board's
request;
• May make copies of the proposed resolution
and include the drafted resolution in the
board packet to be distributed as usual
before the board meeting;
• May prepare impartial information that
indicates the impact that a ballot measure
would have on the jurisdiction;
• May, following passage of a resolution,
retype the resolution to conform to the
jurisdiction's usual resolution format and
place the resolution and related documents
into the official public record of the meeting;
and
• May fill public record requests as usual.
♦ Activities beyond these, related to the elected
official's vote, or that are intended to help in
implementing a campaign strategy in some
way, are not allowed on the public employee's
work time.
♦ Elected officials may not request public
employees perform prohibited activities as
outlined above. They may not compel public
employee staff to become involved in a ballot
measure campaign.
5
7. Salaried (Management) vs. Hourly Staff
Salaried employees' work time is not as easily
measured as that of hourly workers. Salaried
employees must be careful during all
appearances both after normal work day hours
as well as during working hours. They must not
advocate on behalf of, or against a petition,
measure or candidate if they are considered to
be in their "official capacity."
For example, if the salaried employee applies
for expense reimbursement for the function, it
would indicate that they were "on duty."
NOTE: If complaints of this nature are received by
the Elections Division, we will investigate whether
or not the activity was undertaken in the employee's
official capacity.
Personal note -keeping by salaried employees is
suggested. Recording when the employee is on
or off duty can determine whether they are
acting in their 'official capacity." Also, during
public appearances, the employee should
specifically announce to the audience in what
capacity they are speaking.
It is important to recognize that "regular
workday" may not be definable for a position,
or may not have a specific time period but is
based on the activities and whether the person
is acting, or appears to be acting, in an official
capacity. The employee may need to define this
with their employer. It would be up to the
appointing authority or employer to determine
what is considered the "regular workday" and
what time would be considered his or her own
time, when the person would be able to support
or oppose a candidate, measure or political
party.
For instance, in the case of a school
superintendent, at all school board meetings
and school functions they would be considered
acting in official capacity based on their
administrative and management position.
8. Telephone Calls
♦ The handling of incoming calls about the
elected official's availability for political events
is permitted because the elected official's
scheduler must be aware of the elected official's
schedule.
♦ Elected official's staff should not make outgoing
calls while on the job during working hours to
solicit political scheduling opportunities for the
elected official, organize campaign events,
communicate on political matters with the press
or constituents, or initiate any other political
activity on behalf of the official.
♦ Additionally, incoming calls about measures
must be answered in a strictly factual manner.
9. Union Bulletin Boards
Public employee unions are allowed to have a
designated bulletin board to post information
regarding union business. The contents of those
bulletin boards are regulated only by collective
bargaining agreements.
10. Use of Public Buildings, Facilities and
Property
ORS 260.432(2) prohibits only the use of a public
employee's work time for campaign activities
while on the public payroll, and does not regulate
the use of public facilities or property for election
purposes. If the governing body allows one
political group to use public facilities, all groups
should have the same opportunity. The same
building policy should be used for everyone,
including charging the same fee or requiring the
same permit. If unequal access is granted, a public
employee who facilitates such services may have
committed an election law violation. It is not an
election law violation for a public facility to have
policies exceeding the requirements of election
law.
ORS 294.100 provides a limited remedy for
complaints and concerns about possible
inappropriate use of public resources, which may
involve a civil suit by the District Attorney or
taxpayer. ORS 294.100 is not under the Elections
Division's jurisdiction.
Questions sometimes arise about campaign signs.
Oregon election law does not address the size,
location or timing of political campaign signs.
G1
Many local jurisdictions (cities and counties) have
ordinances that address these issues. In addition,
the Oregon Department of Transportation has
policies regarding political signs on public
highways (see contact information on page 16).
Although this office cannot generally offer advice
as to the applicability of these provisions to
particular locations, there is a concern that public
employees enforce such regulations in an equitable
manner so as not to indicate any support or
opposition to political candidates or issues.
Campaign signs on or in public buildings or
property may be against the public facilities
building policy, which is not under this office's
jurisdiction. To indicate an election law violation
there would have to be evidence of public
employee involvement while on the job during
working hours in the placement of the sign, and/or
allowing unequal access to the placement of such
signs to all sides of an issue or to any candidate.
Most public jurisdictions wish to avoid the public
perception of the jurisdiction's endorsement and so
have a policy of not allowing campaign signs on or
in the public building, property or on public
equipment.
Similarly, placement of campaign signs on public
vehicles is inadvisable, although again not
necessarily an indication of election law violation.
Campaign signs on private vehicles located at a
public building are not within the purview of
election law. Public employees should take caution
in this area - there may be circumstances in which
an election law violation occurs.
Another related question is about the use of public
vehicles during campaign activities. An elected
official is not in violation of election law to use a
public vehicle for campaign purposes - but may be
subject to the jurisdiction's policies and may violate
Government Standards and Practices laws. Similar
to the above advice, it is not an election law
violation for public employees on off -duty time to
use a public vehicle for campaign activities - but
again, they would be subject to the jurisdiction's
policies and these activities may also violate
Oregon Government Standards and Practices laws
in ORS Chapter 244 (OGSPC contact information on
page 16).
Another issue that arises about public property is
the use of official government letterhead for
political purposes. For the reasons explained above
about the limits of ORS 260.432, such usage is not in
and of itself a violation of election law. In order for
a violation of ORS 260.432 to be found with regard
to a campaign publication on official government
letterhead, public employee work time would have
to have been used in its production and/or
distribution.
Connected to this issue is use of the Oregon State
Seal. ORS 186.023 governs the use of the Oregon
State Seal. Elected officials are entitled to use the
state seal in their official capacity, but not in their
capacity as candidates for public office. The state
seal may not be used in connection with an
individual or organization if its use implies
endorsement or sponsorship of the State of Oregon.
11. Use of Title of Public Employee
It is not an election law violation in and of itself for a
public employee's working title to be included in a
campaign publication or in an editorial letter if either
was written or produced on the employee's personal
time (with no on-the-job assistance of other public
employees).
If someone else (such as the media) refers to a
public employee by the employee's title on the
person's own initiative and without consulting the
public employee, that in itself would not suggest a
violation of election law by the public employee.
12. Wearing of Uniform by Public Employee
A question often arises as to whether it is an election
law violation for a public employee to wear an
official uniform (such as that of a law enforcement
officer) outside of the employee's work hours and
not at work - in the context of political activity of
some kind. Obviously, the public would identify the
uniform with the position.
ORS 260.432 does not address the use of public funds
or facilities and so it would not be a violation of ORS
260.432 for a public employee to wear their uniform
on personal time during political activities. However,
it would likely be against the employer's policies and
in many cases inadvisable. Our office does not
arbitrate disputes between such policy and
7
procedures and employees over matters not related
to state election law.
As stated in this memorandum, if the employee is
salaried, they must be careful not to advocate if they
are considered in their "official capacity" and must be
able to provide such documentation if a complaint
were filed.
Notwithstanding this advice, it is important to
understand why the public may perceive that an
election law violation has occurred in such a
situation. The public perception that an employee is
on duty because they are in uniform is
understandable. When a member of the public views
a public employee participating in an otherwise
prohibited activity while they appear to be in their
official capacity, it raises questions.
Contributing factors to this perception, even though
not in themselves a violation of election law, may
include:
• The public employee is photographed in a work
setting;
• Whether the public employee is wearing a
uniform;
• The literature identifies the public employee by
their work title; and
• The content of the literature in which a photo of
the public employee appears may imply a
personalization or support of the candidate by
the employee or employer, which could
contribute to the public perception of a possible
violation.
ELECTED OFFICIALS
An elected official may personally advocate for or
against candidates or measures on the official's
work time. They are not considered a "public
employee" for purposes of ORS 260.432. NOTE: A
person appointed to fill a vacancy in an elective public
office is considered an elected official for purposes of this
statute.
Oregon election law does not prohibit elected
officials from communicating with their
constituents about election issues. However,
caution must be taken by elected officials to not
involve public employee's work time in any
activities that could be construed to be supporting
or aiding an advocacy campaign effort, such as
preparing advocacy material on behalf of an
elected official (i.e. speeches, letters, advertising
pieces). An elected official's opinion piece or letter
advocating a political position may not be
published in a jurisdiction's newsletter or other
publication produced or distributed by public
employees.
For instance, public employee support staff may
not prepare press releases or constituent mail that
advocates a vote, candidate filing forms, voters'
pamphlet filing forms, contribution and
expenditure (C&E) report forms or related
correspondence during their work time.
Elected officials, as part of a governing body, may
vote with other elected officials (such as a school
board, city council or county commission) to
support or oppose a measure, and publicly discuss
such a vote - but must not use the public employee
staff time to assist in this, except for ministerial
functions.
Furthermore, care must also be taken in soliciting
"volunteer help" during employee breaks, or other
personal time, as the employee may feel required
to participate. A request made by a person in a
position of supervisor or superior is viewed as a
command for purposes of this election law.
Oregon election law does not prohibit an elected
official, during the time when the official runs for
re-election or for another public office, to
discontinue activities that are a regular part of the
elected official's duties - such as updates on official
business. This office does not find that all
communication from an elected official, based only
on the timing of the communication in relation to
an election, necessarily means that the
communication is campaign advocacy for their
candidacy. In such cases, the public employees
participating in the publication would not be in
violation of ORS 260.432.
0
WRITTEN MATERIAL RELATING TO MEASURES
THE ROLE OF THE ELECTIONS DIVISION
IN REVIEWING DOCUMENTS
This office may need to review individual
documents to determine if they must be considered
advocacy material. In our review of such materials,
we do not know whether all of the information
presented in such a publication is accurate, but it is
presumed accurate for purposes of the review.
However, there would be a possible violation of
ORS 260.432, if an elector filed a complaint with us
that a public body presented inaccurate
information that caused material to be considered
advocacy.
This office offers to review draft documents prior
to publication and issue an advisory letter with
suggested changes with the goal of assuring the
publication is impartial. However, we must offer a
general caution that if a written complaint is filed
with this office alleging violations of election law
about a publication by a governing body, we will
take all factors into consideration when examining
the publication and surrounding circumstances.
The complaint may bring forth surrounding facts,
circumstances and information that are not within
the purview of this office to know prior to a
complaint. For instance, we cannot advise an
agency on whether any critical piece of information
is missing in the drafted information about the
measure that a reader may perceive as affecting
their position on the measures, and thus could be
deemed to reflect on the information's neutrality.
Therefore, we must caution that compliance with
the suggestions does not preclude further review of
the publications this office in the event such a
complaint is filed.
FACTUAL VERSUS PROMOTIONAL
MATERIAL PREPARED BY PUBLIC
EMPLOYEES
♦ Written material prepared or distributed by
public employees must be impartial.
"Impartial" means equitable, fair, unbiased and
dispassionate. The material needs to contain a
balance of factual information. This means that
the material may not lead the voters to support
or oppose the measure by selective use of
factual material, even if the material does not
expressly urge a yes or no vote.
♦ The material may be determined to be advocacy
if, when read in its entirety, it appears to be
intended to generate votes for or against the
measure. A reader should finish reading the
information and think, "I have learned
something about the measure," not, "Now I
know why I should support (or oppose) the
measure."
♦ The distinction between strictly factual
information about ballot measures and material
that is considered to be promoting or opposing
a measure must be made by reviewing the
entire material, in the context of the
presentation. We note that a publication that
purports to contain only factual information
may not necessarily be impartia.1 if the "facts"
are presented in a persuasive manner.
♦ According to the Attorney General in a letter
dated October 5,1993, "public bodies may use
public funds to inform voters of facts pertinent
to a measure, if the information is not used to
lead voters to support or oppose a particular
position in the election." It goes on to state,
"However, we also have pointed out that
'informational' material may be found to
'promote or oppose' a measure even if it does
not do so in so many words if the information
presented to the public clearly favors or
opposes the measure and, taken as a whole,
clearly is intended to generate votes for or
against a measure."
DETERMINING WHETHER MATERIAL IS
CAMPAIGN ADVOCACY:
Some factors that will be considered in making the
determination of whether the material is advocacy
include, but are not limited to, the following:
NOTE: Any of the factors listed below, viewed in
0
isolation, may not be sufficient to reach this conclusion.
However, taken as a whole, the combination of factors
may indicate that the material is campaign advocacy.
a) The timing of the publication relative to the
election may, in some situations, be a factor if
material is not typically published except at the
time of an election and the information can be
construed as advocacy.
Example: A special district produces a
newsletter published shortly before a March
election at which incumbent board members are
candidates and the newsletter prominently
features photographs of all of the current board
members. Whether or not this newsletter is
considered advocacy for the candidates must be
made based on a review of the entire
newsletter. At a minimum, the newsletter
should not address the fact that some of these
board members are also candidates at an
election and should not include any
information that could be perceived as
advocacy for a candidate.
b) The balance of factual information and
whether any negative (or positive) facts are
mentioned at all. This does not necessarily
mean an equal number of facts on either "side"
must be mentioned. Documents about ballot
measures published by public governing bodies
should not be one-sided, but should fairly and
impartially set out known advantages and
disadvantages of a proposal.
Example: If a measure proposes to affect taxes
and authorize the additional tax increases to
pay for them. This type of explanation of costs
involved and how funds would be used is
considered factual information and adds a
balance to the information.
An example of advisable language explaining a
measure's effect on taxes is, "Passage of Measure
37-88 would result in an increase in property taxes
of $1.25 per year per $1,000 of assessed value. For
the average homeowner in Everyday City with a
home assessed at $150,000, the annual property tax
increase would be $200."
c) The overall impression a reader gets after
reading the material should be an impression
that neutral facts have been presented. The
impression should be that the material is being
presented to inform the voter rather than
persuade them.
Information that is only speculative should not
be included, as it tends to be persuasive. We
advise steering away from theoretical,
subjective and opinionated content. For
example, the following speculative statements
are inadvisable, "Having modern computer
software available will result in greatly enhanced
test scores, improved attendance, faster learning of
new skills, a lower drop -out rate, and an increase in
college and training school attendance." Unless the
document provides some sources and
substantiation for these speculative statements,
we advise they lend too much enthusiasm and
persuasiveness to the information.
or fees, the specific cost of the measure to an Whenever appropriate, we advise the inclusion
individual taxpayer or consumer should be of citations to source information, such as
included. Also, if appropriate, we suggest that specific case studies. Statements such as
the amount of yearly taxes based on the average "District Schools are overcrowded," need a basis
price of a home in that community is included. either included or referred to. Do not include
(The "average price" should be a realistic figure such sweeping statements such as, "Many cities
- too low a figure could result in a misleading drink from rivers that are in much worse shape than
estimate biased towards the measure.) The the Crystal River, using treatment technology far
information should be clear whether it is an less comprehensive and modern than what is
increase in current taxes. proposed for Everyday City by Measure 29,"
without providing some substantiating
Also, if the information is specific as to what the information or citation to authority to which a
funds would be used for, it is then voter might refer to confirm the statements.
appropriately left up to the voters to decide if
they want to implement the described effects
10
Additionally, we advise caution when
including comparisons (listing pro and cons for
a measure) and purporting to speak on both
support and opposition sides. Any such
formatted information should be impartial and
as inclusive as possible.
d) The tone of the publication should be
dispassionate rather than enthusiastic for one
side of the measure. The material should not
include only statements regarding the possible
favorable (or unfavorable) effects that passage
of the measure would have. The public may
perceive information as persuasive or
threatening if it presents dire consequences that
are bound to elicit strong public response. For
example, information that a "levy would allow a
program to continue" is a more neutral statement
than saying "failure of the measure will destroy the
program."
The information should be a description of
what the measure does, an unbiased statement
of objective fact, not a justification of why the
measure is needed. Additionally, we advise
avoiding glowing commentary on the
jurisdiction that would benefit from a measure's
passage, as this lends a tone of "We are great so
you should support this measure..." to the
information.
e) Documents should not be personalized or use
personalizing pronouns. We advise against
providing information about a measure in a
personalized format, such as a letter format
addressed to "Dear Parents;' customized for
each area, and then signed by a public official.
Rather, to ensure the neutrality of information
about a ballot measure offered by a governing
body, the information should be generic. A
signed letter from a public official, who may be
personally known by most constituents
receiving the information, may evoke more
empathy, enthusiasm and emotion than would
a generic fact sheet on a ballot measure.
Additionally, such information should be made
available to all voters in the jurisdiction, not
just to certain constituents.
Along these lines, we advise that the use of
personal pronouns, such as "our," "we," 11,11
"us," etc., lend a tone of "we are in this
together" to a document and personalizes it,
rather than the neutrality needed in an
impartial informational document about a
ballot measure. Therefore, we suggest that such
words be changed to less personal words, such
as "the," "it," "the district," "the board;' "voters,"
"taxpayers," or "constituents."
Finally, rather than terms such as "neighbors,"
"friends," or "patrons," we advise more using
neutral terms such as "voters," "taxpayers" or
"constituents."
f) Documents should not, in most contexts, use
the word "will" in describing the results of
passage of the measure. The word "would" is a
better alternative as it suggests that voters have
a choice and the issue is not yet decided. The
use of the word "will" suggests a desired
outcome of passage of the measure and that it is
set to happen. We note that in some cases, the
use of the word "will" is appropriate based on
the context - if it is not dependent on the
measure's passage (such as "The election will be
held on May 15, 2002. ")
g) Documents should not, in most contexts, use
the word "need" in describing the purpose of
the measure. Often times the word "need(s)" is
more emotionally charged and can be
interpreted to be a favorable statement about
the measure. It has an element of urgency that
is not appropriate in a factual, neutral piece.
Basic facts about a measure should be offered,
so that the voters may make their own
assessment of what is "needed."
h) Headings or lead lines should not lend a
positive (or negative) tone to the material, in
favor or opposition to the ballot measure. This
also applies to the usage of positive or negative
connotations given by words or phrases. An
informational publication should not be
emotional, enthusiastic or persuasive. NOTE:
Some examples of inappropriate words and phrases
in publications about ballot measures produced by
governing bodies and the reasons they are
inappropriate are listed in an attachment to this
memorandum.
11
i) Quotes about the measure should not be
included. Likewise, lists of members of a
political committee or others supporting or
opposing the measure should not be included.
This holds true even if a quote is from a
government body's elected official. The use of
such quotes and lists indicate an endorsement
similar to campaign advocacy material and is,
therefore, inappropriate. Again, it is imperative
that publications produced and distributed by
public employees be impartial, informational
documents.
j) The use of graphics, checkmarks and
photographs. Checkmarks are often used as an
indicator of what someone should do, and have
a very positive implication. Checkmarks are
also used in informal ballots and surveys that
people complete by checking to indicate their
choices. Therefore, we advise against the use of
checkmarks in material about ballot measures
produced by a government entity because the
use of checkmarks significantly contributes to
an effect of advocacy. For the same reasons, we
advise against the use of positive graphics (such
as a hand placing a ballot in a ballot box) in
material about ballot measures produced by a
government entity.
Along the same lines, photographs used in a
document should not be overly emotional. In an
informational document it is important that
photographs do not add to a tone of advocacy.
Plain text without pictures lessens the
likelihood that readers feel they are being
persuaded to empathize with the depicted
situation and thus to support or oppose the
measure.
k) The use of phrases similar to campaign
slogans. Informational documents should not
contain phrases that do not serve to present any
factual information, but rather are a sort of
motto, logo or catch phrase; in a way a "rallying
cry." Some examples might be, "Help plan for
the future," "Preserve Our Heritage, Guide Our
Future," or "Our schools are an intelligent
investment." These phrases are not impartial
and informational, but are advocacy.
The use of such a motto or logo outside the
context of an election would not result in an
election law violation. However, used in the
context of an election, they are, in effect, a
campaign slogan promoting passage of the
measure. Such "campaign slogans" are
appropriately used by private political
committees, but not by government agencies in
publications about ballot measures.
1) Information about how to contact the
supporting or opposing political committee
(PAC), such as listing the PAC's phone number,
may imply a connection between the governing
body and the petitioners or supporters of the
measure. However, if all PAC's are listed, both
supporting and opposing, it may lend to the
balance of the document.
m) Reporting of an elected official's position on a
ballot measure or an elected official's article
advocating a position on a measure should not
be included in a publication using public
employee work time. A publication produced
using public employee time may only include
facts about a ballot measure, not who supports
or opposes the measure. Such inclusion would
lend an implication of "I/we support/oppose
this measure and so should you..."
For example, do not include, "The Anywhere
School Board position on Measure 789: Oppose."
The only time it would be acceptable for public
employee work time to be used in a publication
including such a position, would be in a
regularly published format in which all
resolutions and action items occurring at the
board meeting are reported. Even in this case,
the reporting must be done in a neutral manner.
This also pertains to articles by elected officials
advocating a political position. Even though an
elected official may use their own work time to
advocate a political position, such an article
may not be included in a document produced
and/or distributed by public employees on
their work time.
n) Information about the "50% voter turnout
requirement." In 1997, Ballot Measure 50 was
passed, amending the state constitution. The
Constitution now requires that the passage of a
12
measure to approve new or additional ad
valorem property tax levies be obtained at an
election where the number of electors casting a
ballot is not less than 50% "of the registered
voters eligible to vote on the question." This is
the case for every election except for the general
election during an even numbered year.
It has become common for governing bodies to
include some information about this
requirement in their publications about ballot
measures. It is not considered advocacy to
include strictly neutral, factual information
about this requirement. Encouraging people to
vote is an accepted practice of election officials
and other public officials; however, that is
different than encouraging passage of a
measure.
The concern here is that this information should
not be worded in such a way that it persuades
voters that they must vote for the measure
"now."
For example, we suggest that publications not
include the phrases "double pAori, " or "super
g*ori ." These phrases have strong political
connotations, so may lend themselves to the
implication that the district is suggesting that a
voter must pass the measure now.
Merely stating, "If fewer than 50% vote, this
election will not count," overstates the case and
implies people must vote. If the measure does
not pass, the turnout requirement does not
apply and the election still "counts." Only
passage of the measure would not be in effect if
the turn -out is less than 50% of eligible voters,
even if a majority of affirmative votes for the
measure. Either way, the elections results
would still be "valid."
Some suggested, acceptable language for this
requirement is:
• "For this measure to be enacted, it must
receive a majority of the votes cast and
voter turnout must exceed 50% of the
registered voters in the district (or
county, city...)."
• "Passage of the measure requires that it
receive a majority approval of those
voting on the issue. In addition, voter
turnout at the election must exceed at
least 50% of eligible electors."
o) Finally, the contents of the document must not
explicitly urge a yes or no vote for the measure
in that there should be no "vote yes" or "vote
no" type language. For example, the document
should not include phrases such as:
• "Vote Yes on Measure 99,"
• "Support for Measure 99 is encouraged,"
• "Measure 99 asks ABC County voters to
authorize a temporary fee increase,"
• "The County is asking voters to approve
funding that will maintain,"
• "Why Should I Vote for Measure 99?"
• "At election time, please support the Home
Rule Charter," and
• "On May 15, 2002, Anytown voters are
being asked to continue their support of the
community youth by renewing the Youth
Action Levy, Measure 57."
The rest of the text of a publication does not
cancel out such a statement. That is, a document
that is otherwise totally factual, balanced and
neutral, yet includes a sentence such as the ones
above, would most likely result in our
determination of a violation of state law.
GOVERNING BODY BALLOT TITLES AND
EXPLANATORY STATEMENTS
Ballot titles:
This office has been requested in some instances to
review ballot titles pertaining to a local governing
body measures. For state and local measures, ORS
250.035 (1) (c) states that the ballot title summary
must be, "A concise and impartial statement of not
more than 175 words summarizing the measure
and its major effect." (Emphasis added.)
This offices' review of a governing body's ballot
title for a measure (caption, question and
summary) is limited to whether the content is
sufficiently impartial in accordance with the
standards used in reviewing for possible violations
of the election law ORS 260.432. The other
13
standards a ballot statement must meet as stated in
ORS 250.035, that the statement must be concise,
not more than 175 words and summarize the
measure and its major effect are not within the
purview of this office. The governing body's legal
counsel is responsible for such advice.
Explanatory statements:
ORS 251.345 states that the governing body for any
electoral district that has referred a measure to the
voters shall submit "an impartial, simple and
understandable statement explaining the measure
and its effect." (Emphasis added.)
It is noted that the Secretary of State's review of any
draft explanatory statement intended for a voters'
pamphlet is limited to whether the contents are
sufficiently impartial in accordance with the
standards used in reviewing for possible violations
of the election law ORS 260.432. The Secretary of
State does not provide a service of reviewing local
governing body's draft explanatory statements for
the other standards they must meet as stated in ORS
251.345 - that the statement must be simple and
understandable and explain the measure's effect.
The local governing body and its' legal counsel are
responsible for meeting these standards, because
they require a comprehensive knowledge of the
measure and its surrounding facts and
circumstances not available to this office.
USE OF SIGNS OR BANNERS
Signs and banners allow for only a few words to be
read quickly at a distance, and often include
graphics, so there is a need for discretion. There is
not much opportunity to balance the document
because of the few words used, and the few words
have a lot of impact and focus. For signs and
banners, we advise special caution about using
checkmarks or graphics, or "campaign slogans" as
discussed above.
WEBSITES AND E-MAIL
Website and e-mail usage are becoming another
common method of communication for governing
bodies. Therefore, a public agency must have
proper safeguards and oversight necessary to
maintain the integrity of an official web site to
assure the contents do not reflect political
advocacy. Each agency must make it a priority to
insure that all personnel are apprised of the
restrictions on political campaigning by public
employees.
Public agencies should advise their employees of
the proper and improper use of websites and e-
mail in regards to political activity.
An e-mail that is supporting or opposing a
petition, candidate or measure that is sent on a
public employees' work time to a group of other
employees of an agency or others would be a
violation of election law by the public employee
who wrote and sent it. Any public employee who
uses work time to produce a website that is
political advocacy would be in violation of election
law. Whoever is ultimately responsible for the
website would also be responsible for its content.
14
PUBLIC NOTICE REQUIRED BY ORS 260.432(3)
Each public employer must have posted - in all appropriate places where public employees work - a notice
about the prohibitions of ORS 260.432. A copy of this notice is enclosed. You may make copies of this notice
to distribute and post if you have not already done so. It is the same language as the notice distributed in
2000.ORS 260.432(3) states, "Each public employer shall have posted in a conspicuous place likely to be seen by its
employees the following notice in printed or typewritten form:
ATTENTION ALL PUBLIC EMPLOYEES:
The restrictions imposed by the law of the State of Oregon on your political activities are that "No public
employee shall solicit any money, influence, service or other thing of value or otherwise promote or
oppose any political committee or promote or oppose the nomination or election of a candidate, the
gathering of signatures on an initiative, referendum or recall petition, the adoption of a measure or the
recall of a public office holder while on the job during working hours. However, this section does not
restrict the right of a public employee to express personal political views."
It is therefore the policy of the state and of your public employer that you may engage in political activity
except to the extent prohibited by state law when on the job during working hours."
CONCLUSIONS
We caution all government entities, elected officials
and public employers to be vigilant in ensuring that
no public employee work time is used in any activity
that could be construed as support of or opposition
to a candidate, initiative, referendum or recall
petition, or ballot measure, apart from the expression
of personal political views. While it is understood
that a government entity may have much at stake in
matters relating to an election, it has a responsibility
to ensure that its activities and those of its employees
comply with election laws.
One additional statute, that all public bodies should
be aware of, is ORS 294.100. It is "unlawful for any
public official to expend any moneys in excess of the
amounts provided by law, or for any other or
different purpose than provided by law." However,
since this is not an election law, these complaints are
to be filed with/by the District Attorney or by
taxpayer suit. The suit would have to prove the
expenditure constitutes malfeasance in office or
willful or wanton neglect of duty.
Lastly, we want to extend an offer to governing
bodies to review any draft material about ballot
measures prior to its publication. We hope the advice
we offer will be helpful and prevent concerns or
complaints by the public. If you have any questions,
please contact this office.
If you have questions about these or other election laws, please contact the Secretary of State, Elections
Division or your local elections office. Election officials are dedicated to helping citizens, public officials,
candidates and political committees comply with Oregon law. Contact these offices to assist you with any
questions.
Secretary of State/Elections Division
141 State Capitol, Salem, OR 97310-0722
tel: 503-986-1518, fax: 503-373-7414
web: www.sos.state.or.us
15
OTHER INFORMATION SOURCES
For questions regarding federal candidates or federal election
regulations, contact:
Federal Elections Commission
999 E.Street NW
Washington DC 20463
Phone:1-800-424-9530, Fax: (202) 219-8500
Website: www.fcc.gov
For questions regarding enforcement of Oregon's government
ethics and lobbyist registration laws contact:
Oregon Government Standards and Practices Commission
100 High Street SE, Suite 220
Salem, OR 97310
Phone: (503) 378-5105
Website: www.gspc.state.or.us
For questions regarding political signs that are visible from state
highways contact:
Oregon Department of Transportation
135 Transportation Building
Salem, OR 97310
Phone: (503) 986-3656
For questions regarding the Federal Hatch Act, applicable to
federal employees, (including persons principally employed by state or
local executive agencies in connection with programs financed in whole or
in part by federal loans or grants - check with your employer if questions
on applicability).
U.S. Office of Special Counsel
1730 M St. NW, Suite 201
Washington, D.C. 20036-4505
Phone: 1-(800) 854-2824
Website: www.osc.gov
For questions about county elections, contact information is
available at:
Go to Website: www.sos.state.onus - select link to "Elections," then
select link to "Federal, State & County Officials."
16
ATTACHMENTS
Examples of Inadvisable Language
Statutes
Checklist For Reviewing Draft Documents About Ballot Measures
Attorney General Letter (10/5/93):
Statutory Restrictions
Public Employer Notice Form
17
EXAMPLES OF INADVISABLE LANGUAGE
Following are some examples of inappropriate words and phrases, along with the reasons they are
inappropriate, in publications about ballot measures produced by governing bodies. This list is not all-
inclusive but will help provide additional guidance in assuring impartiality. (Emphasis added in each
example.)
• "With this measure you will pay the same low amount," "You will still get the same grgat service," and
"Passage of this measure is critical as the needs of our district are urgent." Adjectives that qualify such as
"low" and "great" included in these sentences are not necessary to relay the factual information, rather
they serve to add a persuasive tone. Informational documents produced by governing bodies should be
as dispassionate as possible, even if the adjectives used are accurate. Other adjectives that may be
inappropriate are "serious," "critical need" and "important." In an informational document the reader
should be left on their own to come to the conclusion that the issues are important, rather than the
information including impassioned descriptions.
• "Maintenance of library funding is requested," or "Measure 99-72 is a request for voter approval of a
revenue bond to pay for construction of the first phase." The word "requested" and the phrase "request
for voter approval" are suggestive of appeals in favor of the measure. Suggested alternatives are, "The
purpose of the levy is to maintain library funding" and "Passage of Measure 99-72 would authorize a
revenue bond to pay for construction of the first phase."
• "This measure will renew the support for public libraries." Use of the phrase "support for" lends a
positive tone in favor of the measure. A suggested alternative is, "The levy is being proposed to maintain
library funding for three more years..."
• "The county is asking voters (or The county seeks authorization) to approve funding that will maintain
the current level of services." This wording is persuasive as it implies that the county is asking voters to
approve the measure. A suggested alternative is, "Measure 99-84 is proposed to maintain the current
level of services."
• "We can't afford to wait," and "Why is the school bond so important? These sentences are overly
emotional, a matter of opinion, and therefore persuasive. The voters, upon a presentation of impartial
factual information, should make this judgment themselves.
• "The District Board believes this solution would receive public support." This may be a true statement,
however it lends itself to a persuasive tone, because of the implication that the District is suggesting this
solution is worthy of public support. The inclusion of the term "public support" in and of itself lends a
positive tone.
• "The best wav to relieve overcrowding is to build a new high school." This sentence inappropriately uses
the word "best" to qualify and describe the proposal. A suggested alternative is, "This measure proposes
to address overcrowding in our schools by building a new high school."
• "City of Anytown Public Schools are FULL." The words of this sentence are not necessarily advocacy,
however this sentence illustrates how the formatting and emphasis of words can contribute the tone of a
document being persuasive.
18
ORS 260.432
ORS 260.432(1) states:
"No person shall attempt to, or actually, coerce, command or require a public employee to influence or give money,
service or other thing of value to promote or oppose any political committee or to promote or oppose the nomination or
election of a candidate, the gathering of signatures on an initiative, referendum or recall petition, the adoption of a
measure or the recall of a public office holder."
ORS 260.432(2) states:
"No public employee shall solicit any money, influence, service or other thing of value or otherwise promote or oppose
any political committee or promote or oppose the nomination or election of a candidate, the gathering of signatures on
an initiative, referendum or recall petition, the adoption of a measure or the recall of a public office holder while on the
job during working hours. However, this section does not restrict the right of a public employee to express personal
political views."
ORS 260.432(3) states:
"Each public employer shall have posted in a conspicuous place likely to be seen by its employees the following notice in
printed or typewritten form:"
(see attached notice)
ORS 260.432(4) states:
"As used in this section:
(a) 'Public employee' does not include an elected official.
(b) 'Public employer' includes any board, commission, committee, department, division or institution in the executive,
administrative, legislative or judicial branch of state government, and any county, city, district or other municipal
corporation or public corporation organized for a public purpose, including a cooperative body formed between
municipal or public corporations."
19
Checklist Recommended For Reviewing Draft Documents About Ballot Measures Produced By
Governing Bodies, For Campaign Advocacy (ORS 260.432)
Note: this is a summary of factors to review for. Review the memorandum, 'Restrictions on Political
Campaigning by Public Employees," for detailed advice in each category.
Check your draft document about a ballot measure for the following factors:
a.
Timing of the publication
b.
Balance of factual information - include cost to taxpayer with specific examples.
C.
Overall impression of neutrality, not persuasive or speculative, and backed up as
appropriate by citations of source of information or some substantiating information
or citation to authority to which a voter might refer to confirm the statements.
d.
Tone of the publication, dispassionate rather than enthusiastic.
e.
Should not be personalized or use personalizing pronouns, advise not using
personalized letter format, using less personal words than 'bur," "we," "I," "us," etc.
f.
Should not use the word "will," in describing the results of passage of the measure -
the word "would" is a better alternative.
g.
Should not, in most contexts, use the word "need," in describing the purpose of the
measure. Offer basic facts and let readers make own assessment of what is "needed."
h.
Should not lend a positive (or negative) tone by use of headings, lead lines, words
or phrases.
i.
Should not include quotes, even from elected official.
j.
Graphics, checkmarks and photographs - graphics and photographs used must not
express advocacy and checkmarks should not be used at all.
k.
Should not include phrases similar to campaign slogans, if expresses advocacy.
1.
Information about how to contact supporting or opposing political committees,
should not be included unless both sides are listed.
m.
Reporting of an elected official's position on a ballot measure or an elected
official's article advocating a position on a measure, should not be included.
n.
Information about the "50% voter turnout requirement," needs to be correct and
impartially worded.
o.
Must not contain any explicit language urging a yes or no vote for the measure.
Some examples are provided in the detailed memorandum referenced above.
If you have questions about these or other election laws, please contact the Secretary of State, Elections
Division or your local elections office. We want to extend an offer to governing bodies to review any draft
material about ballot measures prior to its publication. We hope the advice we offer will be helpful and
prevent concerns or complaints by the public.
Secretary of State/Elections Division
141 State Capitol, Salem, OR 97310
tel: 503-986-1518
fax: 503-373-7414
web: www.sos.state.or.us
20
THE&ORE R. KULONGOSKI
ATTORNEY GENERAL
'OMAS A. BALMER
"PUTY ATTORNEY GENERAL
DEPARTMENT OF JUSTICE
GENERAL COUNSEL DIVISION
October 5, 1993
Colleen Sealock, Director
Elections Division
Office of the Secretary of State
Room 141 State Capitol
Salem, OR 97310
RE: Statutory Restrictions on Promoting or
Opposing Ballot Measures
Dear Ms. Sealock:
100 Justice Building
1162 Court Street NE
Salem, Oregon 97310
FAX: (503) 378-3784
TDD: (503) 378-5938
Telephone: (503) 378-4620
Oregon voters will face a number of contentious ballot measures at upcoming elections,
and some of these measures will effect, directly or indirectly, the operation of state and local
government. You have asked what restrictions may apply to public officials promoting or
opposing ballot measures.
1. Statutory Restrictions on Public Employee Political Activities
ORS 260.43211 prohibits political activities by public employees while "on the job during
working hours." In addition, ORS 294.100(1) makes it unlawful for "any public official' to
spend public funds for any purpose not authorized by law, and subsection (2) of that statute
makes public officials personally liable for money improperly spent. This statute has been found
by Oregon courts to apply to public officials who used public funds either to support or oppose
measures which were before the voters.
ORS 260.432" provides, in relevant part:
(1) No person shall attempt to, or actually, coerce. command or require a public
employee to influence or give money service or other thing of value to,promote or
oWgs any political committee or to promote or oppose the nomination or election
of a candidate, the adoption of a measure or the recall of a public office holder.
(2) No public employee shall solicit any money influence service or other thing
of valu or otherwise promote any political committee or promote or oppose the
Colleen Sealock
Page 2
October 5, 1993
nomination or election of a candidate, the adoption of a measure or the recall of a
public office holder while on the job during working hours. However, this section
does not restrict the right of a public employee to express personal political views.
(4) As used in this section:
(a) "Public employee" does not include an elected official.
(b) "Public employer" includes any board. commission. committee.
department. division or institution in the executive. administrative,
legislative or judicial branch of state government, and any county, city,
district or other municipal corporation or public corporation organized for a
public purpose, including a cooperative body formed between municipal or
public corporations.
(Emphasis added.)
Thus, ORS 260.432 prohibits "public employees" from promoting or opposing the adoption
of a measure while on the job during working hours. It also prohibits "any person" from requiring
or attempting to require a public employee to give money, service or anything of value to promote
or oppose the adoption of a measure.
2. Who is a "Public EmRloyee" Subject to these Restrictions?
We believe that "public employee," as used in ORS 260.432, includes not only rank and file
employees but also supervisors, appointed agency administrators and appointed board and
commission members at both the state and local government level31 ORS 260.432(4) provides that
"public employee" does not include elected officials. The implication of this definition is that
"public employee," for purposes of ORS 260.432, �e include all state and local government public
employees and officials other than elected officials. For example, Mointed members of state
boards and commissions are included within this definition, but elected local school board members
are not included. This result is consistent with the Attorney General's conclusion in a 1968 opinion
that a member of the Industrial Accident Advisory Committee, a public appointee, is a public
employee for purposes of ORS 260.432. 33 Op Atty Gen 473 (1968).
Thus, only elected officials lawfully may engage in advocacy for or against a ballot measure
while on the job during working hours.. However, even elected officials may not "coerce, command
or require a public employee to influence or give money, service or other thing of value to promote
or oppose * * * the adoption of a measure." ORS 260.432(1).
Colleen Sealock
Page 3
October 5, 1993
3. Penalties
The penalty for failure to comply with ORS 260.432 potentially is quite severe.
ORS 260.995 authorizes the Secretary of State to impose a civil penalty of up to $250 for each
violation of ORS 260.432. However, the more significant potentials penalty is found in ORS
294.100(1), which provides:
(1) It is unlawful for any public official to expend any money in excess of the
amounts, or for any other or different purpose than provided by law.
ORS 294.100(2) makes public officials who violate subsection (1) civilly liable for money
improperly spent, and authorizes suit by the district attorney or taxpayers to seek recovery of that
money from the officials who authorized the expenditure.
Oregon courts on several occasions have found this statute to apply to public officials who
used public funds either to support or oppose measures which were before the voters. In Porter v.
Tiffany, 11 Or App 542 (1972), the Court of Appeals held that members of the board of directors of
the Eugene Water and Electric Board (EWEB) were personally liable under ORS 294.100 for
EWEB funds spent in connection with two ballot measures. One of those measures authorized the
sale of bonds to be used by EWEB to acquire a partial interest in a nuclear power plant. The
EWEB funds were used for television, radio and newspaper advertising, voter surveys and other
materials to support a favorable vote on the measure. The other measure would have delayed the
construction of a nuclear power plant for four years. EWEB used its funds for advertising, polls
and other materials in opposition to this measure. The court found that the board had no authority
to authorize payments for these activities, and ordered the board members personally to reimburse
EWEB for the amount expended in promoting or opposing the measures.
Burt v. Blumenauer, 299 Or 55 (1985), involved a taxpayer suit under ORS 294.100 against
three county commissioners, the county executive, and two county health officers for unlawful
expenditure of public funds. The money was used to pay the salaries for persons, including one of
the health officials, who staffed a "fluoridation public information project," and to pay for
advertising, posters and polls to promote the benefits of fluoridation. This "information project"
was undertaken at a time when an anti -fluoridation measure was on the City of Portland ballot. The
court, citing ORS 260.432, found that if the officials established the "information project" with the
purpose of opposing adoption of the anti -fluoridation measure, they would be subject to personal
liability for public funds spent to oppose the measure. The case was remanded to the trial court to
determine whether the expenditures were, in fact, made for the purpose of opposing the measure.
Note that in both of these cases some of the defendants were elected officials.
ORS 260.432(4) was amended to exclude elected officials from the definition of "public employee"
after these cases were decided. Nevertheless, this change in the law would almost certainly not
have changed the results of these cases. We believe that the exclusion of elected officials from the
Colleen Sealock
Page 4
October 5, 1993
definition of public employee permits elected officials to give speeches or interviews in which they
urge support of or opposition to ballot measures, even when those activities take place "on the job
during working hours." We do not believe, however, that elected officials may direct that public
resources, including use of public employee's time, be used to support or oppose the measure. This
would appear to result in violation of ORS 260.432(1) by the elected official and ORS 260.432(2)
by the public employee.
4. Permitted Activities
This is not to say that public officers and employees must remain entirely silent with regard
to measures pending before the voters. The Attorney General has concluded that public bodies may
use public funds to inform voters of facts pertinent to a measure, if the information is not used to
lead voters to support or oppose a particular position in the election.51 See 35 Op Any Gen 169
(1970), discussing use by a school district of district funds to inform voters of facts relevant to a
school budget election. However, we also have pointed out that "informational" material may be
found to "promote or oppose" a measure even if it does not do so in so many words, if the
information presented to the public clearly favors or opposes the measure and, taken as a whole,
clearly is intended to generate votes for or against the measure. Letter of Advice OP-3322 to Ray
Robinett, Washington County District Attorney, July 24, 1975.
Moreover, ORS 260.432(2) specifically states that it does not restrict the right of public
employees to express their 1&rsonal political views. Thus, public employees may campaign for or
against measures or candidates in their individual, as opposed to official, capacity while off the job.
The Department of Justice also has concluded that the last sentence of ORS 260.432(2) authorizes
public employees to express their personal political views while on the job, through such activities
as wearing campaign buttons, subject to limited regulation by the public employer to the extent
necessary to avoid interference with the employee's duties and the employer's mission. Letter of
Advice to C. Gregory McMurdo, Deputy Secretary of State, October 10, 1984 (OP-5750). We also
believe that a public employer may establish policies restricting expression of personal political
views by employees where such expression reasonably may be interpreted by others as officially
endorsed by the public employer. For example, an agency might have policies prohibiting its
receptionist from displacing a political poster in his or her work area in view of the general public,
or prohibiting uniformed employees from wearing any badge, insignia or button, political or
otherwise, which is not an authorized part of the uniform.
Of course, an agency or other public body also must have legal authority for any expenditure
of public funds. That is, the expenditure must be for the purpose of carrying out a task or program
given to the public body by the legislature or by its charter or other enabling act. When there is a
question whether the expenditure may be for the purpose of affecting the vote on a measure, there is
some indication that Oregon appellate courts will apply a strict standard in determining whether the
agency has legal authority to make the expenditure. In Porter v. Tiffany, supra, for example,
EWEB was authorized by the city charter to "improve, extend, enlarge, and acquire water and
Colleen Sealock
Page 5
October 5, 1993
electrical utilities systems * * * ". The court held that this language did not authorize EWEB to
support a ballot measure to raise money to extend electrical service, because the power to raise
money for this purpose was given to the city council, rather than to EWEB. Likewise, the
legislature and the Governor have the responsibility for assuring adequate funds for operation of
state government agencies. Thus, even purely informational activities related to a ballot measure
should be carefully examined to ensure that the public body has statutory or other legal authority to
engage in those activities.
5. Conclusion
In summary, public employees, including non -elected officials, may not support or oppose
measures pending before the voters "while on the job during working hours." Public employees
may campaign for or against measures or candidates while off the job, in their individual capacity.
They may express their Mrsonal political views while on the job through such activities as wearing
campaign buttons, subject to limited regulation by the employer to avoid disruption of the workplace
or suggesting to members of the public that the employee's personal political views are endorsed by
the public employer. In addition, public bodies generally may provide information to the public
concerning their activities. However, when the information relates to a measure before the voters,
special care should be taken to ensure that the information is fairly presented and is not used to lead
voters to support a particular position in the election. In view of the potential financial penalties for
violation of ORS 260.432 and 294.100, we urge agencies to consult with counsel before embarking
on any informational program related to a ballot measure.
Sincerely,
!s; D;� :ALD C. Ait 101D
Donald C. Arnold
Chief Counsel
General Counsel Division
DCA:bjs/JGG07C41
c: Theodore R. Kulongoski, Attorney General -
1/ Federal law also limits the political activities of certain state and local government
employees. See 5 USCA § 1501 et. sea. These statutes apply generally to officers and
employees of state and local government executive branch agencies, boards, commissions or
departments which are financed in whole or in part by federal loans or grants, but excluding
educational and research agencies. The restrictions in these statutes are similar to, although
in some respects stricter than, the provisions of ORS 260.432.
Colleen Sealock
Page 6
October 5, 1993
21 This statute was amended by Or Laws 1993, ch 493, § 106 to add "gathering of
signatures on an initiative, referendum or recall petition" to the list of activities referenced in
ORS 260.432(1), (2) and (3). This amendment is effective November 4, 1993.
31 The Oregon Court of Appeals has held that ORS 260.432 applies to both state and
local government employees, and that it preempts any inconsistent local government
ordinance. Williams v. City of Astoria, 43 Or App 745 (1979).
41 ORS 294.100 is found in a chapter relating to county and municipal finances, yet it is
applicable to "public officials" generally. We believe it is likely that the statute would be
found to apply to all public officials. Even if it does not, however, other statutes which lead
to the same result clearly do apply to state officers. ORS 293.515, for example, authorizes
the Governor to withhold the salary of state officers or employees who fail to settle accounts
with respect to disposition of public funds or property when use of those funds or property is
questioned by the Secretary of State during his audit of the agency. Similarly, ORS 293.260
authorizes the Secretary of State to require persons who have received moneys or property
belonging to the state for which they have not properly accounted to return the money or
property to the state.
5/ Oregon election law recognizes that certain public bodies may provide informational
material concerning measures which they have referred to the voters. ORS 260.522(3)(b)
provides an exemption from certain requirements for identification of the source of a political
publication for
(b) Any written matter relating to a measure at any election prepared
under the direction of the governing body of the city, county or district
that referred the measure if the written matter is impartial, neither
supports nor opposes passage of the measure and contains the name and
address of the city, county or district.
ATTENTION ALL PUBLIC EMPLOYEES:
The restrictions imposed by the law of the State of Oregon
on your political activities are that "No public employee shall
solicit any money, influence, service or other thing of value
or otherwise promote or oppose any political committee or
promote or oppose the nomination or election of a candidate,
the gathering of signatures on an initiative, referendum or
recall petition, the adoption of a measure or the recall of a
public office holder while on the job during working hours.
However, this section does not restrict the right of a public
employee to express personal political views."
It is therefore the policy of the state and of your public
employer that you may engage in political activity except to
the extent prohibited by state law when on the job during
working hours. (ORS 260.432)
Rev 12/2000 Secretary of State, Elections Division,141 State Capitol, Salem, OR 97310-0722