TEXAS ETHICS COMMISSION
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TEXAS ETHICS COMMISSION |
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April 18, 2012
Whether a communication relating to a measure election complies with section 255.003 of the Election Code. (AOR-568)
The Texas Ethics Commission has been asked to consider whether a communication relating to a measure election complies with section 255.003 of the Election Code. The requestor states that the City of Richland Hills (hereinafter “the city”) ordered an election on the issue of whether the city should consolidate with the City of North Richland Hills. The city prepared a proposed “fact sheet” to inform voters of the facts pertinent to the election. The city wants to distribute the fact sheet and make it available on the city’s website to provide the citizens of the city with information regarding the proposed consolidation. A copy of the fact sheet is attached to this opinion as an appendix. The measure on the ballot is the following: Shall the cities of Richland Hills and North Richland Hills be consolidated?
Section 255.003 of the Election Code provides, in relevant part, as follows:
(a) An officer or employee of a political subdivision may not knowingly spend or authorize the spending of public funds for political advertising.
(b) Subsection (a) does not apply to a communication that factually describes the purposes of a measure if the communication does not advocate passage or defeat of the measure.
(b-1) An officer or employee of a political subdivision may not spend or authorize the spending of public funds for a communication describing a measure if the communication contains information that:
(1) the officer or employee knows is false; and
(2) is sufficiently substantial and important as to be reasonably likely to influence a voter to vote for or against the measure.
(c) A person who violates Subsection (a) or (b-1) commits an offense. An offense under this section is a Class A misdemeanor.
Elec. Code § 255.003. A “measure” is a question or proposal submitted in an election for an expression of the voters’ will. Id. § 251.001(19).
The initial question in determining compliance with section 255.003 is whether the fact sheet constitutes political advertising for purposes of section 255.003(a). Political advertising is defined by section 251.001(16) of the Election Code as follows:
“Political advertising” means a communication supporting or opposing a candidate for nomination or election to a public office or office of a political party, a political party, a public officer, or a measure that:
(A) in return for consideration, is published in a newspaper, magazine, or other periodical or is broadcast by radio or television; or
(B) appears:
(i) in a pamphlet, circular, flier, billboard or other sign, bumper sticker, or similar form of written communication; or
(ii) on an Internet website.
Elec. Code § 251.001(16).
The critical question in determining whether the fact sheet constitutes “political advertising” is whether the fact sheet supports or opposes a measure. Whether a particular communication supports or opposes a measure is a fact question. A factor in determining whether a particular communication supports or opposes a measure is whether the communication provides information and discussion of the measure without promoting the outcome of the measure. Ethics Advisory Opinion No. 476 (2007).
The communication at issue includes facts about the measure to consolidate the City of Richland Hills and the City of North Richland Hills, such as the manner in which the measure was placed on the ballot, the fact that consolidation would require a majority of Richland Hills voters voting in favor of the measure and a majority of North Richland Hills voters voting in favor of a separate measure in November 2012, and various effects of consolidation and differences between the two cities. The communication goes beyond factually describing the measure. However, in our opinion, the fact sheet provides information and discussion of a measure without promoting the outcome of the measure and therefore does not constitute political advertising as the term is defined in section 251.001(16) of the Election Code.
The remaining question in determining compliance under section 255.003 is whether using public funds to distribute the fact sheet is permissible under section 255.003(b-1). In our opinion, the information provided in the fact sheet is sufficiently substantial and important as to be reasonably likely to influence a voter to vote for or against the measure. Therefore, for the use of public funds to distribute the fact sheet to be permissible under section 255.003(b-1), an officer or employee of the city authorizing the use may not do so knowing that the fact sheet contains information that is false. Whether or not an officer or employee provides such authorization is a fact question that cannot be resolved in an advisory opinion. In our opinion, statements provided in the fact sheet should be verified to ensure that they are not false.
For purposes of section 255.003 of the Election Code, the attached fact sheet is not political advertising and, therefore, public funds may be used to distribute the fact sheet unless an officer or employee of the city authorizing such use of public funds knows that the fact sheet contains false information.