TEXAS ETHICS COMMISSION

ETHICS ADVISORY OPINION NO. 526

April 16, 2015

Whether communications relating to a measure election comply with section 255.003 of the Election Code. (AOR-594)

The Texas Ethics Commission has been asked to consider whether three separate communications relating to a measure election comply with section 255.003 of the Election Code.  The requestor states that the City of Deer Park (hereinafter “the city”) ordered an election to be held on May 9, 2015, on the issue of whether the city should adopt a “Type B” economic development sales and use tax within the city at the rate of one-half of one percent, adopted for public park purposes and events and limited to certain types of projects.

The city prepared three separate communications to inform voters of the facts pertinent to the election, including:  a newsletter to be distributed as an “independent mailer,” a poster to be displayed at city facilities and distributed with outgoing utility bills, and a document to be posted on the city’s social networking website, which are attached to this opinion as an appendix and labeled as “Exhibit A,” “Exhibit B,” and “Exhibit C,” respectively.  The measure on the ballot is the following:

Shall the City Council of the City of Deer Park be authorized to adopt the Type B economic development sales and use tax within the City at the rate of one-half of one percent, authorized by chapters 501 and 505 of the Texas Local Government Code for public park purposes and events, and which is limited to the following list of projects and includes land, buildings, equipment, facilities, and improvements for such projects, and related improvements that enhance such projects:  replacement of the restroom facilities in Dow Park with a new pavilion structure that includes a stage, restrooms, and a concession stand; renovation and expansion of the Community Center and Gym to include an indoor pool; expansion of the existing Maxwell Center and parking lot; renovation of baseball fields including but not limited to the Spencerview sports complex (Durant Fields); renovation of the girls softball facilities at the Youth Sports Complex; development of soccer fields; and the development of hike and bike trails?”

The city has also adopted a resolution that stated that the sales and use tax, if approved, will be limited to the projects described in the measure and that provided an estimate of the costs for each project.

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 any of the proposed communications constitute 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 one of the communications constitutes “political advertising” is whether it 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).

Newsletter

The newsletter consists of four pages.  The first page provides information about the proposed measure, including the measure as it would appear on the ballot in an election, the date of the election, and the manner in which the measure was placed on the ballot.  The first page of the newsletter also lists the estimated costs for each project for which the funds acquired by the sales and use tax increase, if approved, would be used and provides the address of the city’s website for additional information.  The second page contains various questions and answers regarding the measure, such as the rate of the proposed sales tax increase, the current sales tax rates of nearby cities, the operation and administration of sales tax collection, and projected revenue from the sales tax increase.  The third page is a translation of the second page from English to Spanish.  The fourth page includes the dates, times, and locations for voting in the election, in both English and Spanish.¹

The newsletter includes information beyond a factual description of a measure.  However, in our opinion, the newsletter provides information and discussion of a measure without promoting the outcome of the measure and does not constitute political advertising as the term is defined in section 251.001(16) of the Election Code.  Therefore, the use of public funds for the newsletter would not violate section 255.003(a) of the Election Code.

Poster and Social Networking Website Communication

The poster’s content is substantively identical to the first page of the newsletter, and also includes the dates, times, and locations for voting in the election.  The proposed communication for the city’s social networking website is also substantively identical to the first page of the newsletter, but also provides specific directions for using the city’s website to obtain additional information about the election.²   In our opinion, the communications factually describe the purposes of a measure and do not advocate passage or defeat of the measure and do not constitute political advertising.  Therefore, the use of public funds for the communications would not violate section 255.003(a) of the Election Code.

Section 255.003(b-1)

The remaining question in determining compliance under section 255.003 is whether using public funds to distribute the communications is permissible under section 255.003(b-1).  In our opinion, the information provided in the communications 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 communications 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 communications contain 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 communications should be verified to ensure that they are not false.

SUMMARY

For purposes of section 255.003 of the Election Code, the attached communications are not political advertising and, therefore, public funds may be used to distribute the communications unless an officer or employee of the city authorizing such use of public funds knows that the communications contain false information.