In Political Advertising, Time (and Slogans) Equal Money
Under the Texas Elections Code, an officer or employee of a political subdivision may not knowingly spend or authorize the spending of public funds for political advertising. Tex. Elec. Code § 255.003. Political advertising is defined as “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.” Tex. Elec. Code § 251.001.
While most public officers and city officials understand this general prohibition, the million-dollar question becomes, what constitutes “public funds”?
The term “public funds” is not defined by the Election Code. However, the Texas Ethics Commission interprets the “spending” of public funds to include the use of facilities maintained by a political subdivision and the use of employee time during work hours. In a 2002 advisory opinion, the Texas Ethics Commission looked at the question of whether placing campaign flyers in the teacher’s lounge constituted a “spending” of public funds. The Ethics Commission concluded that because the placement of such flyers would presumably require school district employees to transport the flyers to the lounge, such involved the “spending” of public funds. Similarly, in a 1992 opinion, the Ethics Commission concluded that using a school district’s internal mail system for distribution of a political advertisement (even though the advertisement was already paid for) was also spending public funds, as it would require employees to physically place the ads in the system. The Ethics Commission stated that “[a]ny method of distribution that involved the use of school district employees on school district time or school district equipment would be within the prohibition.”
City employees’ salaries are paid from public funds and, therefore, any use of their time during work hours is construed as expending public funds, at least according to the Texas Ethics Commission.
While this logic makes sense, how far does it go? Could the use of items as seemingly innocuous as stamps, envelopes, and paper clips land a city in hot water? What about non-tangible items such as city logos or designs?
As it happens, in 2015, the Texas Ethics commission was faced with such a quandary. In the scenario presented, a city officer distributed political advertising on letterhead which he modified on his own time. The letterhead contained the city’s logo and slogan which the city had previously paid a private company to design. The officer’s advertisements were printed using private equipment, and no city funds were used to print or edit the ads. Moreover, cognizant of the potential appearance of impropriety, the officer included a statement on the ads that no city funds were used in the dissemination of the letters. The Ethics Commission found that since the city logo and slogan were paid for, in part, with city funds, such items were the city’s intellectual property and, as such, constituted city resources. The Texas Ethics Commission concluded that the officer would be prohibited from using or authorizing the use of the letterhead to write and distribute political advertising.
The Election Code does not discriminate based on the amount of public funds used or costs incurred by the city. If city officers and employees wish to avoid violations when supporting a political cause or candidate, they must be cognizant and attentive of exactly how and when their advertisements are created, reproduced, and disseminated to their intended audience.
Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice.
