Public Building or Public Funds?

In a recent blog post, we discussed how Texas cities may inadvertently violate the Elections Code by authorizing the use of employee time for political advertising. However, does this statute also affect the ability of a municipality to allow political events at city-owned facilities?

We are often asked the question of whether it is a violation to allow political candidates to host campaign events in public buildings, such as senior centers or public libraries.

Section 255.003 of the Elections Code prohibits any municipal officer or employee from knowingly spending or authorizing the spending of public funds for political advertising.  Although “public funds” is not defined under the Elections Code, in our prior blog, we explored how this term has been interpreted to include the use of employee time during work hours. In considering whether placing campaign flyers in a teacher’s lounge constitutes spending of public funds, the Texas Ethics Commission concluded that because the placement of such flyers would necessarily require public employees to transport the flyers to the lounge, such activity would result in the use of public funds for political advertising.

In addition to the use of employee work time, the Texas Ethics commission has also found that “spending” of public funds includes the use of facilities maintained by a political subdivision. However, when dealing with public facilities, the answer to whether a violation occurs will often depend on the nature of the activity taking place, as well as who is conducting the activity.

“Political advertising” is defined, in pertinent part, as a communication supporting or opposing a candidate for nomination or election to a public office or a public officer that is published in a newspaper, magazine, or other periodical or is broadcast by radio or television in return for consideration; or appears in various forms of writing or on an Internet website. Under such a broad definition, it is hard to conceive how any campaign event could be conducted without political advertising.

For example, simply posting notice of such an event on a city’s website could be considered an advertisement – and thus, a violation – if it is perceived in any way as supporting or opposing the candidate. Additionally, any use of employee time organizing or setting up such an event at the public facility would likewise be construed as use of public funds.

Therefore, while it may be theoretically possible for a candidate to host a campaign event at a public facility, in practice, doing so without the existence of political advertising seems unimaginable and – for cities – nearly impossible to control.

Moreover, whether a candidate is currently a public officer can become a major factor. Section 39.02(a)(2) of the Penal Code states that a public servant may not, with intent to obtain a benefit or harm or defraud another, intentionally or knowingly “misuse” government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.”

Persuasively, the Texas Ethics Commission has concluded that the use of a facility maintained by a political subdivision, in an area that is restricted to its employees, requires government resources to operate while in that restricted area is a violation of both the Ethics Code and the Penal Code.

The Texas Ethics Commission has cut out one small exception to this general prohibition: in a 2004 opinion, the Commission found that section 255.003 of the Election Code does not prohibit a city from broadcasting a tape of a city council meeting at which the city council considers placing an issue before the voters if the broadcast is in keeping with the city’s regular practice of broadcasting meetings.

Ultimately, however, when faced with such questions, cities would be wise to err on the side of caution and prohibit the use of public facilities for political events.

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.