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California Attorney General Weighs In on School Facility Bond Industry

At the end of January, Kamala Harris' office finally weighed in on five questions that State Treasurer John Chiang had asked a couple of years ago. (See California Attorney General Opinion 13-304.)

The first question, in particular, should put a chill down the spine of local school boards and district personnel because the answer puts the common practices that have developed over the years since Proposition 39 passed in 2000 in a new light.

Here's what Chiang asked.

1. Does a school or community college district violate California constitutional and statutory prohibitions against using public funds to advocate passage of a bond measure by contracting with a person or entity for services related to a bond election campaign?

Underlying the question is the more and more common practice of hiring outside advisers to change public opinion and win a bond election.

What's wrong with that? Well, to start, it's unfair for public employees to use taxpayer resources to get voters to approve their wishes. The taxpayers who don't want another tax have to use their own personal time and resources to mount a campaign against a bond measure. In the case of school and college districts, the employees have virtually captive audiences of parents and students. They have communications systems built with taxpayer funds. And they're paid with taxpayer funds.

A landmark California Supreme Court case, Stanson v. Mott (1976) 17 Cal.3d 206, condemned this practice back in 1976. As the court held,

the constitutional commitment to "free elections" guarantees an electoral process free of partisan intervention by the current holders of governmental authority or the current trustees of the public treasury.

The legislature soon followed with statutes such as, Education Code §7054, making this practice a felony or misdemeanor.

The Stanson Court did, however, allow that the Department could legitimately expend public funds "for informational purposes, to provide the public with a 'fair presentation' of relevant information relating to a park bond issue on which the agency has labored."

The question since then has been whether the activity is campaigning or informing.

The lawyers for the districts have argued that any expenditures prior to the point at which campaign finance rules kick in is excluded from consideration.

The practice has been that the districts carefully spend all the money and campaign among the parents prior to the vote on the bond measure.

You'll be hard-pressed to find any strictly information material in any of the district communications about a bond measure. That's because the district has hired campaign advisers to write that material. District lawyers have argued that the district violates the 'for informational purposes' provision only when the communication specifically tells the voter how to vote. These lawyers rely on an example used in the Stanson case to illustrate an egregious example of the problem. Anyone with a brain (or who's not trying to please a client), however, knows that the art of persuasion comes in many forms.

That's a distinction without a difference. The districts carefully spend all the money and campaign among the parents prior to the vote on the bond measure. Of course, the district boards carefully control when that vote takes place. In fact, for most of the bonds on the June 2016 ballot, the vote was taken less than two weeks before the filing deadline -- one district took the vote just the night before.

The Attorney General's conclusion changes that significantly. Here are the concluding paragraphs from the answer to Chiang's question.

However, we also concluded that a district may not use public funds to hire a consultant to develop a strategy for building support for the measure. Impermissible activities could include, for example, assisting the district chancellor in scheduling meetings with civic leaders and potential campaign contributors in order to gauge their support for the bond measure, if the purpose or effect of such actions were to develop a campaign to promote the bond measure.³² Surveying the relevant judicial decisions, we reasoned that "a community college district board may not spend district funds on activities that form the basis for an eventual campaign to obtain approval of a bond measure."³³

Synthesizing the approach taken in our earlier opinions, we conclude that a school district violates prohibitions against using public funds to advocate passage of a bond measure by contracting for services related to a bond election campaign if those services may be fairly characterized as campaign activity.

You'd think that school and college districts would get the message that what they've been doing in the past is criminal. You'd think wrong. They're desperate to get their hands on boatloads of your money.

BE ON THE LOOKOUT, both prior to the adoption of the measure and afterward. Particularly keep in mind that the 'information' must be a 'fair representation.' When you get that four-page, glossy mailer, is the material merely information or is it just a list of carefully worded talking points to support the bond? You don't need a lawyer to decide. Then look at all those messages and mailers that you've gotten. Do you see a fair representation or just the district's biased viewpoints.

I have some excellent tactics and strategies to deal with this, both before it happens and after.