With another Election Day upon us, the time is ripe for a review of the legal environment in which school officials must operate with respect to the political process.

 

The Law

 

Let’s begin with a look at the relevant laws.  The Texas Education Code contains an explicit prohibition on “electioneering” that’s applicable to boards of trustees:

 

 

It’s important to note that the prohibition in this statute only applies to electioneering that involves the use of public funds or school district resources.  Thus, it may be helpful to think about this statute not as a prohibition on electioneering (as its title indicates), but rather as a prohibition on the improper use of public funds.  The Texas Election Code contains a similar, but more defined, provision that extends to school officers and employees:

 

 

 

Notice that this statute does not use the term “electioneer;” rather, it prohibits the use of public funds for “political advertising.”  The Election Code provides the following definition of “political advertising:”

 

 

“Political advertising,” which, according to the Texas Ethics Commission does not include a communication made via e-mail,[4] also is the subject of an additional prohibition involving the use of an internal mail system:

 

 

 

In a school district context, “internal mail system” is defined as a system operated by a district to deliver written documents to officers of employees of the district.

 

Keep in mind that the laws discussed above must coexist with and be interpreted in view of the U.S. Constitution’s guarantees of rights, particularly those involving the freedom of speech and association.

 

Practical Application

 

So what is the practical impact of the laws described above on the day-to-day happenings at a school district?  As with most laws, it seems that situations rarely arise that are directly within the crosshairs of a particular law.

 

Employee Time/District Resources

 

Take, for example, the opinion issued by the Texas Ethics Commission in 1992 regarding the use of pubic funds for political advertising.[5]  At that time, the Legislature had not yet enacted § 255.0031 (dealing with internal mail systems).  The ultimate question before the commission was whether the use of an existing mail system constituted an expenditure of public funds as prohibited by § 255.003.  Now, the answer to that question (“yes”) is now moot in light of the legislature’s subsequent action.  But the manner in which the Commission reached the decision helps to understand just how broadly the phrase “expenditure of public funds” can be interpreted.

 

First, the Commission held that the distribution of political advertising was within the prohibition on expenditures of public funds “for political advertising.”  Next, the Commission considered whether the prohibition extended to the use of an already existing mail system.  In other words, given that the system was already in place and its use presumably would not involve the direct expenditure of funds, would its use nonetheless constitute an expenditure under the statute?  The Commission answered affirmatively, stating that “Any method of distribution that involved the use of school district employees on school district time or school district equipment would be within the prohibition.”[6]

 

That interpretation was considered again ten years later when the Commission was asked about the propriety of a situation in which a school district allowed any candidate for election to its board of trustees to have campaign flyers placed in a teacher’s lounge that was not accessible to the public.[7]  Relying, in part, on its 1992 opinion, the Commission held that the use of facilities maintained by the district amounted to an expenditure of public funds.  The wrinkle in this case was the argument that such an expenditure was not one “for” political advertising (and therefore not prohibited by the statute) because the district did not discriminate between candidates.  In other words, every candidate had the same opportunity to display political advertisements in the teachers’ lounge.  The Commission disagreed with that argument, holding that the statute was broad enough to prohibit “any use of a political subdivision’s resources for political advertising.”  Thus, even what we might call the “neutral use” of resources is prohibited.

 

As we can see, § 255.003 is interpreted broadly.  The statute prohibits not just the actual spending of money, but also the use of the school district’s labor (employee actions while on district time) and the use of the school district’s physical resources (e.g., use of a district copier to make copies of political advertisements), including facilities that are maintained by the district.  Accordingly, an act as seemingly innocuous as the use of a bulletin board in an area that is not otherwise a “public forum” has the potential to run afoul of the law.

 

Advocating For/Against a Measure

 

Problems can often arise in the context of bond and tax ratification elections.  Recall that § 255.003 does not prohibit use of district funds for communications that factually describe the purposes of a measure, so long as that communication does not advocate either for or against the measure.  Now, presumably, the mere fact that the school district decided to call a particular election is pretty strong evidence that the district is in favor of a measure’s approval.  So it is all the more important that care be used when crafting any communications regarding the measure.  Stick to the facts, without rhetorical flourish.  Consider using plain English, sticking with nouns and verbs and avoiding adjectives and adverbs.

 

A review of phrases held impermissible by the Texas Ethics Commission illustrates how broadly the prohibition is interpreted.  The following are phrases that have been determined by the commission to advocate passage or defeat of a measure:

 

“The important point is that the vote to authorize this ‘Our Children, Our Schools, Our Future’ bond package gives [the school district] the flexibility needed to match the pace of coming growth, fast or slow.”

 

“The bond proposal provides the “best solution” to the needs generated by the school district’s population growth.”

 

“After examining our options and each department’s budget, we are left with only one way to generate the monies needed to continue programs and services that are essential to our students’ success.  We must have a change in our tax rates.  That means asking voters to go to the bolls and vote in a tax rate election.  If approved, the district’ rate would still be considerably lower, than it was just three years ago.”

 

“The [school district] and Board of Trustees believe this rate increase is vitally important.”

 

“Given today’s construction costs and the needs of the district, a long-term bond is the only viable financial solution.”[8]

 

The Texas Ethics Commission stresses that any amount of advocacy is impermissible, regardless of the amount of factual data contained in the communication.  Often, a school district’s contract with an architectural firm will include “pre-bond” or “pre-design” services that include the publication of a website or other media regarding the proposed bond issuance.  It is important that a school district take care to ensure that the contractual language cannot be interpreted as an agreement to provide promotional materials, even if the architect knows about the limitations on political advertising.

 

A 2009 amendment to § 255.003 specifically provides that the prohibition extends to communications that contain facts that an employee or official knows are false and are important enough as to be reasonably likely to influence a voter one way or another.  As  shown above, the laws regarding political advertising are construed broadly.  Guidance is available in the form of an advisory opinion from the Texas Ethics Commission.  A person who is subject to the laws described above may request an advisory opinion from the Commission by submitting a written request that describes a factual situation, whether real or hypothetical.[9]

 

Other Considerations

 

Many school districts have local policies governing employees’ political activities while in service of the district.  State law explicitly provides that a board of trustees or any district employee may not require or coerce any teacher to refrain from participating in political affairs in his or her community, state, or nation.[10]  Many districts’ DGA (LOCAL) policy provides that employees’ participation in political activities is entirely voluntary, but shall not interfere with the performance of assigned duties and responsibilities; result in any political or social pressure being placed on students, parents, or staff; or involve trading on the employee’s position or title with the district.  Further, policy EMB (LOCAL) may also provide that teachers are prohibited from using the classroom to transmit personal beliefs regarding political or sectarian issues.

 

Of course, these items are matters of local policy.  If your district has adopted these provisions, or similar provisions dealing with political activities, it is of paramount importance that they be accurately and strictly construed so that the district avoids any conflict with state or federal law.

 

 

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