With April Statutory Town and May Special District elections right around the corner, it is a good time for local governments to once again evaluate compliance with Colorado's Fair Campaign Practices Act (the "FCPA"). Pursuant to the FCPA, a government may not (1) make a contribution in a campaign involving the nomination, retention, or election of any person, or (2) expend moneys from any source or make contributions to urge electors to vote in favor of or against most ballot measures. State law does not explicitly state a time when a public entity's compliance with the FCPA commences. It has been generally believed that compliance with the FCPA commences once a governing body takes official action to hold an election. Under State law, the FCPA prohibits public entities from spending public funds to urge electors to vote in favor of or against any ballot issue that has been submitted for the purpose of having a title fixed pursuant to Section 31-11-111, C.R.S. Under prior ALJ decisions, "fixing a title" has been held to be the date on which the governing body had adopted an ordinance or resolution that calls the election and approves the form of ballot question.
A recent administrative law judge ("ALJ") decision has called this into question. The decision involved Colorado Springs School District 11 (the "District") submitting a ballot question to its voters in the November 2017 election. Prior to the election, the District prepared what it considered to be an informational card that was distributed to District employees and was made available to the public at District facilities. This informational card, among other things, provided estimates on property tax increases based on average home values and provided a list of what the funds would be used for. The card did not reference the ballot issue number nor did it expressly advocate the support of the ballot question at the election.
The card was designed prior to June 2017, and was printed by the District in two batches – one on June 7, 2017 and one on August 10, 2017. The printing was funded by the District.
Prior to placing the question on the ballot, the District considered the ballot question at a board of education (the "Board") meeting held on August 9, 2017, as a "non-action" item; that is, it was before the Board for discussion purposes, not for a final decision. The Board made the final decision to approve the ballot question and place it before the voters at a meeting held on August 23, 2017.
A complaint was filed alleging that the District expended public funds to urge voters to vote for the ballot question by producing and paying for the informational cards. The ALJ continued a fairly consistent interpretation of Colorado case law in holding that even though the card did not expressly advocate for the ballot question, it was entirely positive and contained no arguments against the ballot issue.
The District argued that if the card did amount to advocacy, it was still in compliance with the FCPA as the funds were spent prior to the date that the Board fixed the title under the FCPA (August 23, 2017). The ALJ held that although the ballot title was actually "fixed" on August 23, 2017, because the proposed ballot issue was placed before the Board on August 9, 2017, that was the date that it was "submitted for the purpose of having a title fixed." The ALJ has discretion with respect to the imposition of a civil penalty. In this case, the ALJ did not sanction the District, but imposed a penalty on the District's superintendent because he approved the production of the card and bears overall responsibility for the District's compliance with State law.
This is the first ALJ decision that looks back to a board or council meeting that occurs before a ballot question is actually approved. This could have broad implications for cities, towns, or other governments that approve their election questions by multiple readings. It could also be implicated whenever a governing body considers the form of a ballot question at an open meeting, possibly even a study session. As compliance with the FCPA is never "black or white," feel free to contact the following Butler Snow lawyers for information about this case and other cases, and FCPA compliance generally. Be careful out there!
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