November 7, 2003

PERSONAL AND CONFIDENTIAL

Mr. Steven J. Gibson

Interim Superintendent of Schools

Manitowoc Public School District

P. O. Box 1657

Manitowoc, WI 54221-1657

Re: Board of Education Referendum Activities

Dear Mr. Gibson:

On behalf of the Board of Education, you have requested a comment as to limitations which may be imposed upon members of a board of education in the course of a referendum campaign. You have advised that the Board of Education has decided to conduct a referendum on the issue of exceeding revenue limitations for the purpose of funding a school lunch program. Your inquiry relates to the election campaign which will be undertaken with respect to the referendum question.

Expenditure of Public Funds. There is a consistent line of court decisions which all hold that expenditure of public funds to advocate a position on a referendum question is improper. See: Citizens to Protect Public Funds v. Board of Education of the Township of Parsippany- Troy Hills, 98 A. 2d 673 (1953); Porter v. Tiffany, 502 P. 2d 385 (1972); Mines v. Del Valle, 257 P. 530 (1927); Stanson v. Matt, 551 P. 2d 1 (1976); Mountain States Legal Foundation v. Denver School District #1,459 F. SupP. 357 (1978). The conclusion that public funds may not be expended to advocate a position on a referendum question is substantially based upon the following:

1. A school district must be authorized by statute to expend public funds for this purpose.

2. Expenditure of public funds potentially violates the rights of citizens to freedom of speech and to petition their government. The use of public resources to advocate in favor of a position, which is opposed by persons who were taxed to generate the resources, will abridge these fundamental freedoms. Denver School District #1, supra.

Advocacy. In a 1979 opinion, 68 Op. Atty. Gen. 167, the Wisconsin Attorney General concluded that words of advocacy include "vote for", "elect," "support," "cast your ballot for," "vote against," "defeat," and "reject." A school district may not use words of this character in any official communication related to the referendum issue. Permitting school district employees to work on referendum campaigns during work hours, or granting preferential use of school district facilities to groups promoting a position on the referendum, may also constitute advocacy.

Public Information. Although a board of education may not use public funds to advocate a particular position on a referendum question, a board may make "reasonable expenditures for the purpose of giving voters relevant facts to aid them in reaching an informed judgment when voting upon" the question. Citizens to Protect Public Funds, supra. Appropriate expenditures may include brochures, newspaper advertisements, newsletters, and even documentary films. See: Smith v. Dorsey, 599 So. 2d 529 (Miss. 1991). A board of education may publish and provide information to the public. In doing so, however, a board may not concurrently advocate a position on the referendum question.

There can be a very fine line between public information and advocacy. If the Board of Education decides to publish information on the referendum question, caution must be exercised in this regard.

Enclosed for your review is a comment, recently published by the Wisconsin Association of School Boards, detailing a number of the published court decisions on election advocacy issues.

Personal Advocacy. Members of the Board of Education are citizens of the community. When acting in a non-official capacity, board members may assert personal positions on referendum questions. When expressing personal views on a referendum question, members of a board of education must exercise the highest level of care to assure that those to whom personal views are expressed, clearly understand that the board member is speaking in a personal capacity and not as an elected official. In the event of a controversy, it is incumbent upon the board member to establish that he or she spoke in a personal capacity. Members of a board, speaking in a personal capacity, may also be subject to campaign finance and related statutes, contingent upon the nature of advocacy activities undertaken.

Summary. In anticipation of the referendum vote, the Board of Education may not expend public funds for the purpose of advocating a particular position on the question. Public funds may be expended to provide objective information to the community on the question presented. When acting in a clearly individual capacity, members of the Board may assert personal views and engage in campaign activities with respect to the referendum question.

If you or the members of the Board of Education have any additional questions regarding this matter, or if we may be of assistance with respect to the referendum process, please do not hesitate to call.

Very truly yours,

Davis & Kuelthau, s.c.

Paul C. Hemmer

PCH:djn

Enclosure

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