Monday, May 24, 2010

Supporting the BOE Budget: The Law

Here is one of many inquiries that I have received:  "I know that it's a violation to use taxpayer funds, including money used to pay salaries, to advocate a position on the budget, but is it a violation now that we voted down the budget?  My kids are being inundated at school with political propaganda and I'd like to make a formal complaint if that is appropriate."

The following is an excerpt on this topic from A Practical Guide to Connecticut School Law by Thomas B. Mooney who is a Partner at Shipman & Goodwin.  As readers know, I think that this work is the best treatise on any legal topic that I have ever read;  the excerpt is posted here with the Author's permission.   

"Many town charters provide that the board of education budget will be submitted to referendum, either upon petition or in the normal course. Where approval of the board of education budget requires a referendum, school board members and other school officials are free to express their own views, but they must take care not to expend public funds to influence any person to vote for approval of the budget or any other referendum question.

Actions of boards of education are not subject to review by referendum except as provided by law. For example, some years ago the Town of Milford sought to hold an "advisory referendum" posing the question, "Are you in favor of the Board of Education entering into a busing contract presently known as Project Concern for the forthcoming year, 1969-1970?"  The Superior Court, however, enjoined the Town from conducting the referendum because the matter was for the Board of Education to decide: When a question such as this, whether or not the contract for busing should be entered into, presents itself, and no provision exists for its submission to referendum, the expense of submitting it to the voters, even on a "straw vote" basis, as here, would constitute a misapplication and waste of public funds. Murray v. Egan, 28 Conn. Supp. 204, 208-09 (1969). It is appropriate, therefore, to conduct referenda only in accordance with law.

When referenda are held, it is important to avoid any expenditure of public funds to advocate a referendum result. Conn. Gen. Stat. § 9-369b prohibits any such expenditures of public funds to influence a vote on a referendum question. The scope of this prohibition is very broad, and it applies to both local and regional school districts. The statute clearly prohibits a board of education from paying for posters or an advertisement urging approval of the board's budget in a pending referendum vote. However, the law also prohibits indirect expenditures. The State Elections Enforcement Commission, the agency responsible for administering this statute, has, for example, repeatedly held that it is a violation of this law to permit students to act as couriers for information advocating approval of a referendum question, because such delivery would be the functional equivalent of the cost of postage. This prohibition applies whether the material is prepared by the school district or by a third party, such as the PTO.

Using equipment or supplies to produce materials advocating approval of a referendum question is similarly prohibited. This prohibition extends to such use even if the party advocating a referendum result reimburses the district for the use of the equipment. School officials granting permission for such improper activities can be personally liable for the value of the facilities or equipment used. School facilities, however, can be made available to parties advocating a referendum result if they are made available to all interested parties on a non-discriminatory basis.

The prohibition against expending public funds to advocate a referendum result applies once a referendum has been scheduled. Significantly, prohibited advocacy is not limited to direct statements, such as "Vote Yes." The Commission will look at such materials as a whole to determine whether they are neutral and factual, or whether they cross the line and constitute advocacy materials. If they do constitute advocacy, expenditure of public funds on their preparation and/or dissemination will be a violation of the law.

In this technological age, it is important to be vigilant against making such indirect expenditures. While advocacy material may generally be posted on the school district website, it must be removed once the referendum is "pending." Avalon Bay, Communities, Inc. v. Gulbin, File No. 2001-186 (St. Elec. Enf. Com. March 27, 2002); In the Matter of Matthew Paulsen, Bethel, File. No. 2003-152A (St. Elec. Enf. Com. 2003). The same analysis applies to a "link" to such material. Also, when students expressed support for a referendum on a publicly-funded cable access program, a violation of the prohibition was found. In the Matter of Daniel Bernier, Killingly, File No. 97-219 (St. Elec. Enf. Com. 1997). Compare In the Matter of Paul Benyeda, Montville, File No. 2002-149 (St. Elec. Enf. Com. 2002) (mayor did not violate prohibition by making advocacy statements on his own time on cable access program that was not publicly funded). A related question is whether a board of education can maintain its practice of broadcasting and re-broadcasting its meetings while a referendum is pending, even if advocacy statements are made. While it does not appear that the Commission has addressed this issue, the answer appears to be a qualified yes. It is important to maintain the established practice with regard to such broadcasts. Any special re-broadcast may be seen as an expenditure to advocate a referendum result.

The State Elections Enforcement Commission has provided guidance concerning these prohibitions in a short flyer. This helpful, concise summary is available at, and it addresses the questions most frequently raised concerning Conn. Gen. Stat. § 9-369b. For example, it specifies that "a notice limited to the time, place and question to be voted upon may be sent home to parents via children in school," but it states that "children in school may not be used as couriers of information that advocates a position on a referendum." It also defines "advocacy" broadly: A communication advocates a position on a referendum when in part, or taken as a whole, it urges the listener or reader to vote in a particular manner. The style, tenor and timing of a communication are factors which are considered by the Commission when reviewing alleged improprieties of Section 9-369b. In Sweetman v. State Elections Enforcement Commission, 249 Conn. 296 (1999), the Connecticut Supreme Court confirmed that this statement is a proper description of the legal standard. Moreover, it applied this standard to the communication at issue in that case, and held that the communication violated the law because the content would encourage a reader to vote in favor of the referendum, even though the specific words, "Vote Yes" were not included.

The law sets forth three "safe harbors," i.e. situations where public funds may be expended concerning a referendum result without violating the law. First, a public official may expend public funds to prepare a written, printed or typed summary of his or her views and to distribute that summary to the news media. Significantly, the official may express support for or opposition to the referendum in such a statement. Such a summary may also be provided to members of the public upon their request, but public funds may not be expended on a general distribution of such a summary to the public. Conn. Gen. Stat. § 9-369b(a).

Second, by vote of the legislative body, a town may authorize the preparation and printing of concise explanatory texts concerning referenda proposals. If the legislative body is the town meeting, the board of  selectmen may authorize such explanatory texts. The town clerk is responsible for preparing the text, and it is subject to the approval of the municipal attorney to assure that the text does not advocate either the approval or disapproval of the question. This option is also available to a regional school district. The regional board of education may vote to approve an explanatory text, and the secretary of the board is responsible for preparing the text and otherwise fulfilling the duties of the town clerk, and the text must be approved by legal counsel for the board.

The statute also empowers the legislative body of the municipality or regional board of education to authorize "the preparation and printing of materials concerning any such proposal or question in addition to the explanatory text." Conn. Gen. Stat. § 9-369b(a). Such materials are subject to the approval of the municipal attorney, and like the explanatory text must be neutral and advocate neither approval nor disapproval of the referendum question. Id.

Third, a municipality may provide by ordinance for the preparation and printing of "concise summaries of arguments in favor of, and arguments opposed to, local proposals or questions approved for submission to the electors of a municipality at a referendum." Any such ordinance must provide for the establishment of a committee to prepare such summaries, and the members of the committee must represent the various viewpoints concerning such referendum questions. When such summaries are prepared, they must then be approved by vote of the town's legislative body, and are to be posted and distributed in the same manner as are explanatory texts prepared by the town clerk for referendum questions. Conn. Gen. Stat. § 9-369b(d). Interestingly, however, when it extended the provisions for explanatory texts to regional school districts in 2004, the General Assembly did not take similar action with regard to this provision.

Though the law does not expressly so state, it is important to keep in mind that school board members and school officials retain their right under the First Amendment to speak out in favor of the proposed school budget or other referendum question. The prohibition applies only to the expenditure of public funds. School officials can certainly advocate for a referendum result at meetings of the board of education. In addition, since board of education members do not receive a salary, their devoting their time to such advocacy would not be considered an expenditure. Other school officials may speak out as well, as long as they do so voluntarily on their own time,
so that the value of their salary will not be an imputed expenditure to advocate a referendum result.

Finally, the General Assembly has granted special status to challenges to referenda. A person claiming that (1) he or she is aggrieved by a decision of an election official, (2) votes were miscounted in certifying a referendum result, or (3) there was a violation of certain laws concerning referenda may petition a judge of the Superior Court for expedited relief, and the judge must act, before or after the referendum, on a tight timetable in hearing the matter and issuing a decision. P.A. 04-117, Section 4.  In any event, the prohibitions in the law must be taken seriously.

The law provides that persons violating its provisions are subject to a fine not to exceed twice the amount of the illegal expenditure or $1,000, whichever is greater. Moreover, the law specifically prohibits a school board or other public agency from reimbursing a public employee or officer for any such fine imposed. Normally, public officials and employees are indemnified for claims made against them for their actions in fulfilling their responsibilities. For fines imposed for violations of Conn. Gen. Stat. § 9-369b, however, one is personally liable."

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