TEXAS ETHICS COMMISSION
December 2, 2009
Whether a report relating to a measure that a city is considering posting on its Internet website complies with section 255.003 of the Election Code. (AOR-551)
The Texas Ethics Commission has been asked to consider whether a report relating to a measure that a city is considering posting on its Internet website complies with section 255.003 of the Election Code. 1 The requestor of the advisory opinion provides that prior to ordering an election regarding whether the city should withdraw from a regional transportation authority, the city created a task force, which issued a report evaluating the various transportation options available to the city. The requestor provides that prior to submitting the report for the commission’s inspection, material that might be objectionable under section 255.003 was redacted.
Section 255.003 of the Election Code provides in relevant part as follows:
(a) An officer or employee of a political subdivision may not knowingly spend or authorize the spending of public funds for political advertising.
(b) Subsection (a) does not apply to a communication that factually describes the purposes of a measure if the communication does not advocate passage or defeat of the measure.
(b-1) An officer or employee of a political subdivision may not spend or authorize the spending of public funds for a communication describing a measure if the communication contains information that:
- the officer or employee knows is false; and
(c) A person who violates Subsection (a) or (b-1) commits an offense. An offense under this section is a Class A misdemeanor.
- is sufficiently substantial and important as to be reasonably likely to influence a voter to vote for or against the measure.
Elec. Code § 255.003.
The initial question in determining compliance with section 255.003 is whether the report provided for our inspection constitutes political advertising for purposes of section 255.003(a). Political advertising is defined by section 251.001(16) of the Election Code as follows:
“Political advertising” means a communication supporting or opposing a candidate for nomination or election to a public office or office of a political party, a political party, a public officer, or a measure that:
(A) in return for consideration, is published in a newspaper, magazine, or other periodical or is broadcast by radio or television; or
(i) in a pamphlet, circular, flier, billboard or other sign, bumper sticker, or similar form of written communication; or
(ii) on an Internet website.
The critical question in determining whether the report constitutes “political advertising” is whether it is a communication supporting or opposing a measure. Whether a particular communication supports or opposes a measure is a fact question. A factor in determining whether a particular communication supports or opposes a measure is whether the communication provides information and discussion of the measure without promoting the outcome of the measure. Ethics Advisory Opinion No. 476 (2007). The report consists of 77 pages and includes an analysis of current public transportation ridership and cost compared with the cost of alternate transportation providers. The report also includes appendices that contain back up information. In our opinion, the report provided for our inspection does not support or oppose a measure and therefore does not constitute political advertising as the term is defined in section 251.001(16).
The remaining question in determining compliance under section 255.003 is whether posting the report on the city website is permissible under section 255.003(b-1). In our opinion, the description of the measure provided in the report is sufficiently substantial and important as to be reasonably likely to influence a voter to vote for or against the measure. Therefore, for the posting of the report to be permissible, an officer or employee of the city may not authorize such posting if the officer or employee knows the report contains information that is false. Whether or not an officer or employee provides such authorization is a fact question that cannot be resolved in an advisory opinion.
For purposes of section 255.003 of the Election Code, the attached report is not “political advertising,” and, therefore, may be posted on a city’s Internet website unless an officer or employee of the city authorizing such posting knows that the report contains false information.