TEXAS ETHICS COMMISSION
April 21, 2010
Whether a communication relating to a measure that a city is considering using public funds to publish complies with section 255.003 of the Election Code. (AOR-553)
The Texas Ethics Commission has been asked to consider whether a communication relating to a measure that a city is considering using public funds to publish complies with section 255.003 of the Election Code. The communication at issue is a pamphlet that relates to the City of Crowley’s Crime Control and Prevention District (hereafter, CCPD). 1 The requestor of the opinion states that in 2005 the voters approved CCPD for five years and that in May 2010 the voters will consider continuing CCPD for an additional 10 years. The requestor states that the pamphlet is designed to disseminate information for citizens to understand how sales tax money is spent through CCPD.
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:
(1) the officer or employee knows is false; and
(2) is sufficiently substantial and important as to be reasonably likely to influence a voter to vote for or against the measure.
(c) A person who violates Subsection (a) or (b-1) commits an offense. An offense under this section is a Class A misdemeanor.
Elec. Code § 253.003.
The initial question in determining compliance with section 255.003 is whether the communication 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 communication 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 communication at issue is a pamphlet that is titled "City of Crowley Crime Control and Prevention District" and that provides information about CCPD cost, programs, and goals and includes the name of members of the city council and the city secretary. The pamphlet does not provide information about the election nor does it support or oppose the continuation of CCPD 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 using public funds to publish the pamphlet is permissible under section 255.003(b-1). In our opinion, the information provided in the pamphlet is sufficiently substantial and important as to be reasonably likely to influence a voter to vote for or against the continuation of CCPD. Therefore, for the use of public funds to publish the pamphlet to be permissible, an officer or employee of the city may not authorize the use of public funds if the officer or employee knows the pamphlet 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 pamphlet is not "political advertising" and, therefore, public funds may be used to publish it unless an officer or employee of the city authorizing such use of public funds knows that the pamphlet contains false information.