Texas State Seal

TEXAS ETHICS COMMISSION

Texas State Seal

ETHICS ADVISORY OPINION NO. 494

October 21, 2010

Whether communications relating to a measure election comply with section 255.003 of the Election Code. (AOR-558)

The Texas Ethics Commission has been asked to consider whether three communications relating to a measure election comply with section 255.003 of the Election Code.  The requestor states that the City of Richland Hills ordered an election on whether the city should withdraw from the Fort Worth Transportation Authority (hereinafter, FWTA).  Prior to ordering the election, the city created a task force to study the matter.  A report issued by the task force is one of the communications before us.  The other two communications are an introductory article to that report and an article discussing a request for proposal for an alternative transportation system that could be implemented should the voters elect to withdraw from the FWTA.  Copies of the three communications are attached to this opinion as an appendix.  The City of Richland Hills wishes to make the communications available in the city newsletter and on the city website.

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 § 255.003.

The initial question in determining compliance with section 255.003 is whether the communications provided for our inspection constitute political advertising for purposes of section 255.003(a) of the Election Code.  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

(B) appears:

(i) in a pamphlet, circular, flier, billboard or other sign, bumper sticker, or similar form of written communication; or

(ii) on an Internet website.

Elec. Code § 251.001(16).

The critical question in determining whether the communications constitute “political advertising” is whether the communications support or oppose 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 issued by the task force and the introductory article to the report provide information about the task force, its objectives, and an analysis of ridership data produced by the FWTA.  The remaining article is about a request for proposal for an alternative transportation system that could be implemented should the voters elect to withdraw from the FWTA.  The three communications do not provide information about the election nor do they support or oppose withdrawal from the FWTA and, therefore, do not constitute political advertising as the term is defined in section 251.001(16) of the Election Code.

The remaining question in determining compliance under section 255.003 is whether using public funds to include the communications in the city newsletter or to post the communications on the city website is permissible under section 255.003(b-1).  In our opinion, the information provided in the communications is sufficiently substantial and important as to be reasonably likely to influence a voter to vote for or against the withdrawal from the FWTA.  Therefore, for the use of public funds to publish the communications 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 communications contain 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.

SUMMARY

For purposes of section 255.003 of the Election Code, the attached communications are not “political advertising” and, therefore, public funds may be used to publish the communications unless an officer or employee of the city authorizing such use of public funds knows that the communications contain false information.