By: Brittany Flaherty Theis
Last week, Whitt Law Attorney Brittany Flaherty Theis participated in panel presentations at the Illinois Association of School Business Officials’ Regional Conferences in East Peoria and O’Fallon. The presentation was titled “Operating Tax Rate Referenda Options and Related Considerations.” The panel discussed operating tax rate referenda options and described the importance of understanding and communicating the expected impact of any such referenda, along with tips for enhancing those efforts while maintaining compliance with the election interference laws. Given that the next general election is next week, on November 6, the election interference laws are a particularly relevant consideration for any government agency. Two are highlighted below.
The Election Code
Section 9-25.1 of the Election Code prohibits the use of public funds to urge voting for or against candidates or a referendum. The Election Code, however, does not prohibit the use of public funds to disseminate factual information about referendum issues. This means, for example, that school districts can prepare written materials that are limited to describing the proposition listed on the ballot, but they cannot urge a yes or no vote. Relevant, factual data included in communications to potential voters can include information regarding the school district’s financial condition and comparisons with other districts. The Election Code does not prohibit local officials from taking public positions on a referendum, nor does it prohibit the use of public funds to advocate for a position on public issues not on the ballot.
The State Officials and Employee Ethics Act
The restrictions found in the Election Code exist in coordination with those found in the State Officials and Employee Ethics Act (the “State Ethics Act”). Section 5-15 of the State Ethics Act provides, in part, that a government employee may not:
- Intentionally perform any prohibited political activity during compensated time;
- Intentionally misappropriate the services of another governmental employee to perform any prohibit political activity (i) as part of that employee’s duties, (ii) as a condition of government employment or (iii) during any compensatory time off;
- Require another governmental employee to participate at any time in any prohibited political activity in consideration for being awarded compensation or benefits; or
- Award another governmental employee additional compensation or benefits in consideration for participation in prohibited activities.
The State Ethics Act defines “prohibited political activities” to include, among other things:
- Soliciting votes for or against any referendum question;
- Planning, conducting or participating in a public opinion poll for or against any referendum question;
- Distributing, preparing for distributing or mailing campaign literature, signs or other materials for or against any referendum question; and
- Campaigning for or against any referendum question.
It does not, however, limit an employee’s referendum-related activities when off the clock, away from government property, so long as such activities are conducted without government resources.
Case law has provided additional guidance regarding appropriate conduct for government employees and allowable uses of public funds. Together, the election interference laws and case law highlight the importance for school districts and units of local government to be careful to remain separate and distinct from advocacy groups to avoid any suspicions of government sponsorship or commingling of personnel. It is also important to be sure not to expand the amount of public resources, facilities, or property that would otherwise be available to advocacy groups. Additionally, communications paid for using public funds should be factual and avoid persuasive language.
As with any ballot-initiative, planning for a successful referendum takes time, experience, and a significant amount of work. It is important to begin planning and assemble your team well in advance of any referendum-related initiative.
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If you have any questions regarding election interference laws or referendum options, please contact Whitt Law Attorney Brittany Flaherty Theis.