With school district annual meetings around the corner, it is prudent that districts remain mindful of impermissible campaign activities. A board of education may use district resources to present objective, factual information to school district voters concerning an upcoming vote or election. It may disseminate information reasonably necessary to educate the public. It may not, however, use district resources to distribute materials which, in the words of the NY Commissioner of Education, are “designed to exhort the electorate to cast their ballots in support of a particular position advocated by the board.” A board has no legal authority to use district funds to urge or encourage a “yes” vote on any matter presented to the voters. So, where is the boundary between information and activities designed to inform vs. designed to exhort?
While not meant to be exhaustive, this guide will address some of the most common budget / campaign issues.
District Phones and Mailboxes
The use of district phones to remind eligible residents to vote is permissible. The use of district phones to remind only targeted voters, parents of school-age children for example, is prohibited. Use of school mailboxes and email accounts to distribute notice of an upcoming election or budget vote is also impermissible in that it is limited to only select potential voters.
Information on the District website should be scrutinized to ensure that it simply informs voters of the annual meeting and budget vote and of related information. The names of candidates for board of education seats, as well as neutrally presented factual background information for each, is permitted. Factual information regarding the budget vote and any propositions, provided that it informs and does not encourage a particular vote, is permitted.
Allowing Others to “Campaign” on the District’s Behalf
That which a board of education may not do, it may not permit others to do on its behalf, directly or indirectly. It is impermissible to encourage or allow third parties to engage in prohibited activities using school district funds, facilities, or channels of communication. This is considered indirect support and has been consistently prohibited by the Commissioner. For example:
Use of School Email
School employees may not use their district email accounts to advocate for or against school candidates or a school budget. The Commissioner has ruled that public school districts do not have the authority through collective bargaining or otherwise, to allow union employees to use their school district email to advocate for the election of particular school candidates.
Districts may not allow third parties to use district postage to, for example, mail out flyers to parents of students, reminding them to vote. This is true even if district funds are reimbursed.
Districts should not make sets of mailing labels available to outside organizations without the proper safeguards in place to ensure district resources will not be used to extort the electorate to vote in a particular way. This, in our opinion, includes targeting select potential voters. The Commissioner has cautioned that, while there may be no willful misconduct when a PTSA uses district provided mailing labels to support a district budget, the district must ensure that proper safeguards are in place.
Use of School Property by Outside Groups
As boards of education are responsible for the use of school facilities and property, they must use care when allowing outside organizations to use school resources and facilities. Although an independent organization holding an event at which there are partisan activities related to an upcoming budget vote or school board election may not necessarily implicate the district, school boards need to be mindful of the appearance of impropriety. The distribution of partisan material at such events on school property should be prohibited.
Permitting the use of mailboxes by teachers and outside organizations to distribute material that intends to influence voters lends an appearance of prohibited partisan activity by the district.
Districts must take affirmative steps to ensure that teachers and staff do not espouse partisan positions to students on school time on matters pending before the voters. The Commissioner has admonished boards of education to take affirmative steps to ensure that teachers and staff do not espouse to students on school time, partisan positions on matters pending before voters.
Personal Views of Public Officials
Individuals may express their personal views on their own time and their own expense. There is no violation of law where a board president pens a letter to the editor urging the support of a budget. Likewise, a board member may use a personal bulk mail permit for campaign purposes. Individuals, however, must be careful to not purport to speak for the district or use district resources when speaking on any matter to be presented to the voters.
*Please note prohibiting the dissemination of flyers, pamphlets, etc., on school property at a non-school organized event may raise Freedom of Speech concerns under the First Amendment. Individual districts should reach out to the firm for guidance based on specific facts.