May 16, 2013 Bold Systems Election Management System
KEEPING YOU INFORMED…
In the wake of the recent media coverage about Bold Systems Election Management System, we are taking this opportunity to remind you of the various issues with regard to the dissemination of budget and election information to voters. Bold Systems published statements on its website indicating that its services could be used by school districts to increase the “Yes” vote. The website has since been removed. In light of the publicity this incident received, we are reminding our clients of their rights and responsibilities with respect to informing and educating voters about the annual budget vote and election.
Pursuant to the Education Law and the 1986 Court of Appeals’ decision in Phillips v. Maurer, a board of education may present a proposed annual budget, accompanied by educational and informational material to enlighten the voters. Public funds may be spent to reasonably accomplish this. The board is, however, prohibited from spending public money to encourage voters to vote in favor of the school budget or any position advocated by the board.
Since the Court of Appeals’ decision, the Commissioner of Education has issued decisions which generally hold that district funds, facilities, and channels of communication may not be used to advocate on behalf or against any item on the ballot in an election. This includes indirect support of partisan promotional activities.
The following is a non-exhaustive list of activities which the Commissioner has determined to be permissible:
- Spending district funds to provide purely factual materials on the budget or other ballot propositions, such as an informational newspaper advertisement
- Publishing a newsletter explaining proposed tax increases and encouraging voter turnout
- Creating and publishing a neutral slogan
- Making calls to remind district residents to vote, provided that selective call lists are not used
- Permitting the PTA to disseminate non-partisan materials to students on school grounds
- Placing signs in school bus windows reminding the public to vote
The following is a non-exhaustive list of activities which the Commissioner has determined are not permissible and create an appearance of improper partisan activity:
- Making phone calls using selective phone lists, such as those generated by Bold Systems Election Management System which list key groups of voters who have not yet voted on election day
- The presence of the superintendent or district administrators in their official capacities at a private event which is being held for the purpose of providing information on the budget and election
- Targeting favorable voters for select messages, such as the use of specialized mailings or distributions to only parents of students and not all district residents
- The use of school mail boxes to distribute partisan materials to students, faculty and staff
- The use of school buses to transport voters to the polls
- Permitting third parties to use district postage meter to send partisan information, even where costs are reimbursed
- Permitting third parties to use district mailing labels or school mailboxes to distribute partisan information
- Permitting the PTA to disseminate partisan messages on school grounds
Permitting teachers and staff to advocate partisan positions to students on school time on matters pending before voters.
Given the amount of adverse publicity that allegations of improper partisan activities garner, it is important that school districts exercise caution in disseminating information regarding the budget vote and elections to ensure that district resources are only spent for purposes of providing purely factual information to voters.
If you have any questions about the advice contained in this memorandum, please contact us.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF LEGAL COUNSEL.
© Lamb & Barnosky, LLP 2013