September 26, 2008
Council's use of city resources to pass resolution expressly urging voters to "vote no" could be "misappropriation of funds"
YANKTON, S.D. -- Supporters of Initiated Measure 10, a November ballot proposal that would prohibit government officials from giving tax dollars to groups which engage in lobbying or political campaigns, Monday cited a longstanding Attorney General's opinion in charging that Yankton city officials violated state law and the First Amendment free speech rights of citizens who support the proposal when they used public funds to adopt and publish a resolution expressly urging South Dakotans to "vote no" on the issue.
The official ballot description of Initiated Measure 10 authored by the Secretary of State reads as follows: “An initiative to prohibit tax revenues from being used for lobbying or campaigning, to prohibit governmental bodies from lobbying, to prohibit government contractors from making campaign contributions, to prohibit government contracts when the contractor employs a legislator or legislative staff member, and to require contracts with government contractors to be published.”
In a statement e-mailed Thursday to Yankton City Commissioners, a state co-chairman for the YES on 10 campaign charged that worried opponents have spent at least $1 million to fight the proposal, including nearly $800,000 in television ads plus money spent by tax-funded lobbying groups such as the South Dakota Municipal League and by government officials such as the Yankton City Commissioners themselves.
Sam Kephart, Spearfish, earlier this year a Republican candidate for the U.S. Senate, said according to the Attorney General's office, "local government officials who use their offices and public funds to pass and publicize resolutions expressly urging voters to 'vote no' on a ballot measure are violating not only state law, but the First Amendment free speech rights of all citizens who disagree with the government's position."
The Yankton City Council in August unanimously adopted a strictly one-sided resolution which listed only arguments against the proposal and concluded by expressly urging voters to oppose it: "Now, therefore, be it resolved, that the City of Yankton strongly opposes Initiated Measure #10 and urges the citizens of South Dakota to vote 'NO' on the measure." (Resolution 08-31: http://www.cityofyankton.org/tools/CommissionMinutes/2008/080825cm.pdf)
Kephart said commissioners should stop violating the law by immediately removing the resolution from the city's tax-funded web site.
"Nothing more clearly illustrates why we need to vote YES on 10 than the fact that politicians are willing to break the law and violate taxpayers' First Amendment free speech rights to preserve their power to keep spending our tax dollars for lobbying and political campaigns and keep getting campaign money from government contractors," Kephart said.
He cited an opinion published by former Attorney General Roger A. Tellinghuisen, who in 1988 was asked by state Auditor General Maurice Christiansen: "Can a municipality, county, or school district expend public funds to advocate a position on an election measure?"
http://www.state.sd.us/attorney/applications/documents/oneDocument.asp?documentID=354&docType=3&bCameFromSearch=1
Attorney General Tellinghuisen responded "no."
"Expenditures by municipalities and similar political subdivisions for purposes of campaigning for or against a particular ballot measure is certainly suspect and could be adjudicated a misappropriation of funds exposing government officials to potential civil liability," Tellinghuisen wrote.
Tellinghuisen wrote that attempts by government officials to influence how the public votes are "repugnant" not only to the U.S. Constitution but the state constitution's promise of free and equal elections.
Further, the use of public tax dollars for purposes of influencing election results implicates the rights of those who dissent from the government supported position," Tellinghuisen wrote. "Dissenters who are in effect compelled to finance the expression of views with which they disagree have reason to complain and may assert an infringement of First Amendment Rights."
Tellinghuisen wrote that "to avoid any claim of misappropriation, the governing board involved must be careful to ensure that the published information constitutes a fair presentation of the relevant facts on both sides of the election issue. Along such lines, it would not be sufficient to merely refrain from exhorting a yes or no vote."
Kephart said Yankton city commissioners "obviously failed that legal test, since they used city offices and resources to pass a completely one-sided resolution that expressly exhorted a no vote."
He said city officials' illegal use of city resources and possible "misappropriation of funds" to formally consider, adopt, and publicize the resolution -- plus their potential violation of dissenting taxpayers' First Amendment rights by doing so -- exposes the city to legal action for which taxpayers themselves may be liable for the costs.
"Politicians give our tax dollars to groups that lobby and campaign. When the people propose Measure 10 to try to stop that, they spend our tax dollars to oppose it, which violates the law and taxpayers' constitutional rights, and when they get caught, no doubt they'll expect taxpayers to pay their legal bills too," he said.
"The YES on 10 campaign also promises the taxpayers of our state that we will not spend one penny of their tax dollars on our campaign," he said. "We challenge the well-heeled opponents of Measure 10 to make the same public pledge, including refunding to taxpayers any money they've already spent or received from individuals or organizations who are funded by tax dollars or who hold taxpayer-financed government contracts."
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