With election season upon school districts across the state, the law firm thought this would be the ideal time to recap some of the rules of the Texas Ethics Commission and Texas Election Code in regard to the upcoming school trustee elections. Keep in mind that this article discusses some of the “highlights” in a long list of issues and situations that the Texas Election Code controls as it relates to school trustee elections.
The basic rule in Texas related to political advertising is that school districts, school district employees, and school district officials cannot use public funds, directly or indirectly, for political advertising to advocate for or against a given candidate or a given measure that will appear on the ballot. These rules are found in Texas Election Code §251.001(16) and §255.003(a).
Political advertising is defined as any communication supporting or opposing a candidate or a ballot measure that, in return for consideration, is published in a newspaper or other periodical or broadcast by radio or television, or appears in a pamphlet, circular, flyer, billboard, or other sign, bumper sticker, or similar form of written communication, or on a website (Texas Election Code §251.001(16)). The Texas Ethics Commission interprets the prohibition in this statute very broadly. In fact, according to the Texas Ethics Commission, even the conduct of a meeting on public school property involves an indirect use of public funds. As such, it appears that any use of the school’s internal e-mail system, mailboxes, PA system, or other mode of communication could constitute a violation of the statute and of the Ethics Commission rules, because it involves an indirect use of public funds or public property.
Board members and school employees who violate this prohibition could face fines or criminal penalties. In a serious case, violations could also jeopardize the validity of the outcome of an election.
The Texas Education Code provides at §11.169, as follows: “Notwithstanding any other law, the Board of Trustees of an independent school district may not use state or local funds or any other resources of the district to electioneer for or against any candidate, measure, or political party.” There is no case law or other legal authority that has offered a definition for the term “electioneer” or the term “other resources of the district” nor has there been any legal authority in Texas specifically interpreting or applying this particular statute.
This leaves districts with a prohibition against political advertising which is used by the Texas Ethics Commission.
The decisions of the Texas Ethics Commission further emphasize that there is no “deminimus” exception to the amount of advocacy that can be used in the school district.
The prohibition on political advertising applies to any officer or employee of a school district. This means that if a school district employee makes a decision to use district resources in violation of the prohibition against advertising, that employee could individually be fined by the Texas Ethics Commission or could face criminal charges.
It is not permissible for the school to authorize the use of the paid time of any school district employee to create or distribute political advertising.
Further, the Texas Ethics Commission rules provide that no matter how much factual information is included in advertising about an election, any amount of advocacy for or against a candidate or for or against a given measure is impermissible by law. A violation of this prohibition is a class “A” misdemeanor criminal offense. The Texas Ethics Commission also has the authority to impose fines for violations of this rule.
The Texas Election Code also prohibits a school district Board member or employee from using or authorizing the use of an internal mail system to distribute political advertising. An internal mail system is defined as a system operated by a school district to deliver written documents to its Board members or employees. A violation of this prohibition can lead to adverse employment actions, the imposition of fines by the Texas Ethics Commission, or to criminal prosecution as indicated above. In other words, if the e-mail address belongs to the school, it should not be used to transmit or receive political advertising.
For more information regarding the rules as it relates to political advertising for school districts, you can find additional information in the Texas Ethics Commission’s Short Guide to the Prohibition Against School District Resources for Political Advertising in Connection with an Election.
The information, comments, and links posted on the blog do not constitute legal advice. No attorney-client relationship has been formed by the blog communication(s).
Posted on 05/07 at 10:30 AM | Permalink