Five Flags Civic Center Referendum Informaton Copyrighted
November 5, 2018
City of Dubuque Action Items # 1.
ITEM TITLE: Five Flags Civic Center Referendum
SUMMARY: CityAttorneysubmitting timeline information and a
response to City Council questions related to the Five
Flags Center Referendum.
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File
ATTACHMENTS:
Description Type
Staff Memo Staff Memo
Five Flags Center Referendum Tmeline Staff Memo
THE CTTY OF Dubuque
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ui���eNe�ary
DUB E 'il��i;'
Masterpiece on the Mississippi Z°°' Z°'Z
2013 2017
CRENNA M . BRUMWELL , ESQ.
CITY ATTORNEY
TO: MAYOR ROY D. BUOL AND MEMBERS OF THE CITY COUNCIL
DATE: NOVEMBER1, 2018
RE: REFERENDUM QUESTIONS
As City Council weighs options for a possible referendum related to renovation and
expansion of Five Flags I've researched the rules and regulations which will apply to
members of the City Council, city staff, and members of city boards and commissions.
CITY COUNCIL
I was asked the following:
we discussed we as a City Representatives could not speak for or against
Five Flags at goal setting so my question is what is the rule on letters of
support from groups like Travel Dubuque who reference that they're being
written on behalf of the "Board of Directors" supporting we expand it when
some of us may be on that Board? We don't serve as individuals but as city
representatives when serving on these boards, so is this considered us
giving support if the board in general is mentioned as supporting this within
the letter of support?
I know we're only receiving and filing that letter but if it is documented as
support for Five Flags, I just want to make sure we're not creating future
issues for any of us?
I'm sure we'll have more instances potentially but the Travel Dubuque letter
is on our consent items tonight and I was curious how those instances are
viewed and if it would need to somehow notate any city representatives on
these boards were not part of that support letter? I could see howthis could
be interpreted as support by city reps with a broad board reference so just
wondering the rule on these things or if the council members on those
boards needed to abstain or vote no or something from that item
acceptance to reflect their non support or indifference?
OFFICE OF THE CITYATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563)589-4381 /Fnx (563)583-1040/Ennni� cbrumwel@cityofdubuque.org
First, City Council members serving on boards do so pursuant to their membership on the
City Council. The role is not as an individual nor as representative of the entire City
Council. In the event a referendum will be put to the voters City Council members serving
on boards which will take a position on the referendum should abstain from participation
in the discussion and voting by the board.
Second, outside of board meetings or City Council meetings members of the City Council
may take a position in their individual capacity but should be cautious NOT to do so as
"Jamie Smith, City Council Member." The lowa Attorney General discussed this topic in
a 1982 opinion related to a school principal and making clear actions are in an individual
capacity and not as a school official when advocating for passage of a bond issue outside
the school building and outside school hours.
What we have said is in relation to the official activity of the school. This is not to
say that school board members or employees of the school district are prohibited
from participating, as individuals, in a campaign for a bond issue. The lowa
Supreme Court has stated: The members of the board of directors are not
prohibited, because of their official position, from taking an active interest in the
election, or from conducting a campaign in favor of the proposition. They did not,
by accepting positions as members of the school board, surrenderany rights which
they had as citizens. Their familiarity with the wants and needs of the district
justified them in making such a campaign as they thought the needs of the district
demanded.
Chambers v. Board of Education, 172 lowa 340, 345, 154 N.W. 581, 583 (1915).
See also Keokuk Water Works v. City of Keokuk, 224 lowa 718, 277 N.W. 291
(1938); Johnson v. Inc. Town of Remsen, 2151owa 1033, 347 N.W. 552 (1933).
19821owa Op. Atty. Gen. 423 (1982).
This carries over to social media as well. Upon passage of a resolution putting the matter
to a public ballot, city council members are prohibited from taking a position on social
media platforms affiliated with their roles as members of the City Council. Personal social
media pages may be used to participate and advocate for a proposition.
Third, the City Council CAN as a body express an opinion on a ballot measure through
the passage of a resolution or proclamation. The City Council is still PROHIBITED from
devoting city resources toward specifically advocating in favor of or against said ballot
issue/referendum.
Use of public money for political purposes is prohibited by state code. The code section
is provided in a later section of this memo.
Advocacy for a referendum by city council members as citv council members, is prohibited
upon passage of a resolution which puts the matter on a public ballot. Passage of a
resolution is the proverbial line in the sand triggering certain rules/prohibitions.
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RESEARCH
First, I have included relevant state code provisions governing the usage of public funds
and resources.
Second, I polled other city attorneys in the largest of lowa cities for their experiences
and guidance related to referendum issues.
Finally, I asked for guidance from the Ahlers & Cooney law firm in Des Moines as the
firm consults with municipalities of all sizes across the state. After receiving information
from Ahlers I asked some specific questions for Dubuque to which I received additional
advice. The gathered information is included on pages 4-20.
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RELEVANT CODE SECTIONS (some emphasis/explanation added)
68A.505 Use of public moneys for political purposes.
1 . The state and the governing body of a county, city, or other political subdivision of the
state shall not expend or permit the expenditure of public moneys for political purposes,
including expressly advocating the passage or defeat of a ballot issue. (Crenna
Explanation: No city money can be spent advocating for/against a ballot issue)
2. This section shall not be construed to limit the freedom of speech of officials or
employees of the state or of officials or employees of a governing body of a county, city,
or other political subdivision of the state. (Crenna Explanation: City employee and council
members may take individual positions/speech on the ballot issue is allowed). This
section also shall not be construed to prohibit the state or a governing body of a political
subdivision of the state from expressing an opinion on a ballot issue through the passage
of a resolution or proclamation. (Crenna Explanation: City Council as a body CAN express
an opinion via resolution or proclamation)
721.2 Nonfelonious misconduct in office.
Any public officer or employee, or any person acting under color of such office or
employment, who knowingly does any of the following, commits a serious
misdemeanor:
1 . Makes any contract which contemplates an expenditure known by the person to be in
excess of that authorized by law.
2. Fails to report to the proper officer the receipt or expenditure of public moneys,
together with the proper vouchers therefor, when such is required of the person by law.
3. Requests, demands, or receives from another for pertorming any service or duty which
is required of the person by law, or which is pertormed as an incident of the person's
office or employment, any compensation other than the fee, if any, which the person is
authorized by law to receive for such pertormance.
4. By color of the person's office and in excess of the authority conferred on the person
by that office, requires any person to do anything or to refrain from doing any lawful thing.
5. Uses or permits any other person to use the property owned by the state or any
subdivision or agency of the state for any private purpose and for personal gain, to the
detriment of the state or any subdivision thereof.
6. Fails to perform any duty required of the person by law.
7. Demands that any public employee contribute or pay anything of value, either directly
or indirectly, to any person, organization or fund, or in any way coerces or attempts to
coerce any public employee to make any such contributions or payments, except where
such contributions or payments are expressly required by law.
8. Permits persons to use the property owned by the state or a subdivision or
agency of the state to operate a political phone bank for any of the following
purposes:
a. To poll voters on their preferences for candidates or ballot measures at an election;
however, this paragraph does not apply to authorized research at an educational
institution.
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b. To solicit funds for a political candidate or organization.
c. To urge support for a candidate or ballot measure to voters.
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INFORMATION FROM OTHER CITIES IN IOWA
Cedar Rapids
Crenna, we have used this in the past. I see that we don't really discuss the notion that
disseminating factual information about how money might be spent, etc., is not supporting
or opposing a ballot measure. Good luck.
Each time that a city election is held we send out a reminder as to the legal issues
of using city property or other resources for political purposes.
lowa Code Section 68A.505 prohibits a city council, or the governing body of any
political subdivision, from spending or permitting the spending of public moneys
for political purposes. Political purposes include supporting or opposing candidate
for public office, or any ballot issue. The term "public moneys" is not defined in
lowa Code Chapter 68A. Using the applicable rules of interpretation, the statute
should be interpreted broadly to aid in the effectuation of its purpose which is to
prohibit the use of public money to influence a particular outcome of an
election. The term "public moneys" should be interpreted broadly as meaning not
just money in the strict sense but also to include city property or resources
supported by city funds and the work time of city employees. However, this section
expressly states that it is not to be construed to limit the freedom of speech of
officials or employees of the city. Violation of this law is a serious misdemeanor.
In addition, lowa Code Section 400.29 prohibits civil service employees, while
performing official duties, or while using any public equipment, from soliciting in
any manner contributions for any political candidate. Additionally, a civil service
employee is prohibited from engaging in any political activity during working hours,
while performing official duties, or while using city equipment that impairs the
efficiency of operations. However, this section also provides that it is not to be
construed to prohibit any employee or group of employees, individually or
collectively, from expressing honest opinions and convictions, or making
statements and comments concerning their wages or other conditions of their
employment.
As a result of the foregoing, we advise that city officers and employees, including
those of city board and commissions, should not use public funds, facilities,
equipment or supplies to support or oppose a ballot proposition. City officers and
employees, and those of its board and commissions, should not engage in
activities in support of, or in opposition to any ballot issue, while working or
performing official duties on behalf of the city, or through the use of city resources
or equipment. This advice should not be taken as restricting the freedom of
speech of city officers or employees.
Please communicate this to the officers and employees within your areas. Please
call me with any questions.
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Council Bluffs
Council Bluffs was successful at getting a 20 million bond issue approved for a new police
station a couple of years ago. We had our social media people stick strictly with facts
regarding the dire state of the current police station and what a new police station would
do to help with public safety in our community.
There was a citizens group that was formed to really push the issue. They put out one
mailer that had logos of different businesses and organizations that supported the
passage of the issue and they without thinking included the City's logo on it. We were
quick to have them change it.
lowa City
Crenna — the last written memo my office did was 20 years ago in connection with the
library expansion but I'll send it to you as it might help get you started.
What I have done on several occasions (library expansion in 1999 and sales tax votes
since) is forward the informational material to the Director of the Ethics Board for approval
before we make it public. Both Megan Tooker, and Charlie Smithson before her, were
incredibly responsive.
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L�aRe. March 20, 1999
Tca; Susan Craig, �ibrary Director
Fr�m: Andrew+P.Matthews,Assistent City Attorney -j
9�e; Legai Opinicatt a�r Lihrary Referendum Support Activities
I. l�ste�
You inq�aired as ta what acc'vities Iibr�ry personn�C may and may nat engage in with respecf to
the tikely library referendum. Relatetl to this is the question af proper use of City funds
regarding refecendum acEivities. Addttionally, you asked about [imitat€ons on carrspaign
con4ributi�ns fi�r politicai committees,arrd reporting obligations for political committees.
11. Concfusian
Public funds may nc�t be used by the Giiy, t�r its employees, ta suppart or appase a ballot
measure. City personnel may not engage in ackivities an Gity time ta support�ir appose a ba!!ot
measure: These prohibitions incl�de the use af ail Gity> resources, b� they of staff time,
vehicles, space, products or supplies; equipment, or materia9. Library staff or other City
employ s shoulci n4t be devating any of theii° tirrre ar efforts toward the farmation of, or
sctivit€es in,a polifica(committee,whlle ori Gity time.
"infarmation packets" that do not support ar appose the balicat issue may be deve[oped using
City resaurces. If the Ciiy, or the Library, as a City departmen#, 4vishes #o put out an
"informafian packet", such material musti be silerit as to haw one should vate, and informatinnal
only, For example. if the City�ere to pu�tagether an info packet which presents ques#iflns and
answers giving reasons for construction of a new additian t�#he Library, including a s#atem�nt
of the anticipated need far addifianal space,such inft+rmatian wrould be permissible.
Additian�liy; City Code section 1-9-2A limits tatal cantributions by individuais to $5Q and
prahibits a political committee from accepiing more than $SC? totaE €ram any cantrlbutor. Ciky
Code seCtian 1-9-2G requices that a cvmmittee receiving funds, the original source of which
was a loar�, sha(I be required to list the Iender as a cQntributar: There are als� a i�umber of
rsporting abiigations with respect ta polltEca! cammittees under state law that the polit€cal;
committe�will need to be aware of and fa[love+:
11I. A�n�Iysi�
The City pians to submi# a Iibr�ry referendum ballot �ssue to vaters. Library Directar
5usat�Craig �as asked #t�e City Attarney's office for guidance as ta the Iimitation5 placed on
actiuities and on the use ofi pubiic funds or property in conneciion with this bailot issue:
It is my understanding that the library staff is gea€ing up fqr the batlot issue and voiunteers wiil
be farming a political committee to advncate c+n behalf of#he bal3ot measure.With the formation
$
Lega!Qpinicn on �ibrary Refer�ndum Suppnr�Actiui#ies
March 2t�, 1998
Page 2
of such a political commttPee come certaan t`undi�j and reporting requ�rernents under state Iaw,
which can�e found in chapter 56 of tne Iowa Ct�de.
Chapter 56.12A af the lowa Code specificafly prohibits the use of public rnonies for politica(
purpases,ineluding supparking or qpposing a bailof issue. Set out in i#s entirety,it sta#es;
The state and the gquerning body af a county, ciYy, or other polific�l subdivision of fhe state
shall not expend or permit the expenditur�ofi pubiic monies for poiitical purposes, including
supporting ar opposing a baflat issue.
This section shall not be cc�nstrued to limit the freeda�m o�speech af officials or empinyees
pf khe s#ate or a�cials or empiayees of a gaverning body of a county,city,or tather poiiticaP
subdivision af the state. This sectiiin shauld not be canstrued to prohibit the state or
governing body of a pcalitical subdivision of tMe state#rom expressing an opinion;san the
ba(lot issue thraugh the passage crf a resalution or praclamation:
7wo lowa attorney general opinians ree�rm such prohibitions antl provEde certain guidelines on
activities and expenditures. In(}pinion No:91-12-2, De mber 10, 9991,the attorney general's
office reviewed such prahibitions from the perspective of hame rule authority, dismissing home
ru3� authoeity'arguments fn favnr of the underlying policy that expenditures of public#unds to
pramote or oppose a ballot issus wauld be an inappropriate expenditur� of publcc funds. It
nated that public furids can be used to prepare and disssminate infarmakion fa etecfiors
concerning rsasons fflr propasing a ba8ot issue, but nt�t to advocat�a'particular sPde on a ball�t
issue. It shauld be no#ed that the lowa Supreme Court, in Leona�d us lowa State �oaed �f
c't�Lon_, 477 N.W.2d 815, 817 (Ic�wa 1991} cit�d with appresva� #he above noEed attorney
genera! opinian, assuming that the attorney general opinion r�presented correct statements of
lowa law. The Cc,urt determined Yha# it was not emprap�r far the local schaol hoard to expend
funds to disseminate informati�n to the public conceming the reaspns For construction; needs,
pians, and anticipated` cost�. The Gourt found that such actian, in ifself, did not amount to
promoQing a"yes"vate:
In another attorney general opinion, No, 92-�}-4, Apri3 14, 1992, the attorney genera('s office
opined th�t public funds may�e used to mainf.ain a charter'commission through the date of t(ie
electlon on the praposed charter but thak public funds may not be used for expressEy advocating
supp6rt for or opposition to the praposed charter, even #hough private funds may be so
expended. It noted that contributians and expenditure of private funds for express advocacy is
suhjeat to separate accounting and repoeting under Chapter 56 of the lowa Ga�e.
Apart from the prohibitions c�n #he use ofi pu6lic mons�s for political purpases fountl iti Section
56.12A caf the lowa Gade, Chapter 721 of the iawa Code pravicfes further,pcahibitions [n the
cc�rtter,t of the criminal Iawe
Section 721.2 (Nonfeipnious Misconduct in Office}provides;khat any pubEic afific�r or emptoyee
who lcnowingly does any of tfie following, camrnits a serious masdem�anor:... (S) permits
psrsons ta use the praperty awned by the state or subtlivisian or agency of the state tfl operate
a political phone bank far any of the following purposes: (a)#a poll voters on their preferencev
for cand°+dates or ballot measures at an e(ec#ion; hawever; this paragraph does nak apply to
authorized research at an educatianal insti#ution; (b} to solicit funds for a pali#icai candidate at
organizatiorr;(c)to urge support for a candidate or baliot measure�o voters.
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L:egal dpinio�on Labrary Referendum Support Actiu�ties
March 2a, 1998
Page 3
While Section 721,2(5 and 8} by thesr I�nguage only apply to "the property os�rned by the state
ar a subdivision or agency of the state;" and nof to "pralitiea( subdivisions of the s#at�" whictr
wauld specifl Ily include muni�apalities, it would be prudent f�r you and yaur staff Ya condu�t
your actions as#hough they did apply tp municipalities, as case law and lo�a attorney general
opinions suggest such conduct, if canducted by a municipality, or its empJoyees, wauld be
improper.
Seetian 721:4 pr�hibits any person ta use tir permit to be used any motor veMjcle awned by the
s#�te ar any palitical subdivision for the purpose oP transpt�rting any pnlifiic�l literatur� or any
perscan or persons engaging in a pplitical campaign for any pc�(itical party ar any persan seeking
an�IeGtive office.
Accordingly, it is recommended that Cityvehicles not be used in connection with Yransporting
any pofitica(liferature which advocates a particular view o�the ballot measure, as such activity
may als�violate Sectian 56.12A provisions proFribiting the expentlitur�af public morties in either
support, c�r oppasitic�n to,a ballot measure:
As chapter 56—Campaign Finance—details numerous requirements and prahibitions;f attact�
a copy of said Ghapter herewith to aid you-Pn revi�wing its provisioras.
In brief summary, City resources{"rnc[uding time,space,supplies and tqe like}may not be used
in support of; or opp�sition #o; a ballot measure. City persannel, while on City time, may nat
engage in activit6es in support of, ar oppositlon to; a ballot measure; and City prapetiy should
not be u�etl in support tsf,or opposltion to;a balBot measure:
Finally,with tihe formation af a pofifical comrnittee to urge suppart for; or oppasitian to; a ballot
rneasure,cames numeraus reporting requirements;�bligations,and prahibitions.
Att�chment
cc; Eleanor Dilkes, City Attarney
Stev�Atkins, City Man�g�r
Karin Frankfin, pirec#or—Planning and Community Developmenf
�larian i�arr.Ciiy Glerk
:antlylmerNcratg:Coc
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AHLERS & COONEY INFORMATION
� Ahlers&Cooney,P.C.
� Iq H L E R S L'O O N E Y Attorneys at Law
100 Court Avenue,Suite 600
,a T T D R N E Y � Des Moines,lowa 50309-2231
Phone: 515-243-7611
Fax: 515-243-2149
www.ahlerslaw.com
Kristin Cooper
515.246.0330
kco op e r@ a h I e rs I aw.c o m
To: Crenna Brumwell
Fxoiv[: Kristin Cooper
DaTE: September 18,2018
RE: Election campaign limitations
This memo provides guidance on two points:
(1) WHAT CAN MEMBERS OF THE COUNCIL AND CITY
OFFICIALS/EMPLOYEES DO IN CONNECTION WITH PROMOTION OF AN
ELECTION?
(2) WHAT IS THE PROCESS AND WHAT ARE THE REGULATIONS FOR
ESTABLISHING A CITIZENS' COMMITTEE TO PROMOTE A PUBLIC
MEASURE?
A summary of FAQs related to the above is also attached as a reference.
What can the Council,Citv officials and emplovees do relative to the election?
The Iowa Code provides:
The state and the governing body of a county, city, or other political
subdivision of the state shall not expend or permitthe expenditure of public
monevs for political purposes,includin�expressly advocating the passage
or defeat of a ballot issue.
This section shall not be construed to limitthe freedom of speech of officials
or employees of the state or of officials or employees of a governing body
of a county,city,or other political subdivision ofthe state. This section also
shall not be construed to prohibit the state or a governing body of a political
subdivision ofthe state from expressing an opinion on a ballot issue through
the passage of a resolution or proclamation.
Iowa Code'68A.505. This statute provides the boundaries that define the appropriate conduct of
governing officials and employees ONCE THE ELECTION HAS BEEN CALLED.
Sorting out exactly how this applies can be confusing. Material prepared and distributed
by the governing body must not advocate a particular vote on a ballot issue. Officials and
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employees, actin� as individuals, may participate in aetivity to promote or oppose a public
measLire.
It is clear that public funds catmat be used to support or oppose an election. I�awever,�a
public body that decides to place a proposal b�fore the voters ivill have gone through am eatensivz
process for deciditzg,for exautple,that��the prajeat�or proposal is needed. ��'he Attorney�General
issued an opinian with respect ta distribution of a circular concerning constructian of a new care
facility. The pamphlet ga�e reasons for constructiiin of ihe new care facility,including a statement
of�the anticipated need of additianal beds aud new City care facility standards. The�pamphlefi
presented the architect's estimate af cost for the proposed btiilding and a statement of the knawn
alternatives. The Attorney General concluded that the data prepared and circulated in the pamphlet
aggeared to serve the gurpose tp inform the caters,so the c4st of priming was a proper expenditure
of public funds.
The June 24, 1�380 opinion,ho��ever,makes it clear that if thepamphleT urges a particular
vote on the bond issue,it woul�i no longer be servin�an information purpose and sa wc�uld lie an
improper expenditui•e of pul�lic funds.
In a May 24; 1982 letter�pinion;the 4ttoniey General was of the opinion that a school
spnnsorship of a �ot� "yes° poster contest or�a vote "yes" message in a scl�ool newsletter�is�
irnpermissible,but that school rirf�icials or emplc�yees c�ere frez to work as individuals tci pmmote
c�r�ppase a Uc�nd issue.
In Leonard v:�Io�a SYate Cr�unail of Eduaafion,471 1V.W.2d 81�5(Iowa 1991),the�5upreme��
Gourt of Iowa upheld the fiiidings of these AG C)piniotis:
The concepts in the above opinions were converted t�the statute set aut abave. Infc�rmative
tnatzrials prepared by a governing body must stop short of pramoting a"y�s" or"nd' d�iite on a
partieular ballot issue, Publis officers and emplo}'ees °acting uiider color of such office or
employineiit" are prohibiteel hy the Off"icial Misconduct chapter of the criminul cade fram
permitting the use of government property to operate a politieal phone bank to poll voters on their
prefereiices for candidates aii ballot rneasures, to solicit funds for a polifical candidate or
oiganizationorto urge�support for a eandidate or b'allot measure. Iau+aCode'721.2(8}. The Etbics
and Campaign Disclosw-e Cciuncil has recently stated its intent to fii7e officials whci violate the
lau�.
Ho�=ever,the second paragraph of Iowa Code '68A:505 quoted abave mak�s it clear that
officials and employf;es, as individuals acting on their own, mav pi'ornote a ballot issue. We
believe that they rna}'individually participate in a catnpaign on one side or the other. They rnay�
answer factual questions relating to the needs of the goven7ing body and th� reascins for the
pi�flpasition so Iong�as they are not direoted ta do so as pariaf offrcra[duties°and so lo�g as iY��is
d4ne on the:officars`�r employees'own�ime and af their awn expens�:
In summary,public money cannot be spent to advocate for or against a ballot proposition.
Nlaterial prepared ancl distributed by the got�ernin�;body must not advocate a particular vote on;a
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ballot. Offieials and empioyees, actin€��as individuals, tnay participato in activity to promate�or�
app�se a puYilic measure.
Gitizens Election Co�nmittee.
Oftexi public rneasures draw the-support(and possible�pposition)of certain facti�ns tivithin
the community. One strategyto assist in the education process far a particular'proposition is thz
formation of'a private;vrganizationio promote public measures,
The activity of such organizations is re�ulated by the Campaign Finance Disclosare Act:,
Iowa Code chapter 68A,as amended from time ta time. In addition,tlie Iowa Ethics aiid Campaign
Finance Diselosure Gi�uncil has pramulgated rules that pravide the details for the operation of
catnpaign cczmmitteas.
One-important distinction between ballot issues and the election of individuals to puhlic
flff"ice is thaf corparations mav eflntribute to a canipaign in support of or opposition to a public
measure;corporatioiis rnay�not contribute tc�the campaigns af individual candidates. Based on the
discussion above,public funds�annofbe used to support thesz advocaey organizations.
Wlien a cainpaign comniittee is fonned, care should be takzn that the proczdur�s arz
follo�c�ed in�rganizing it. Persons who h�ld responsibility for filing reports,preparing advertising
inaterials aiid other activity niusY coniply with the�statute�and rules to�avoid tiegative publicity as�
�vell as being subject3o reprimands or fines:
Aiiother�uord of cautioii is iieceGsary: Alsmbers of a governing body u=ho participate in a
citizens'c ommittee should be sensitive to'the requirements ofthe open meetings law. If a quorum
�f the Council is present at a ineeting of a eainpaign ecitnmittee,tlie provisic�ns af Iciwa Cc�de
chapter 21 mav apply.
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iJSE QF PUBLIC FUNDS FdR PULITICAL PiJRPOSES
I. Questions and Answers Related to What Cauncil Members, City Officials anci
F.mployces Can Do in Connection with Proinotion of a Rall�t 1�7easure?
{�: �an a public hody spend�mQney���to advoeate the�passage(ar defeat)�:af�a ballot
measure?
A. No. Public money cannot he used for pc�litical purposes,including attempts to pa:ss
or defeai a ballot�issixe. The Iowa Gode provides; �
The state' and the goverrzing bpdy>cif a county, c7ty, or other politicnl
subd�vision of the stc�te shc�ll not exuend or perinit the�pemr�itzere c�f uubtic
mane s for polit�cal purpos�s, incluciina��pressly advocahng rh�passage��
ar defeut of er bnllot zssue:
Th¢s section sh�ll not b�construed to ltmit the freed�tn�f speech of
o�cials dr emplojzees of the�state or Df offici�a�s or empioyees of a
gouerntHg body af a courely czty, or�other poli�ic�l suhdzviszon'�oj
2he stezte: This sechoz3 also she�tl no� be corrstruec?to xtrohzbrt thc
state or cagouerning body ofa polatzcal subdiuisian ofthe state fram
�expressing an vpiitzon a��i �a badlc�t issue thrnugh the peassage af k
resolunon ar proclttmatran:�
Io�a Gc�de § 684.SQ5 (2017) (emphasis added): This statute pro��ides the
boundaries that definethe�appropriat�conduct of goveming ofF'ieials and��employees�
UNC�:;1'HN:EI;EC'TION HAS BEEN CALLED.
Q;, Can a public body spend nxoney to distiit�utc informational material about an
upeoming ballotmeasure?
A. Yes,as long as that inforrnation does not ad��ocate the passage or defeat ofthe ballot
measure. A public body has the authority to disseminate inforrnation to th�publie
eaneerning the r�,asons for the ballot issue; such as needs, plans, and anticipated
costs��: It is impartant that ihis information remain neutral and not promote a"ues"�
or"no"vote.
Q, Can a'Cowncil mernber,official ur empl�yee campaign for ur against a ballat
measure?
A. Yes. 'I'he Iowa Code specifically states that it does not limit the freedom of speeeh
of afficials or elnployees of a governing bcady. Council mzmbers, officials, and
employees must$e snre they are acting as citizens�f the community in promoting
their position onthe ballot mzasnre�.
14
When utilizitlg social m�dia, it is imperative that tha Council niemher, ot�'icial or
emplayee is p�stina, bloggiiig, etc. solely in their role as a citizen. nat as a
represe�itativeofihepublic�body_ Ttieselines�caubeeasilyblurredonthe�recipien��
end_ Accordittgly,use of"the utmosti�of caution is advised. There is no henefit to
taking an action that could allow for a challenge to the election to be brought
particulariy if the election passes. Discretion is the better part of valor in
these��situations�.
Q,. Can a•pub&c emplo�ee, during his or her ti�ork haurs,advocate thaf electcrrs�
vote,as�lung as fhe,y don=t advocafe HOW fo voteT
A. Yes,but rzad thz nzat questian and answer.
Q., Can a public emplavee; during work houis, advocate that electors vote by
absentee balloi?
f1. No. Ad��ocating tioting absentee is prohibited by a separate code sectionthat makes
it a simple misdemeanor for a public emplovee during u�ork hours to solicit absentee
ballots;
Hc�wever,publicemployees ma}�adtrise elactors ofthe opnortunitvto vote absente�:
The ciifference is between advisin�oFan opportunity and advocacy,
Qi Can a public official or employee wear buttans during the worlc day which
state AVote Yes@?
A. An employee,in their individual capacity;may choose to wear a button izs long as
it as nat�usually prahibited by the�ru�blic body's poliey: 'Phe public body,ha�vaver,,
may not encoura�,e or discourage the emplo}'ee from wearing or not wearin�
Uuttuii�.
T-shirts are differant than buttons A public bady mayhave a policy�hich prohibita
emplayzzs from ��earing shirts which cc�ntain politieal rnessages, aduertising or
logos; �s a result;it is improper for an emplflyee in his/lier official capacity to wear
a t-shirt either a3vocating for or against the'ballot issue because of their publie
position of authority uid because the public'bady has consistently enforced its
policies,rules,and regulations regarding the�vearing of t-shirts.
Q. Can an einplovee tell uther e�nployees to vote y es during a meeting held'during
the wurk day?
A. No. Pexblic funds cantant be used to advacate for ar againsf a ballot measure;
accordingly the public Uody may not a1lowYhe use of any facilities or public funds
to support the ballot issue. In this case, one employee would be using his/her
position, as well as publi�facilities,to urge a vate yes positiot�on the bal�ot issu�
which is impermissible:
15
Q. Can an official at a non-public body sponsored meeting held outside the
normal work day urge a vote yes message at the meeting?
A. Yes,but read this answer. Officials and employees are prohibited from advocating
for or against the ballot issue in their official capacity. However, officials and
employees are free to work as individuals to advocate for or against the issue. The
official or employee aYtending such meeting and urging a vote yes message should
make it very clear that he/she is acting in an individual capacity and not as a public
official or in their capacity as a public employee when urging such a message. See
May 24, 1982 letter opinion from Iowa Attorney General.
Q. Can a public employee use the City=s telephone,e-mail system,fax machine,
or website to advocate a vote yes or no position on a ballot issue?
A. No,because this is a direct use of public funds to advocate for or against a ballot
issue.
BOTTOM LINE: Material prepared and distributed by the public body must be neutral.
Council members, officials and employees, acting as individuals,may promote or oppose a
ballot measure. Given the potential for questions as to which "hat was worn"when action
was taken,caution and discretion are always advised.
II. Questions and Answers Related to the Use of Public Funds and/or
Resources by Individuals or Organizations other than Council Members,
Officials or Employees
Q. Can campaign volunteers use public property to operate a phone bank,
promote a position on the ballot measure,or to poll voters?
A. No. The Iowa Criminal Code specifically prohibits the use of government property
to operate a phone bank or poll voters,to solicitfunds,or to urge support for a ballot
measure.See Iowa Code §721.2(8)(201'�.
Q. Can a public body-sponsored newsletter advocate a vote yes or no position?
A. No,that is direct use of public funds.
16
IIL Questions and Answers Related to Identifying the Guidelines for
Establishinb a Citizens' Committee to Proinote a Ballot Measure
Q. What are the goveining rules for establishing an organization to suppoi-t:or
oppose a public measure?
A. The Iawa Campaign Disclosure rlct rea lat�s thesa citizens' organizations. 3ea
Iowa Code Chapter 68A: In addition, the Iowa Ethics and Garnpaign Financz
Ccauncil has estatalished rules for the operation of campaign comniittees. The
speciflc>code sections of importancz far ball�t issue cornmitters are;
• §68A.102�(I)efinitions)
• �68A.241 (Organization Stat4,ment)
+ §6&a.203(Gommittee Treasurer)
• �68A.401(Reports Filed with Board)
• §68A.442(Disclosure Report Due Dates)
• §68A.402A(Infc�rmation Disclosed onReports)
Q. w'hat is the difference hetiveen camFugning for a ballot issue and
campaigning for an individual wl�o is t�unning for office?
A. One irnportant distinction between ballot issues and the election of individuals to
pubIie office is�that corporations inaa contrihcxta to a�hallot issue canipaign,bnt no�
to the campaigris of individual candidates. See Iowa t;ade§68A.605(2017).
Q. Rule govern campaigtn committees,what happens if they are not follo�ved?
f1. Wlien a campaign conimittee is formed; it is znrtremely important that the
procedures are followed.Yersons responsible for filingreports;preparing campaian
materials,and oY�1ar cvnpaign activlties niust cotnplywiththe statutes and rules Yo��
at�oid'negatice publieity;as well as reprimancis ar fines:
Q. w'hatif several Council-memhers join the same citizens'c��mmittee?
A. Council members who partieipate;in a citizens'committee should keep in mind the
requirztnents of the Open Meeting,.e law, If a quorum of the Council is pr�sant at a
meeting of the� campaign cotnmittee, th� provis7ons�of Iowa�Code chapter 2�I
(O�cial Meetings 1llust be(3pen ta-the Publi4}may applu.
�i=zoaai-iir��azz-000
17
CONCLUSION
If additional information is needed throughout this process I am happy to research and
seek assistance as needed to properly guide staff actions in accordance with applicable
laws.
cc: Michael C. Van Milligen, City Manager
Cori Burbach, Assistant City Manager
Teri Goodmann, Assistant City Manager
Marie Ware, Leisure Services Manager
Randy Gehl, Public Information Officer
Gus Psihoyos, City Engineer
Steve Sampson Brown, Project Manager
HR Cook, Regional General Manager, SMG/Five Flags
18
THE CTTY OF Dubuque
�"
ui���eNe�ary
DUB E 'il��i;'
Masterpiece on the Mississippi Z°°' Z°'Z
2013 2017
CRENNA M . BRUMWELL , ESQ.
CITY ATTORNEY
TO: MAYOR ROY D. BUOL AND MEMBERS OF THE CITY COUNCIL
DATE: NOVEMBER 2, 2018
RE: FIVE FLAGS REFERENDUM TIMELINE
I have looked into the timeline related to referendum issues under lowa law.
Special elections must be held on a Tuesday. lowa Code, section 39.2(4) provides the
following dates for a public measure via special election:
First Tuesday in March
First Tuesday in May
First Tuesday in August
Day of General Election
Day of the regular city election
Day of a special election held to fill a vacancy in the same city.
A referendum for the issuance of bonds for a general corporate purpose is governed by
lowa Code, sections 75.1 and 384.26 (2-4).
A special election cannot be scheduled until the County Auditor receives a copy of the
action by the City Council calling for the special election. lowa Code, section
47.6(3) requires the applicable County official have notice from the City forty-six (46)
days prior to the date the referendum vote.
Using the first Tuesday in May as a possible date of a special election/referendum vote
the time line looks like this working backwards:
May 7, 2019: Special Election
March 22, 2019: Ballot Deadline for County
March 18, 2019: Last City Council Meeting before ballot deadline
OFFICE OF THE CITYATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563)589-4381 /Fnx (563)583-1040/Ennni� cbrumwel@cityofdubuque.org
January — March: City staff prepares factual information related to scope, cost, and
impact of project on taxes, city staff presents to groups upon request, city staff responds
to questions.
Information widely distributed to the public via mailings, social media, city website, cable
television, and other media sources.
January 7, 2019: Recommendation City Council initiate discussion of ballot language
if City Council intends to initiate a special election related to the issuance of general
obligation bonds for a project at the Five Flags Center.
Ideally, if a special election will be held on the issuance of general obligation bonds
related to the Five Flags Center the City would provide the ballot language to the
County further in advance of the forty-six (46) days prior to the vote. This allows a
coordinated effort by staff to prepare factual information for the public, and any
committees organized related to the referendum, on the impacts of the project in
advance of the election date to ensure voters have the facts, have proper time to review
the information, and can reach an informed decision.
If you have any questions please let me know. Thank you.
2