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Five Flags Civic Center Referendum: Information from City Clerk / City AttorneyCopyrighted March 2, 2020 City of Dubuque Action Items # 8. ITEM TITLE: Five Flags Civic Center Referendum: Information from City Clerk and City Attorney SUMMARY: City Clerk providing information on the use of voting centers for the September 8, 2020 Five Flags Civic Center Referendum. SUGGESTED DISPOSITION: ATTACHMENTS: Description City Attorney providing information on referendum parameters for City Council Members. Suggested Disposition: Receive and File Type Staff Memo - City Clerk re Voting Centers Staff Memo Staff Memo - City Attorney re Referendum Parameters Staff Memo Masterpiece on the Mississippi TO: FROM: DATE: SUBJECT: The Honorable Mayor Buol and 'ty Council Members Kevin S. Firnstahl, City Clerk February 26, 2020 101 Five Flags Center Referendum oting Centers Dubuque httri AIFAmenea City 11111 2007*2012*2013 2017*2019 PURPOSE The purpose of this memorandum is to provide information on the use of voting centers versus polling sites for the September 8, 2020 referendum on the issuance of bonds for the reconstruction of the Five Flags Civic Center. BACKGROUND Voting centers are sites selected by the Commissioner of Elections (Dubuque County Auditor Denis Dolan), evenly placed throughout the City were all eligible votes can cast their votes regardless of the ward or precinct in which they reside. The number of sites utilized can vary based on availability, past use, rental/staffing costs, and traffic patterns. Overall, voting centers are considered more convenient for voters, more efficient, and cost-effective. Polling sites/centers are locations where eligible voters can vote only if they are a resident of the ward/precinct assigned to that site. DISCUSSION The Elections Office has been moving toward using voting centers instead of the traditional polling sites for all special elections. This model has proven successful with the School Board elections which are now on the same date as regular city elections. I met with Denis Dolan and Deputy Commissioner of Elections Jenny Hillary, City Manager Mike Van Milligen, and City Attorney Crenna Brumwell. Ms. Dolan and Ms. Hillary provided information on logistics, expense comparisons, and historical ward voting numbers. Based on this information Ms. Dolan recommended, with the approval of the City Clerk, the use of ten (10) voting centers. These locations were selected for their availability, waikability, proximity to bus stops, and balanced placement throughout the City as well as past voting totals for that area. Transportation Service may again provide free rides on Election Day. Proposed Voting Center Locations (Map attached) Rockdale United Methodist 1500 Old Mill Rd Theisen's Home Center 2900 Dodge St. Arbor Oaks Bible Chapel 2843 John F. Kennedy Rd. St. Peter Lutheran Church 3333 Asbury Rd. Westminster Presbyterian Church 2155 University Ave. U.A.W. Local 94 Union Hall 3450 Central Ave. Holy Trinity Church 1700 Lincoln Ave. St. John's Parish House 1401 Locust St. Election Annex 75 Locust St. Fogarty Hall Center 1240 Rush St. BUDGET IMPACT An estimate of expense comparison between voting centers and current polling sites provided by Denise Dolan is as follows. These are estimates and are subject to change. Vote Centers Vote Centers Current Voting (8) (10) Sites (20) Precinct Election Officials 6,880 8,600 11,100 Public Notice 420 420 420 Machine Delivery 600 800 1600 Poll Rental 455 585 975 Public Test of machines 28 28 80 Supplies 400 500 1,000 Ballots 3,500 4,500 5,500 Poll Book Training^ 1,200 1,400 3,000 Mileage 250 300 600 PEO Training 550 600 1,400 Nursing Home Teams 690 690 690 Absentee Board 557 557 557 Postage _______..._....._ _.—_. 720 745 760 Total $16,250 $19,725 $27,682 " Optional OVoting Centers - Five Flag Referendum 0 Transit Stops The City has savings of $15,832.27 in FY2020 from the November 2019 City Election, due in part to the combined School District election. The remaining balance of $3,892.73 can be coved by interest earnings above the budget. Savings might also be realized in the area of Poll Book Training as elections staff will have already been trained ahead of the September 8, 2020 election date. RECOMMENDATION / ACTION It is my recommendation to the County Auditor that the City of Dubuque utilized the ten (10) recommended voting centers for the September 8, 2020 referendum. Since the authority for this decision falls to the City Clerk with concurrence of the County Auditor, no action is required on the part of the City Council. /ksf cc: Denise Dolan, Dubuque County Auditor Jenny Hillary, Deputy Commissioner of Elections Michael Van Milligen, City Manager Crenna Brumwell, City Attorney Jenny Larson, Director of Finance & Budget September 8, 2020 Current Polling Locations Precinct Ward 1 1st 2nd 3rd 4th 5th Ward 2 6th 7th 8th 9th loth Ward 3 l l th 12th 13th 14th 15th Ward 4 16th 17th 18th 19th 20th Polling Site Rockdale United Methodist Theisen's Home Center Area Residential Care Journey Church Arbor Oaks Bible Chapel Address 1500 Old Mill Rd. 2900 Dodge St. 3355 Kennedy Circle 3939 Pennsylvania Ave. 2843 John F. Kennedy Rd. Summit Congregational Church 2885 JF Kennedy Rd. St. Peter Lutheran Church Emmaus Bible College Westminster Presbyterian Church Westminster Presbyterian Church U.A.W. Local 94 Union Hall Windsor Park Moose Lodge Sacred Heart Church Holy Trinity Church Election Annex St. John's Parish House Federal Building YMCA/YWCA Fogarty Hall Center 3333 Asbury Rd. 2570 Asbury Rd. 2155 University Ave. 2155 University Ave. 3450 Central Ave. 801 Davis St, 2635 Windsor Ave. 2215 Windsor Ave. 1700 Lincoln Ave. 75 Locust St. 1401 Locust St. 350 W 6th St. 35 N Booth St. 1240 Rush St. Dubuque City Election Vote Totals Precinct 2019 2017 2015 2013 1 Rockdale Methodist 286 477 157 304 Ward 1 2 Theisens 305 466 187 344 3 ARC 128 180 44 123 4 Journey Church 168 285 96 193 5 Arbor Oaks 208 6 Summitt Congregational 262 309 186 228 Ward 2 7 St. Peter Lutheran 261 752 394 567 8 Emmaus Bible College 165 235 172 150 9/10 Westminister 369 455 320 319 11 UAW 94 190 273 79 227 Ward 3 12 Windsor Park 191 299 107 265 13 Moose Lodge (Comiskey) 143 226 67 190 14 Sacred Heart 91 130 39 77 15 Holy Trinity 144 263 87 168 16 Elections Annex 72 86 55 48 Ward 4 17 St John's 91 264 200 204 18 Federal Building 159 19 YMCA 226 262 183 176 20 Fogarty Hall 313 335 264 261 Totals 3772 5297 2637 3844 *2019 first combined City/School Election* Prior to legislative changes which combined City and School elections, pct 5 (Arbor Oaks) was combined with pct 7 (St. Peter's). They voted at Tri-State Blind. Pct 18 Federal Bldg) was combined with pct 17 (St John's) at St. John's. Masterpiece on the Mississipp CRENNA M. BRUMWELL, Es CITY ATTORNEY To: MAYOR ROY D. BUOL AND MEMBERS OF THE CITY COUNCIL DATE: FEBRUARY 27, 2020 RE: REFERENDUM PARAMETERS Dubuque AtIlerla City 2007.2012 2013.2017 Now that you have set the ballot language and date for a referendum on the Five Flags Civic Center and Theatre project I wanted to resend the compilation of information I provided to the Mayor and City Council in November 2018 and provide a short summary of the information along with a "cheat sheet" for your legal boundaries based on role and location. Council Members serving on Boards/Commission as Council Member 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. If a board or commission, you serve on in your capacity as a council member wants to take a position on the referendum: You must abstain from participation in the discussion and voting by the board. Individual Capacity Outside of board meetings or City Council meetings members of the City Council: You may take a position in their individual capacity but should be cautious NOT to do so as "Jamie Smith, City Council Member." The Iowa 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. 1 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 Iowa 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, surrender any 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 Iowa 340, 345, 154 N.W. 581, 583 (1915). See also Keokuk Water Works v. City of Keokuk, 224 Iowa 718, 277 N.W. 291 (1938); Johnson v. Inc. Town of Remsen, 215 Iowa 1033, 347 N.W. 552 (1933). 1982 Iowa Op. Atty. Gen. 423 (1982). This carries over to social media as well. 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. Council members may speak and act on behalf of or against the ballot measure SO LONG AS it is done in an individual capacity. City Council as a Body As a body, during a council meeting between now and September 8, 2020: The City Council CAN as a body express an opinion on a ballot measure through the passage of a resolution or proclamation. This is not required, but optional. 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 the attached memo and materials from 2018. Advocacy for a referendum by city council members as city council members, is prohibited now that you've passed a resolution putting the matter on a public ballot in September. Passage of a resolution was the proverbial line in the sand triggering these limitations. A "cheat sheet" for quick reference I've created appears on the next page. 2 Five Flags Referendum Rules City Council What can be done/said depending on role and location Role 4 Location City Council Meeting In Public Online, City Council Page Online, Personal Page ,_> Personal Prohibited No restriction Prohibited No restriction Acting as City Council Representative / Appointee on a Board / Commission Prohibited Prohibited Prohibited Prohibited City Council as a Body VIA RESOLUTION OR PROCLAMATION MAY TAKE A POSITION Prohibited Prohibited Prohibited 3 I've also created a version of the "cheat sheet" reference guide to be distributed to members of City Boards & Commissions which may have relevant purposes and powers related to the referendum. I've attached this document for your review as well. CONCLUSION If additional information is needed throughout this process I am happy to research and seek assistance as needed to properly guide actions in accordance with applicable laws. cc: Michael C. Van Milligen, City Manager Kevin S. Firnstahl, City Clerk Cori Burbach, Assistant City Manager Teri Goodmann, Assistant City Manager Marie Ware, Leisure Services Manager Randy Gehl, Public Information Officer HR Cook, Regional General Manager, SMG/Five Flags Enclosures 4 Masterpiece on the Mississippi CRENNA M. BRUMWELL, ESQ. CITY ATTORNEY To: MICHAEL C. VAN MILLIGEN, CITY MANAGER DATE: OCTOBER 11, 2018 RE: REFERENDUM QUESTIONS Dubuque tend ' 11;1P 2007•2012 2e13.2017 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 fetter 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 how this 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 OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944 TELEPHONE (553) 589-4381 1 FAx (553) 583-10401 EMAIL ebrumwel[a]cityofdubuque.org 5 boards needed to abstain or vote no or something from that item acceptance to reflect their non support or indifference? 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 Iowa 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 boast members or employees of the school district are prohibited from participating, as individuals, in a campaign for a bond issue. The Iowa 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, surrender any 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 Iowa 340, 345, 154 N.W. 581, 583 (1915). See also Keokuk Water Works v. City of Keokuk, 224 Iowa 718, 277 N.W. 291 (1938); Johnson v. inc. Town of Remsen, 215 Iowa 1033. 347 N. W 552 (1933). 1982 Iowa 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. 2 6 Advocacy for a referendum by city council members as city 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. 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 Iowa 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. 3 7 RELEVANT CODE SECTIONS (some emphasislexplanation 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 performing any service or duty which is required of the person by law, or which is performed 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 performance. 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. 4 8 b. To solicit funds fora political candidate or organization. c. To urge support for a candidate or ballot measure to voters. 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. Iowa 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 Iowa 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, Iowa 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. 6 10 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. Iowa 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. 7 11 City of Iowa City MEMORANDUM Date: March 20, 1998 To: Susan Craig, Library Director From: Andrew P. Matthews, Assistant City Attorney .i' Re: Legal Opinion on Library Referendum Support Activities I. Issue You inquired as to wnat activities library personnel may and may not engage in with respect to the likely library referendum. Related to this is the question of proper use of City funds regarding referendum activities. Additionally, you asked about limitations on campaign contributions for political committees, and reporting obligations for political committees. II. Conclusion Public funds may not be used by the City. or its employees, to support or oppose a ballot measure. City personnel may not engage in activities on City time to support or oppose a ballot measure. These prohibitions include the use of all City resources, be they of staff time, vehicles, space, products or supplies, equipment, or material. Library staff or other City employees should not be devoting any of their time or efforts toward the formation of, or activities in, a political committee, while on City time "Information packets" that do not support or oppose the ballot issue may be developed using City resources. if the City, or the Library, as a City department, wishes to put out an "information packet", such material must be silert as to how one should vote, and informational only. For example, if the City were to put together an info packet which presents questions and answers giving reasons for construction of a new addition to the Library, including a statement of the anticipated need for additional space, such information would be permissible. Additionally, City Code section i-9-2A limits total contributions by individuals to $50 and prohibits a political committee from accepting more than $50 total from any contributor City Code section 1-9-2C requires that a committee receiving funds. the original source of which was a loan, shall be required to list the lender as a contributor There are also a number of reporting obligations with respect to political committees under state law that the political committee will need to be aware of and follow. Ill. Analysis The City plans to submit a library referendum ballot issue to voters- Library Director Susan Craig has asked the City Attorney's office for guidance as to the limitations placed on activities and on the use of public funds or property in connection with this ballot issue. It is my understanding that the library staff is gearing up for the belie issue and volunteers will be forming a political committee to advocate on behalf of the ballot measure. With the formation 8 12 Legal Opinion on Library Referendum Support Activities March 20. 1998 Page 2 of such a political committee come certain funding and reporting requirements under state taw, which can be found in chapter 56 of the Iowa Code. Chapter 56.12A of the Iowa Code specifically prohibits the use of public monies for political purposes, including supporting or opposing a bai',ot issue. Set out in its entirety, it states: 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 monies for potitical purposes, including supporting or opposing a ballot issue. This section shall riot be construed to limit the freedom of speech of officials or employees of the state or officials or employees of a governing body of a county, city, or other political subdivision of the state. This section should not be construed to prohibit the state or governing body of a political subdivision of the state from expressing an opinion on the ballot issue through the passage of a resolution or proclamation. Two Iowa attorney general opinions reaffirm such prohibitions and provide certain guidelines on activities and expenditures. fn Opinion No. 91-12-2, December 10, 1991, the attorney general's office reviewed such prohibitions from the perspective of home rule authority, dismissing home rule authority arguments in favor of the underlying policy that expenditures of public funds to promote or appose a ballot issue would be an inappropriate expenditure of public funds. It noted that public funds can be used to prepare and disseminate information to electors concerning reasons for proposing a ballot issue, but not to advocate a particular side on a ballot issue_ It should be noted that the Iowa Supreme Court, in Leonard vs. Iowa State Board of Education 471 N.W.2d 815, 817 (Iowa 1991) cited with approval the above noted attorney general opinion, assuming that the attomey general opinion represented correct statements of Iowa law. The Court determined that it was not improper for the local school board to expend funds to disseminate information to the public concerning the reasons far construction, needs, plans, and anticipated costs. The Court found that such action, in itself, did not amount to promoting a "yes" vote. In another attorney general opinion, No. 92-4-4, April 14, 1992, the attomey general's office opined that public funds may be used to maintain a charter commission through the date of the election on the proposed charter but that public funds may not be used for expressly advocating support for or opposition to the proposed charter, even though private funds may be so expended. It noted that contributions and expenditure of private funds for express advocacy is subject to separate accounting and reporting under Chapter 56 of the Iowa Code. Apart from the prohibitions on the use of public monies for political purposes found in Section 56.12A of the Iowa Code, Chapter 721 of the Iowa Code provides further prohibitions in the context of the criminal law. Section 721.2 (Nonfelonicus Misconduct in Office) provides that any public officer or employee who knowingly does any of the following, commits a serious misdemeanor:.. (8) permits persons to use the property awned by the state cr subdivision or agency of the state to operate a political phone bank far 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; (b) to solicit funds for a political candidate or organization; (c) to urge support for a candidate cr ballot measure to voters. 9 13 Legal Opinion an Library Referendum Support Activities March 20, 1998 Page 3 While Section 721.2(5 and 8) by tneir language only apply to "the property owned by the state or a subdivision or agency of the state," and not to "political subdivisions of the state" which would specifically include municipalities, it would be prudent for you and your staff to conduct your actions as though they did apply to municipalities, as case law and Iowa attorney general opinions suggest such conduct, if conducted by a municipality, or its employees, would be improper. Section 721.4 prohibits any person to use or pernit to be used any motor vehicle owned by the state or any political subdivision for the purpose of transporting any political literature or any person or persons engaging in a political campaign for any political party or any person seeking an elective office. Accordingly, it is recommended that City vehicles not be used in connection with transporting any political literature which advocates a particular view on the ballot measure, as such activity may also violate Section 56.12A provisions prohibiting the expenditure of public monies in either support, or opposrbon to, a ballot measure. As chapter 56 — Campaign Finance — details numerous requirements and prohibitions, I attach a copy of said Chapter herewith to aid you in reviewing its provisions. In brief summary, City resources (including time, space, supplies and the like) may not be used in support of, or opposition to, a ballot measure. City personnel, while on City time, may not engage in activities in support of, or opposition :o, a ballot measure, and City property should not be used in support of, or opposition to, a ballot measure. Finally, with the formation of a political committee to urge support for, or opposition to, a ballot measure, comes numerous reporting requirements, obligations, and prohibitions. Attachment cc: Eleanor Dilkes, City Attorney Steve Atkins, City Manager Karin Franklin, Director — Planning and Community Development Marian Karr, City Clerk 10 14 AHLERS & COONEY INFORMATION AHLERS COONEY ATTORNEYS To: Creme Brumwell FROM: Kristin Cooper DATE: September 18, 2018 RE: Election campaign limitations Ahlers a Cooney, P.C. Attorneys at Lew 100 Court Avenue, Suite 600 ices Moines. Iowa 50309-2231 Phone: 515.243,7611 Fax: 515-243-2149 Www.ahlerslaW.com Kristin Cooper 515.246.0330 krooper§ahlars!awcom 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 1:1 T,CTION? (2) WHAT IS THE PROCESS AND WHAT ARE TIIE REGULATIONS FOR ESTABLISHING A CITIZENS' COMMITTEE '10 PROMOTE A PUBLIC MEASURE? A summary of FAQo related to the above is also attached as a reference. What can the Council, City officials and employees 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 permit the expenditure of public moneys for political purposes including expressly advocating the passage or defeat of a ballot issue. This section shall not be construed to limit the freedom of speech of officials or employees of the stale or of officials or employees of a governing body of a county, city, or other political subdivision oftlte state. 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. 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 Sortingout 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 1 11 15 employees, acting as individuals, may participate in activity to promote or oppose a public measure, It is clear that public funds cannot be used to support or oppose an election. however, a public body that decides to place a proposal before the voters will have gone through an extensive process for deciding, for example, that the project or proposal is needed. The Attorney General issued an opinion with respect to distribution ofa circular concerning construction of a new care facility. The pamphlet gave reasons for construction of the new care facility, including a statement of the anticipated need of additional beds and new City care facility standards. The pamphlet presented the architect's estimate of cost for the proposed building and a statement of the known alternatives. The Attorney General concluded that the data prepared and circulated in the pamphlet appeared to serve the purpose to inform the voters, so the cost of printing was a proper expenditure of public funds. The June 24, 1980 opinion, however, makes it clear that if the pamphlet urges a particular vote on the bond issue, it would no longer be serving an information purpose and so would be an improper expenditure of public funds. In a May 24, 1982 letter opinion, the Attorney General was of the opinion that a school sponsorship of a vote "yes" poster contest or a vote "yes" message in a school newsletter is impermissible, but that school officials or employees were free to work as individuals to promote or oppose a bond issue. In Leonard v. Iowa State Council of Education. 471 N. W.2d 815 (Iowa 1991), the Supreme Court of Iowa upheld the findings of these AG Opinions. The concepts in the above opinions were converted to the statute set out above. Informative materials prepared by a governing body must stop short of promoting a "yes" or "no" vote on a particular ballot issue. Public officers and employees "acting under color of such office or employment" are prohibited by the Official Misconduct chapter of the criminal code from permitting the use of government properly to operate a political phone hank to poll voters on their preferences 1'or candidates on ballot measures, to solicit funds for a political candidate or organization or to urge support fora candidate orhall of measure. Iowa Code '721.2(8). The Ethics and Campaigir Disclosure Council has recently stated its intent to fine officials who violate the law. However, the second paragraph of Iowa Code '68A.505 quoted above makes it clear that officials and employees, as individuals acting on their own, may promote a ballot issue. We believe that they may individually participate in a campaign on one side or the other. They may answer factual questions relating to the needs of the governing body and the reasons for the proposition so long as they are not directed to do so as part of official duties and so long as it is done on the officers' or employees' own time and at their own expense. In summary, public money cannot be spent to advocate for or against a ballot proposition. Material prepared and distributed by the governing body mrtat not advocate a particular vote on a 2 12 16 ballot. Officials and employees, acting as individuals_ may participate in activity to promote or oppose a public measure. Citizens Election Committee. Often public measures draw the support (and possible opposition) of certain factions within the community. One strategy to assist in the education process for a particular proposition is the formation of a private organization to promote public measures. The activity of such organizations is regulated by the Campaign Finance Disclosure Act, Iowa Code chapter 68A, as amended from time to time. In addition, the Iowa Ethics and Campaign Finance Disclosure Council has promulgated rules that provide the details for the operation of campaign committees. One important distinction between ballot issues and the election of individuals to public office is that corporations may contribute to a campaign in support of or opposition to a public measure; corporations may not contribute to the campaigns of individual candidates. 13ased on the discussion above, public funds cannot be used to support these advocacy organizations. When a campaign committee is formed, care should be taken that the procedures are followed in organizing it. Persons who hold responsibility for filing reports, preparing advertising materials and other activity must comply with the statutes and rules to avoid negative publicity as well as being subject 10 reprimands or fines Anotherword of caution is necessary. Members of a governing body who participate in a citizens' committee should be sensitive to the requirements ofthe open meetings law _ If a quorum of the Council is present at a meeting of a campaign committee, the provisions of Iowa Code chapter 21 may apply. 13 17 USE OF PUBLIC FUNDS FOR POLITICAL PURPOSES I. Questions and Answer Related to What Council Members, City Officials and Employees Can I)o in Connection with promotion of a Ballot Measure? Q• Can a public body spend money to advocate the passage (or defeat) of a ballot Ineasu re? A. No. Public money cannot be used for political purposes, including attempts to pass or defeat a ballot issue. 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 permit the expenditure of public monevs for political purposes including expressly advocating the passage or defeat ofa ballot issue. This section shall not be construed to limit the freedom of speech of officials or employees of the slate or of officials or employees of a governing body of a county, city, or other political subdivision of the state. This section also shall not be construed ro 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. Iowa Code § 68A.505 (2017) (emphasis added). This statute provides the boundaries that define the appropriate conduct of governing officials and employees ONCE TILE ELECTION ETAS BEEN CALLED_ Q. Can a public body spend money to distribute informational material about an upcoming ballot measure? A. Yes, as long as that information does not advocate the passage or defeat of the ballot measure_ A public body has the authority to disseminate information to the public concerning the reasons for the ballot issue, such as needs, plans, and anticipated costs. It is important that this information remain neutral and not promote a "yes" or "no" vote_ Q- Cana Council mem her, official or employee campaign for or against a ballot oneasu re? A_ Yes. The Iowa Code specifically states that it does not limit the freedom of speech of officials or employees of a governing body. Council members_ officials, and employees must be sure they are acting as citizens of the community in promoting their position on the hallot measure. 14 18 When utilizing social media, it is imperative that the Council member, official or employee is posting, blogging, etc. solely in their role as a citizen, not as a representative of the public body. These lines can be easily blurred on the recipient - end. Accordingly, use of the utmost of caution is advised. There is no benefit to taking an action that could allow for a challenge to the election to be brought — particularly if the election passes. Discretion is the better part of valor in these situations. Q. Can a public employee, during his or her woic hours, advocate that electors vote, as long as they dun=t advocate HOW to vote? A. Yes, but read the next question and answer. Q. Can a public employee, during work hours, advocate that electors vote by absentee ballot? A. No. Advocating voting absentee is prohibited by a separate code section that makes ita simple misdemeanor for apublic employee during work hours to solicit absentee ballots. However, public employees may advise electors of the opportunitvto vote absentee. The difference is between advising of an opportunity and advocacy. Q. Can a public official or employee wear buttons during the work day which state AVote Yes@? A. An employee, in their individual capacity, may choose to wear a button as long as it is not usually prohibited by the public body's policy. The public body, however, may not encourage or discourage the employee from wearing or not wearing buttons. Q. T-shirts are different than buttons. A public body may have apolicywhich prohibits employees from wearing shirts which contain political messages, advertising or logos. As a result, it is improper for an employee in his/her official capacity to wear a t-shirt either advocating for or against the ballot issue because of their public position of authority and because the public body has consistently enforced its policies, niles, and regulations regarding the wearing of t-shirts. Can an employee tell other employees to vote yes during a meeting held during the work day? A. No. Public funds cannot be used to advocate for or against a ballot measure, accordingly Are public body may not allow the use of any facilities or public funds to support the ballot issue. In this ease, one employee would be using his/her position, as well as public facilities, to urge a vote yes position on the ballot issue which is impermissible. 15 19 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 attending such meeting and urging a vote yes message should make it very clear that helshe 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, a -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 andlor 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 solicit funds, or to urge support for a ballot measure. See Iowa Code § 721.2(8) (2017). Q- Can a public bodysponsorednewsletter advocate a vote yes or no position? A. No, that is direct use of public funds. 16 20 ICY. Questions and Answers Related to Identifying the Guidelines for Establishing a Citizens' Committee to Promote a Ballot Measure Q• What are the governing rules for establishing an organization to support or oppose a public measure? A. The Iowa Campaign Disclosure Act regulates these citizens' organizations. See Iowa Code Chapter 68A. In addition, the Iowa Ethics and Campaign Finance Council has established rules for the operation of campaign committees. The specific code sections of importance for ballot issue committees are: Q. • §68A.102 (Definitions) • §68A.201 (Organization Statement) • §68A.203 (Committee Treasurer) • §68A.401 (Reports Filed with Board) • §68A.402 (Disclosure Report Due Dates) • §68A.402A (Information Disclosed on Reports) What is the difference between campaigning for a ballot issue and campaigning for an individual who is twining for office? A. One important distinction between ballot issues and the election of individuals to public office is that corporations may contribute to a ballot issue campaign, but not to the campaigns of individual candidates. See Iowa Code § 68A.605 (2017). Q. Rule govern campaign committees, whathappens if they are not followed? A. When a campaign committee is formed, it is extremely important that the procedures are followed. Persons responsible for filing reports, preparing campaign materials, and other campaign activities must comply with the statutes and rules to avoid negative publicity, as well as reprimands or fines. Q. What if several Council members join the same citizens' committee? A. Council members who participate in a citizens' committee should keep in mind the requirements of the Open Meetings law. If a quorum of the Council is present at a meeting of the campaign committee, the provisions of Iowa Code chapter 21 (Official Mectings Must be Open to the Public) may apply. 01520431-1V0422-000 17 21 DUBUQUE SPECIFIC QUESTIONS Email from Kristin Billingsley Cooper at Ahlers & Cooney................ Hi Crenna, I've given some thought to your questions and hopefully the information below will help in your analysis. In general, we know that Iowa law allows government bodies to use government resources to provide the public with information on a ballot issue. However, government bodies generally may not use ❑r permit the use of government resources to expressly advocate in favor or against ballot issues. Express advocacy (defined in the Code and the link below to the administrative rules) means a communication that includes explicit words that unambiguously indicate the communication is recommending or supporting a particular outcome in the election of any clearly identified candidate or ballot issue. Here are the Ethics Board's administrative rules on this topic that outline permissible and prohibited conduct: https://www.l eais.iowa.govldocs/ACOlchapte r/03-19-2014.351.5.pdf. One key definition in those administrative rules is 'Public resources" which means the moneys, time. property. facilities. equipment, and supplies of the executive branch of state qovernment, a county, city, public school, or other political subdivision. The Five Flags Center would be a City facility and any use of it would be deemed a use of "public resources." Public resources is a term that is generally fairly encompassing. Even email usage is deemed a use of public resources. We also know that city employees (although SMG appears to employ their own people, from a conservative standpoint they are agents of the City due to their contractual status as managing the Center) may, acting as individuals, participate in activity which promotes ❑r opposes a public measure. Therefore, as long as it is clear they are acting not as part of their official duties but instead on their own time and at their own expense, there should be no issue. The May 1982 letter opinion from the Iowa AG talks about how a principal should make clear that they are acting as an individual and not 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 Iowa Supreme Court has stated: The members of the board ❑f 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, surrender any 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. 18 22 Chambers v. Board of Education, 172 Iowa 340, 345, 154 N.W. 581, 583 (1915). See also Keokuk Water Works v. City of Keokuk, 224 Iowa 718, 277 N.W. 291 (1938), Johnson v. Inc. Town of Rernsen, 215 Iowa 1033, 347 N.W. 552 (1933). 1982 Iowa Op. Atty. Gen. 423 (1982). With those ideas is mind, here are my thoughts: Questions: 1) Is there an issue with the SMG employee running the facility pursuant to a city contract be involved in the referendum committee? I do not think there is an issue with an SMG employee who also runs the facility being involved in the committee, but they should make it clear that they are not acting in any official capacity for the City, and instead they are acting as an individual. This really shouldn't be necessary, because they are not technically an employee of the City, but to the general public, the Five Flags Center is a City facility and the public wouldn't necessarily be able to differentiate between a City employee and an agent of the City who runs a City facility. Therefore, I think it's best that any involvement by SMG employees be clear that it is done by those individuals and not the City. 2) Can city staff discuss referendum issues during the monthly SMG meetings? I think it depends partly on what "issues" are being discussed. Are SMG meetings part of the contractual obligations they were hired to perform for the City? If so, I would say that these meetings should not be used to plan activities that will be carried out by the committee, because that could arguably be a use of City resources. 3) SMG controls the website and social media for the city facility. Can the website and social media link to a website in support of the referendum'? Can the website and social media link to the city website with factual information on the referendum? I would not link the website for the City facility to a website in support of the referendum. I think it's fine to link to a website which contains factual information on the referendum, which does not contain express advocacy. 4) Are there any other minefields you see based on the background information above? The committee will need to organize and report according to the rules of the Iowa Ethics and Campaign Disclosure Board. The committee and SMG employees should be very careful not to organize at the facility, use City emails to distribute advocacy materials, or otherwise use time or resources provided by the City. 19 23 In addition, if there are any really sticky questions, we could contact the Iowa Ethics and Campaign Finance Board for an opinion. They routinely review materials to provide informal advice on whether those materials contain "express advocacy". It would likely be Megan Tooker, the executive director. Her email is megan.tookerl iowa.gov and her phone number is (515) 281-3489. General contact information for the Campaign Finance Board (CFB) is http:llwww. Iowa. govleth icsl. I hope this helps some. We would be happy to dig further as needed on any particular question. Thanks, Kristin 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: 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, SMGIFive Flags 23 24 Five Flags Referendum Rules After Ballot Language Approved Relevant Boards/Commissions* What can be done/said depending an role and location Role Board/Commission Meeting In Public Online, Board/Commission Member Page Online, Personal Page ` Location Personal Prohibited No restriction Prohibited No restriction Acting as Board / Commission Member Prohibited Prohibited Prohibited Prohibited Board/Commission as a Body VIA RESOLUTION OR PROCLAMATION MAY TAKE A POSITION Prohihited Prohibited Prohibited 'Only Boards/Commissions with purposes and powers relevant to Five Flags would have the scope to vote on a resolution or proclamation related to the referendum 25