Alabama Advisory Opinions March 29, 2023: AGO 2023-024

Advisory Opinion Text

Honorable Todd Freeman

Superintendent of Education

Vestavia Hills Board of Education

1204 Montgomery Highway

Vestavia Hills, Alabama 35216

Political Activities - Referendum Election - Education, Boards of- Elections - Public Funds - Shelby County

To "advocate a specific position" for the specific purposes of section 17-17-5.1(c) of the Code of Alabama means to argue that one side of an argument should be supported rather than to merely objectively disclose relevant factual information.

The Board may advocate for or against a ballot measure where it does not expend any public funds. The Board may not so advocate when the means of communication used is paid for by public funds, even if de minimis.

The Board may expend public funds and use non-financial Board resources (e.g., printing informational flyers), including informing the public about a ballot measure under subsection 1(c) of the Act, encouraging the City's residents to vote on a specific ballot measure, and informing the public about educational services that would be gained if the City's ad valorem taxes are increased pursuant to the referendum, so long as the Board does not advocate for one side of the issue and objectively presents the facts relevant to both sides.

Dear Dr. Freeman:

This opinion of the Attorney General is issued in response to your request on behalf of the Vestavia Hills Board of Education ("the Board").

QUESTIONS

1. What does it mean to "advocate a specific position" for the specific purposes of subsection (c) of Legislative Act No. 2022-428 ("the Act")?

2. May the Board advocate for or against a ballot measure where it does not expend public funds from the effective date? For example, discussing ballot measures at a public assembly, through intercom announcements, or via email or text communications?

3. May the Board expend public funds and use non-financial Board resources (e.g., printing informational flyers) under subsection 1(c) of the Act to inform the public about a ballot measure where the Board does not advocate a specific position regarding the ballot measure?

4. May the Board expend public funds and use non-financial Board resources under subsection 1(h) of the Act to encourage the City's residents to participate in the vote on a specific ballot measure where the Board does not advocate a specific voting position?

5. May the Board expend public funds and use non-financial Board resources under subsection l(j) of the Act to inform the public about the educational services that would be gained if the City's ad valorem school taxes are increased pursuant to the referendum?

FACTS AND ANALYSIS

As you state in your opinion request, Governor Kay Ivey signed the Act (codified at § 17-17-5.1, Code of Alabama, effective January 1, 2023) into law on April 14, 2022, which prohibits public officials and employees from expending public funds to advocate in favor of or against statewide and local ballot measures. Ala. Acts No. 2022-248. Anticipating that the City of Vestavia Hills will soon vote on whether to support an increase in ad valorem tax funding for public school purposes, you ask this Office for guidance on certain questions to ensure that the Board complies with the new law. Specifically, you ask what it means to "advocate a specific position" under subsection 1(c) of the Act (codified at § 17-17-5.1(c), Code of Alabama, effective January 1, 2023); whether the Board may advocate for or against a ballot measure when it does not expend public funds; and whether the Board may expend public funds and use non-financial Board resources without advocating a specific position to inform the public about a ballot measure under subsection 1(c) of the Act, to encourage the City's residents to vote on a specific ballot measure, and to inform the public about educational services that would be gained if the City's ad valorem taxes are increased pursuant to the referendum.

To understand the reasoning behind the Act's passage, it is useful to review how this Office has previously considered the question of whether local boards of education have the authority to expend public funds to advocate for one side or another of any political campaign, including ballot measures. In its opinion to Honorable Broox G. Garrett, Jr., Attorney at Law, Brewton City Board of Education, dated Mar. 20, 1991, A.G. No. 91-00193, this Office held that local boards of education lacked such authority because there was no statutory basis. In its opinion to Honorable Donald B. Sweeney, Jr., Attorney, Mountain Brook City Board of Education, dated Sep. 22, 1997, A.G. No. 97-00288, p. 4, however, this Office held that, although there was no statute expressly authorizing a local board of education to hire a lobbyist, such authority was implied under its general authority set out in section 16-11-9 of the Code which vests it with "all the powers necessary or proper for the administration and management of the free public schools . . . ." This reasoning was extended in its Opinions to Honorable Ed Richardson, State Superintendent, Department of Education, dated Aug. 28, 2003, A.G. No. 2003-232, at p. 2, and to Honorable Jim Cams, Alabama House of Representatives, dated Aug. 28, 2003, A.G. No. 2003-231, at p. 2, where this Office reasoned that "inherent in that broad grant of authority [to promote the interest of the schools in its jurisdiction] was the advocacy of certain legislative measures that would assist the school district." Furthermore, citing Slawson v. Alabama Forestry Comm'n., 631 So. 2d 953 (Ala. 1994), this Office noted that concerns under section 93 of the Constitution of Alabama, which prohibits the use of public funds to aid private entities, were not implicated so long as the expenditures were determined to be for a "public purpose." Richardson, at pp. 3-4, citing Ala. Const, art. IV, § 93. Finally, the Richardson opinion addressed section 17-l-7(c) of the Code (now recodified under § 17-17-5(a)), which prohibits state and local government employees from using government agency funds, property, or time for "political activities." Id. at pp. 6-8. Because this Office limited the term "political activities" as used in section 17-l-7(c) to politics involving candidates or partisan elections, it held that State and local boards of education could expend public funds to advocate for issue-related ballot initiatives so long as they determine that the expenditures serve a public purpose. Id.

After Richardson, the Alabama Supreme Court held in State Superintendent of Educ. v. Alabama Educ. Ass'n, 144 So. 3d 265, 278 (Ala. 2013), that the term "political activity," as used in section 17-17-5(b)(l) of the Code, encompassed more than "electioneering activities" (i.e., activities undertaken in support of candidates for elected offices), and extended to encouraging people to vote for issue-related measures such as proposed constitutional amendments. The Court, however, clarified that its "construction of the term 'political activity' applied only as that term is used and expressly 'limited' in subsection (b)(1) of the Act, and this construction of the term 'political activity' is not intended to be applied beyond the narrow 'limited' parameters of subsection (b)(1)." Id. at 278. Therefore, the State Superintendent of Educ. Court's holding left open the interpretation that, for the remainder of section 17-17-5 of the Code (including section 17-17-5(a) of the Code), "political activity" might be limited to candidate or election-related politics and that public funds might be expended on issue-related measures.

In the context of the Richardson opinion and State Superintendent of Educ, the Act (§ 17-17-5.1, effective January 1, 2023) was passed precisely to clarify the circumstances under which public officials and employees may expend funds related to ballot initiatives. Section 17-17-5.1(b)(1) of the Code expressly prohibits public officials and employees from expending public funds to advocate in favor of or against statewide and local ballot measures, even if the Board determines that it serves a public purpose:

(b)(1) Any provision of law to the contrary notwithstanding, a public official or public employee may not expend any public funds from any source for activities to advocate in favor of or against a statewide or local ballot measure, even if the public official or public employee has determined that the expenditure serves a public purpose.

(2) For the purposes of this subsection, the activities prohibited are those enumerated in subdivision (b)(1) of Section 17-17-5, including the presentation or distribution of any political literature or the placement of any sign, banner, marker, or other political poster on the property of a governmental body, if the purpose is to advocate in favor of or against a statewide or local ballot measure.

ALA. CODE § 17-17-5.1(b) (Westlaw 2023) (emphasis added). By express reference, section 17-17-5(b)(l) of the Code lists the "activities prohibited" for which public funds may not be expended:

a . Making contributions to or contracting with any entity which engages in any form of political communication, including communications which mention the name of a political candidate.

b. Engaging in or paying for public opinion polling.

c. Engaging in or paying for any form of political communication, including communications which mention the name of a political candidate.

d. Engaging in or paying for any type of political advertising in any medium.

e. Phone calling for any political purpose.

f. Distributing political literature of any type.

g. Providing any type of in-kind help or support to or for a political candidate.

ALA. CODE § 17-17-5(b)(l) (Supp. 2021) (emphasis added).

When interpreting the Act, this Office must seek to find the intent of the legislature by looking at the plain meaning of the Act's language. Under the established rules of statutory construction, words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used, a court is bound to interpret that language to mean exactly what it says. IMED Corp. v. Sys. Eng'gAssocs. Corp., 602 So. 2d 344, 346 (Ala. 1992).

When possible, "the intent of the legislature should be gathered from the language of the statute itself." Perry v. City of Birmingham, 906 So. 2d 174, 176 (Ala. 2005) (quoting Beavers v. Cnty. of Walker, 645 So. 2d 1365, 1376 (Ala. 1994)). Furthermore, this Office stated in its opinion to Honorable Miriam Shehane, Chairperson, Alabama Crime Victims Compensation Commission, dated Apr. 1, 1996, A.G. No. 96-00170, p. 4, that "[s]tatutes are in para materia where they deal with the same subject, and such statutes should be construed together to ascertain the meaning of each and should be resolved in favor of each other to form one harmonious plan and give uniformity to the law."

You first ask what it means to "advocate a specific position" under subsection (c) of the Act. According to section 17-17-5.1(c) of the Code, "[providing an objective analysis or factual information on a ballot measure which does not advocate a specific position is not a prohibited activity under subsection (b)." Ala. Code § 17-17-5.1(c) (Westlaw 2023) (emphasis added). Because the term "advocate" is also used in subsection (b) to indicate what activities are prohibited from being funded by public funds, the same meaning must be given in both instances. Ala. Code § 17-17-5.1(b) (Westlaw 2023); see Ex parte Jackson, 625 So. 2d 425, 428 (Ala. 1992) ("[Wjhere a clause or phrase relating to the 'same object or subject matter' is repeated throughout an act, such clause or phrase should receive a consistent construction throughout the act."). The plain meaning of "advocate" is "to support or recommend publicly" or "to plead in favor of . . . before . . . the public." Advocate, Webster's Third New International Dictionary (2002). Using this definition in the context of subsections (b) and (c), to "advocate a specific" position means to argue that one side of an argument should be supported rather than to merely disclose relevant facts in an objective manner.

You next ask if the Board may advocate for or against a ballot measure without expending any public funds, such as discussing ballot measures at a public assembly, through intercom announcements, or through email or text communications. Newly enacted section 17-17-5.1(b)(1) of the Code expressly prohibits the expenditure of public funds for activities to advocate for or against a ballot measure but does not mention the use of government time or property for such purposes. Ala. Code § 17-17-5.1(b)(1) (Westlaw 2023); cf Ala. Code § 17-17-5(a) (Supp. 2021) ("No person . . . shall use any . . . governmental agency funds, property, or time, for any political activities."). We must therefore determine whether the Act's prohibitions extend to the use of already acquired assets that were purchased for some purpose other than advocacy.

To "expend" means "1. to pay out; and 2. to make use of for a specific purpose." Expend. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (2002). Discussing ballot measures at a public forum or through intercom announcements, email, or text communications presumably involve the use of government property or employee time (e.g., the school intercom system, computers) which would involve the use of public funds, even if de minimis. Section 17-17-5.1(b)(2) of the Code expressly lists, as examples of prohibited activities, items that might appear to be "de minimis" but would be carried out through public funds, such as "the placement of any sign, banner, marker, or other political poster on the property of a governmental body." Ala. Code § 17-17-5.1(b)(2) (Westlaw 2023). Moreover, this section incorporates the enumerated activities set forth in section 17-17-5(b)(l) as "activities prohibited." Those enumerated activities are broad and far reaching and include "engaging in or paying for" polling, political communications, political advertising, phone calling, distributing political literature, and "in-kind" support for a political issue. Accordingly, and because section 17-17-5.1 (b)( 1) of the Code prohibits the expenditure of "any public funds from any source," the safer course would be to avoid using property that has been purchased with public funds or the duty time of officials and employees to advocate for or against a ballot measure. Ala. Code § 17-17-5.1(b)(1) (Westlaw 2023).

Your third, fourth, and fifth questions address whether the Board may expend public funds and use non-financial resources for certain purposes, including informing the public about a ballot measure under subsection 1(c) of the Act, encouraging the City's residents to vote on a specific ballot measure, and informing the public about educational services that would be gained if the City's ad valorem taxes are increased pursuant to the referendum. As discussed above, section 17-17-5.1(b) of the Code does not prohibit such activities so long as the Board does not advocate for one position or another concerning a ballot initiative.

Informing the public about a ballot measure, accordingly, would be permissible so long as the Board does not advocate that residents vote a certain way and facts supporting both sides of an issue are provided. Indeed, section 17-17-5.1(c) of the Code expressly states that "[providing an objective analysis or factual information on a ballot measure which does not advocate a specific position is not a. prohibited activity under subsection (b).'" Ala. Code § 17-17-5.1(c) (Westlaw 2023) (emphasis added). Although subsection (c) does not expressly mention the use of public funds, its reference to subsection (b) indicates that the use of funds to inform the public about a ballot measure is permissible. As discussed above, the "activities prohibited" under subsection (b) are not prohibited in isolation, but rather are prohibited if the activity advocates for or against a ballot measure and public funds are expended.

Expending funds to encourage City residents to vote, likewise, is permissible so long as the Board does not advocate for such residents to vote in a certain manner. Section 17-17-5.1(h) of the Code provides that "[n]othing in this section shall prohibit a governmental body from informing members of the public about pending elections, promoting citizen participation in the voting process, or encouraging citizens to vote on an election day as part of their civic duty." Ala. Code § 17-17-5.1(h) (Westlaw 2023) (emphasis added). Expenditures on such activities would fall within the Board's general authority under section 16-11-9 of the Code to administer and manage free public schools, and the expenditure of public funds would not be prohibited under section 17-17-5.1(b) of the Code so long as the Board does not advocate for a position on a ballot measure.

Expending funds to inform the public about educational services that would be gained if a ballot measure is passed would be permissible so long as the Board presents any negative consequences occurring if the measure is passed, such as any increase in the tax rate. Section 17-17-5.l(j) of the Code provides that "[njothing in this section shall prevent a local school district or other governmental body from expending local revenue to inform members of the public as to services that would be cut if ad valorem taxes are not passed or renewed." Ala. Code § 17-17-5.l(j) (Westlaw 2023). Although there is no corresponding provision expressly authorizing the expenditure of public funds to inform the public about services to be gained from the passage of a ballot measure, such expenditures would be permissible so long as the Board does not advocate for one side of the issue and objectively presents the facts relevant to both sides.

The Richardson and Cams opinions are overruled insofar as they conflict with this opinion.

CONCLUSION

To "advocate a specific position" for the specific purposes of section 17-17-5.1(c) of the Code of Alabama means to argue that one side of an argument should be supported rather than to merely objectively disclose relevant factual information.

The Board may advocate for or against a ballot measure where it does not expend any public funds. The Board may not so advocate when the means of communication used is paid for by public funds, even if de minimis.

The Board may expend public funds and use non-financial Board resources (e.g., printing informational flyers), including informing the public about a ballot measure under subsection 1(c) of the Act, encouraging the City's residents to vote on a specific ballot measure, and informing the public about educational services that would be gained if the City's ad valorem taxes are increased pursuant to the referendum, so long as the Board does not advocate for one side of the issue and objectively presents the facts relevant to both sides.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact John Porter of my staff.

Sincerely,

STEVE MARSHALL Attorney General

BEN BAXLEY Chief