Michigan Advisory Opinions November 28, 1979: AGO 5597 (November 28, 1979)

AGO 5597.

You have requested my opinion as to the extent to which state agencies, commissions or boards are permitted to express opinions or advocate positions on issues of public interest.

You have enclosed, by way of illustration, a copy of an article published in the October, 1978 Michigan Civil Rights Commission Newsletter paid for with public funds. The article sets forth the position of the Civil Rights Commission and its Director on certain proposed state constitutional amendments.

The question you have presented has been considered by this office on prior occasions. OAG, 1965-1966, NO 4291, p 1, 2 (January 4, 1965), reviewed whether a school board may expend funds to publish a booklet which contained relevant information concerning school financing and urged a favorable vote on a proposal which would increase the tax limitation and permit the issuance of bonds. It was concluded that:

'. . . in the absence of authority, public funds cannot be expended to influence the outcome of an election. . . .'

The rationale of OAG, 1965-1966, No 4291, supra, was that the expenditure of such funds '. . . might be contrary to the desire and even subject to the disapproval of a large portion of the county taxpayers. . . .' Mosier v Wayne County Board of Auditors, 295 Mich 27, 31; 294 NW 85 (1940).

Subsequently, OAG, 1965-1966, No 4421, p 36 (March 15, 1965), considered whether a county board of supervisors may appropriate and spend county funds to print and distribute material advocating a favorable vote on the issue of whether a new county building should be constructed. This opinion, citing OAG, 1965-1966, No 4291, supra, and Mosier v Wayne County Board of Auditors, supra, concluded that, in the absence of authority, a county board may not expend public funds to attempt to influence the outcome of the election.

Most recently, in OAG, 1969-1970, No 4647, p 87, 89 (September 29, 1969), it was asked, inter alia, whether an elected member of the State Board of Education may use materials and supplies of the Department of Education to communicate to the public statements of individual members of the Board of Education. The opinion held:

'There is likewise no bar to the use of materials and supplies by the department of education to furnish information to the public as to views of individual members of the State Board of Education. Indeed, in a representative government it is imperative that the members of the public be informed completely on all issues. . . .'

Const 1963, art 5, Sec. 29 established the Civil Rights Commission and empowered the Commission:

'. . . to investigate alleged discrimination against any person because of religion, race, color or national origin in the enjoyment of the civil rights guaranteed by law and by this constitution, and to secure the equal protection of such civil rights without such discrimination. . . .'

The Department of Civil Rights was created by the Executive Organization Act of 1965, 1965 PA 380, Sec. 475; MCLA 16.575; MSA 3.29(475).

The Administrative Procedures Act, 1969 PA 306, Sec. 7(h); MCLA 24.207(h); MSA 3.560(107)(h) recognizes a state agency, such as the Department of Civil Rights, may publish informational pamphlets which are solely explanatory. Such publications have been excluded from complying with the rule making procedures required by the Administrative Procedures Act. In addition, 1978 PA 402 contained the general appropriation to the Department of Civil Rights and includes, as a specific line item, an appropriation for a public affairs function within the Department. In the same vein, OAG, 1969-1970, No 4647, supra, recognized that the legislature has consistently made appropriations for various types of public information functions in the various departments of state government.

Therefore, I am of the opinion that, while a commission or board may expend appropriated funds to inform the public in an objective manner on issues relevant to the function of the commission or board, it may not expend public funds to urge the electorate to support or oppose a particular candidate or ballot proposal.

Frank J. Kelley

Attorney General