Michigan Advisory Opinions August 04, 1993: AGO 6763 (August 4, 1993)

AGO 6763.

You have asked a question which may be stated as follows:

May the board of education of a local school district allow a ballot committee to lease school facilities, including school offices and phones, for the purpose of contacting the electorate of the school district to advocate the committee's position on a school millage ballot proposal?

The attachments to your letter indicate that a local school district permitted a group organized to promote the passage of a school millage proposal to use school board offices and phones to call voters in the district to solicit their support of the millage.

School districts possess only those powers granted to them by the Legislature expressly or by reasonably necessary implication. Senghas v L'Anse Creuse Public Schools, 368 Mich 557, 560; 118 NW2d 975 (1962).

OAG, 1987-1988, No 6423, p 33 (February 24, 1987), concluded that school districts could not rent or lease public facilities including school buildings and public offices to an independent political ballot or candidate committee. That opinion also concluded that school districts could not give or loan office supplies and office equipment to independent political ballot or candidate committees. This conclusion was based on the well-established principle that boards of education of school districts have no authority to expend public funds to influence the electorate in support of or in opposition to a particular ballot proposal. While school districts may objectively inform voters about facts and issues involved in ballot proposals, school district funds may not be used to endorse a particular candidate or position. OAG, 1965-1966, No 4291, p 1 (January 4, 1965); Mosier v Wayne County Bd of Auditors, 295 Mich 27, 31; 294 NW 85 (1940).

Boards of education of local school districts and intermediate school districts may grant the use of school facilities to organizations and citizen groups. The School Code of 1976, 1976 PA 451, MCL 380.1268; MSA 15.41268, section 1268, provides:

(1) The board of a school district or an intermediate school district, upon the written application of a responsible organization located in the school district or intermediate school district, or of a group of at least 7 citizens of the school district or intermediate school district, may grant the use of school grounds, schools, or building facilities of the school district or intermediate school district as community or recreation centers for the entertainment and education of the people, including the adults and children of school age, and for the discussion of topics tending to the development of personal character and of civic welfare. The occupation shall not infringe seriously upon the original and necessary uses of the properties.

(2) The board of the school district or intermediate school district shall prescribe regulations for occupancy and use to secure fair, reasonable, and impartial use of the properties. [ Emphasis added.]

This provision of the School Code of 1976 restricts the permissible uses of school facilities by public groups to those in which the facilities are used "as community or recreation centers for the entertainment and education of the people ... for the discussion of topics tending to the development of personal character and of civic welfare." This section does not authorize the board to grant unlimited access to all parts of a school building for any purpose.

The board of a school district may permit community groups to use school facilities for purposes of public assembly to engage in the free expression and exchange of thoughts and ideas. School facilities such as auditoriums, gymnasiums, and stadiums may be made available for public meetings and gatherings for activities which are traditionally carried on in public arenas. Subsection 1268(2) expressly requires that access to school facilities for such gatherings must be fair and impartial. Citizen groups and organizations may not be denied the use of school facilities which have been made available to other groups and organizations because they intend to discuss their opposition to a prior decision of the board of education. OAG, 1981-1982, No 5981, p 375 (September 18, 1981).

The lease of school board offices and telephones by a ballot committee seeking to advocate a particular position, however, must be distinguished from use of school premises by citizen groups for communicative purposes under section 1268 of the School Code of 1976. Use of school offices and school equipment by a ballot committee to carry on individual telephone conversations to solicit support of a school millage proposal is not the kind of public assembly permitted by section 1268. School districts may not permit their offices and phone equipment to be used in a restrictive manner for advocacy of one side of a ballot issue, especially when the issue being advocated is a school district millage proposal. See OAG, 1987-1988, No 6423, supra. School districts may not endorse a particular candidate or ballot proposal. OAG, 1965-1966, No 4291, supra.

It is my opinion, therefore, that the board of education of a local school district may not allow a ballot committee to lease school facilities, including school offices and phones, for the purpose of contacting the electorate of the school district to advocate the committee's position on a school millage ballot proposal.

Frank J. Kelley

Attorney General