Thursday, October 25, 2007
In America, as so well stated by President Abraham Lincoln in his address at Gettysburg, we have “government of the people, by the people, for the people.”
The city of Salinas does not seek to turn that notion on its head; indeed, the city wholeheartedly endorses it.
The government, nevertheless, plays an important role in the democratic process: informing the people.
Thus, government operates openly and elected officials have a duty to inform citizens about the operation of government – to be accountable, forthright and open. Government should not operate in secret, or prevent citizens from speaking their viewpoints. Nor should government, in the face of public controversy, advocate a particular vote or clearly urge a result from voters on an identified ballot measure.
However, government entities properly fulfill the democratic goal of informing citizens on the effects of a pending ballot measure, especially if its passage would significantly impact the funding and operation of the government. The government and its staff are in a unique position to know the effects of a potential ballot measure on the operation of government and its provision of community services and programs.
The US Supreme Court has held that government has a legitimate interest in informing, educating and persuading.
In order to achieve these goals, the government must be able to communicate with the electorate. Government informs and fosters robust public debate by publishing agendas of items to be considered by elected officials, giving notice of public meetings and hearings, holding public meetings, and publicly informing citizens of official actions and votes as required by law. In this way, the government is a participant in the “marketplace of ideas,” encourages public input, and provides an opportunity for voices to be heard from those who wish to dissent from or advocate for a particular ballot measure, political position, or course of government action. The government’s role in the debate is important and necessary. The government’s voice enhances the democratic system: it provides facts, ideas, analysis and expertise not always available from private sources.
In this process, government, by its elected officials and staff, engages in many forms of “speech.” The government participates in expressive activity when it warns of the dangers of cigarette smoking, spray paint or alcohol consumption or drug use, neighborhood watch programs, or publishes public safety alerts. Indeed, in this country of representative government we elect officials who will and must speak for all citizens, including those who disagree with government positions on some, if not all, issues. Speech under the First Amendment of the US Constitution and the California Constitution as a vehicle for informing the public should not turn on its source, whether the government, association or individual.
In the case of Morfin Vargas v. City of Salinas, now pending in the California Supreme Court, these significant statewide issues are being considered. In 2001, plaintiff Angie Morfin Vargas, Mark Dierolf and other anti-tax advocates proposed a ballot measure in the city of Salinas that would repeal the city’s utility tax, Measure O. In response to the proposed 13 percent cut in its budget (about $8 million) from Measure O, city of Salinas staff and council members, after a year-long public debate and financial analysis, adopted a “contingency” budget to prepare for the potential loss of millions of operating revenue. During nine public hearings, where budgetary alternatives were openly discussed and debated, each city department recommended such cuts as they believed most minimally impacted city services. For example, with more than $1 million to be cut from the Fire Department budget, paramedic, hazardous materials team and six firefighter positions had to be cut or restructured.
When these and other reports by the city were posted on the city’s webpage along with the City Council’s meeting minutes, and then summarized in the city’s regular quarterly newsletter and a one-page handout available at certain city offices, the city was sued by local taxpayers, alleging those actions were partisan political campaigning. The plaintiffs claimed that the city illegally expended public funds and subverted free elections by not putting the plaintiffs’ message in the city’s website, newsletter and summary sheet. The city and its staff were also sued for damages because the plaintiffs claimed the city’s “speech” was illegal: They argued that, by informing the citizens of the budget and specific tax cuts adopted for the contingency if Measure O were to pass, the city took a partisan position.
The standard for measuring the constitutionality of government speech under these circumstances should be clear and consistent with state law. The city of Salinas urges a straightforward legal test to the California Supreme Court: the government will illegally expend public funds if it makes any statement that “contains express words of advocacy” or “taken as a whole unambiguously urges the passage or defeat of a clearly identified ballot measure (or candidate).” The plaintiffs in the Morfin Vargas litigation prefer a standard that government speech be prohibited completely or is too vague to provide any guidance to government employees. Plaintiffs’ standard punishes government speech based on all of the circumstances surrounding the speech and its “subtle factors,” such as its “style, tenor, and timing.” Under plaintiffs’ view, liability could be based on the color, font size and style of a government “PowerPoint” presentation, website, newsletter, or information sheet.
Should public employees be protected from suit when they convey information to the public about the actions of government? Do they have First Amendment speech protections if they are doing their job reporting information and making policy decisions on budget matters? Should the listener decide whether the government speaker can be sued for delivering accurate, fair and impartial information, but which nevertheless is disputed by or offends the viewpoint of the listener? How should the courts balance these interests?
In Morfin Vargas, the city and its officials and staff were discussing governmental affairs and operations. The freedom of such discussion should be protected by the First Amendment. Government plays a recognized, legitimate informational role in the exchange of ideas. When it does so, it should be given some measure of protection in discharging its duty to inform the electorate on matters of public interest, especially when it addresses and decides fiscal matters directly related to the needs of its citizens and funds to serve the community.
Unless the government advocates for a particular vote on a measure or, without ambiguity, urges a particular outcome in an election, its voice should be protected by the Constitution. Officials and staff should not face personal liability for doing their jobs – informing the public on matters of public interest.
JOEL FRANKLIN IS AN APPELLATE LAWYER IN MONTEREY AND IS CO-COUNSEL, WITH CITY ATTORNEY VANESSA VALLARTA, FOR THE CITY OF SALINAS IN VARGAS V. CITY OF SALINAS.