Ethics Rules Affect City Newsletters
Recently adopted rules of the Texas Ethics Commission attempt to clarify when certain city newsletters violate the law that prohibits the use of public funds for political advertising. The rules state that newsletters of public officials (such as mayors or councilmembers) are not illegal political advertising so long as: (1) there aren't more than two pictures of the official per page and the pictures don't cover more than 20 percent of the page; (2) there aren't more than eight personal references ("I", "me," etc.) per page, and (3) the newsletter isn't self-promoting and does not advocate passage of a measure.
The rules were adopted in response to an actual case of a city-funded newsletter in which the number of pictures and personal references to a particular city councilmember who was running for reelection was high enough that the Ethics Commission felt the newsletter crossed the line into improper political campaigning with city revenue. The rules were intended to provide a "safe harbor" regarding photographs and references, below which an official could feel relatively safe from investigation.
Unfortunately, the safe harbor aspect to the rules is somewhat misleading. It's entirely possible for a mayor's monthly newsletter to fall below the threshold of photos and references in the rules and still be illegal because it advocates the passage or defeat of a measure, such as a bond election. TML filed written comments and testified against the rules on the grounds that they might create such a false sense of security. Nevertheless, the rules went into effect on January 3, 2008.
City officials who publish newsletters should keep the following advice in mind: a city-financed newsletter may never advocate the passage or defeat of any measure such as a bond election or charter amendment. This prohibition applies regardless of the presence, absence, or number of photographs or personal references in the newsletter. Officials should always discuss any concerns about such newsletters with the Ethics Commission and their own legal counsel prior to publication, as the consequences for a violation can be criminal prosecution.
The rules can be read in their entirety at: http://www.sos.state.tx.us/texreg/archive/November92007/PROPOSED/1.ADMINISTRATION.html#3