Cities Can’t Adopt Resolutions in Support of State Constitutional Amendments
At the November 7, 2017, general election, Texas voters will be asked to approve or reject three amendments to the Texas Constitution that will directly affect cities. City officials may personally support or oppose the amendments, but remember that a city council is prohibited by Election Code section 255.003 from adopting a resolution either way. Doing so could subject city officials to criminal penalties and civil fines.
Section 255.003 provides that “[a]n officer or employee of a political subdivision may not knowingly spend or authorize the spending of public funds for political advertising.” “Spending” of public funds is interpreted by the Texas Ethics Commission to include the use of political subdivision employees’ work time, the use of existing political subdivision equipment, and the use of facilities maintained by a political subdivision. “Political advertising” is defined as a communication supporting or opposing a measure that “appears…in a…written communication.”
The Texas Ethics Commission has also indicated that, in certain situations, comments by city council members at a recorded public meeting that is broadcast over a public access channel could give rise to a violation of section 255.003. According to Ethics Advisory Opinion No. 456 (2004), “we can imagine a situation in which one or more city council members might arrange a discussion of a matter not pending before the city council with the hope that broadcasts of the discussion would influence the outcome of an election [and thus, rise to a violation of Section 255.003].”
At a minimum, the adoption of a resolution by a city council would require an employee to document the subject of and final vote on the resolution in the official minutes or recording of the meeting at which the resolution is considered. In this way the adoption of either an oral or written resolution would require a city employee’s work time and equipment, and thus constitutes a spending of public funds. Moreover, such resolutions are often posted on a city’s website either as stand alone documents or as part of the minutes.
While there appears to be no opinion or case directly on point, a written resolution supporting or opposing a constitutional amendment proposition likely constitutes prohibited political advertising. The city officials who are responsible for adopting such a resolution could be committing a Class A misdemeanor. In addition, the Ethics Commission has authority to impose fines for violations of section 255.003. Finally, the Ethics Commission has also indicated that action taken in violation of section 255.003 may constitute a violation of Penal Code section 39.02, which prohibits government resources from being used for campaign purposes.
Of course, nothing prohibits an elected official – on his or her own time and not using public funds – from advocating for or against passage.