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DENNIS J. HERRERA
City Attorney
MEMORANDUM
TO: ALL ELECTED OFFICIALS
RE: Use of City Resources for Electronic Newsletters, Constituent E-Mails and Blogs
Several elected officials have inquired about the propriety of communicating with
constituents through electronic newsletters, e-mails, and web logs ("blogs"). Specifically, a
number of questions have arisen about the application of rules prohibiting the use of City
resources for political activities to these types of communications. In this memorandum we set
forth general guidelines and provide illustrations applying them. If you have any questions about
whether any electronic newsletter or other information you plan to distribute comports with these
guidelines, please contact the City Attorney's Office.
I. GENERAL PRINCIPLES
City officials may use public resources, including personnel, paper, postage, and
computers, only for authorized City purposes. State and local law specifically prohibit City
officials from using such resources for campaign or other political purposes. See Cal. Penal
Code § 424 (prohibiting theft of government resources); Cal. Govt. Code § 8314 (prohibiting
officials from using public resources for campaign activity); Cal. Govt. Code § 54964
(prohibiting expenditure of any local agency funds to support or oppose the approval or rejection
of a ballot measure, or the election or defeat of a candidate, by the voters); S.F. C&GC Code
§ 3.230 (prohibiting political activity during working hours or on City premises).
CITY HALL·1 DR. CARLTON B. GOODLETT PLACE, SUITE 234· SAN FRANCISCO, CALIFORNIA 94102-0917
RECEPTION: (415) 554-4700 · FACSIMILE: (415) 554-4745
k:\press\website\opinion\blog.doc
CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY
Memorandum
A misuse of City resources can subject an official to criminal or civil penalties. See
People v. Battin, 77 Cal. App. 3d 635 (1978). A taxpayer may also seek repayment of public
funds wrongfully expended. See, e.g., Stanson v. Mott, 17 Cal.3d 206 (1976).
Thus, an elected official may not use any e-mail, blog, or other form of communication
that uses City resources to influence the voters to support or oppose a candidate or measure.
While there is no bright line rule for determining when a communication is intended to influence
the voters in an election, we can look to the Supreme Court's "style, tenor, and timing" test to
evaluate particular communications. Although the line between proper and improper activity
may be imprecise, City officials should bear in mind that the public as a whole funds the
communication and that government communications serve a different function than private
media or publications funded by campaigns. Striving to provide factual and balanced
information and materials, as opposed to information that reads like campaign literature
supporting or opposing a candidate or measure, should avoid concerns that City resources are
being used to advance or oppose candidates or measures.
• TIMING
The closer in time to an election that information is distributed, the more likely that some
content could be viewed as political activity. For example, an article in a newsletter about a
neighborhood problem might be unremarkable two years before an election, even if a bit strident.
But the same article might take on a more political tone if the newsletter is sent 18 months later
when the issue addressed is a central dividing point between two candidates. For this reason, in
evaluating the content of a newsletter, blog, or other communication, the sponsor must consider
the timing of the communication. In addition, even if a single communication, viewed in
isolation, does not constitute political activity at the time it is made, the communication, together
with subsequent actions the officer takes, may later be viewed as part of a pattern of political
activity. The following examples illustrate some of these considerations.
1
The mass-mailing rule prohibits the mailing at public expense of more than 200 substantially
similar items in a calendar month that feature an elected official. Cal. Govt. Code § 89001. The
California Fair Political Practices Commission, which administers this law, has not yet extended
it to items sent by e-mail. This memorandum does not address this restriction on mailings.
CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY
Memorandum
• TENOR
Even with respect to matters being voted on at an election, the government may provide
balanced, neutral analysis. Thus, communications that are strictly factual, balanced, and
impartial generally should not be characterized as improper political activity. But the more a
communication departs from the strictly factual and impartial presentation of information, the
increased risk the sponsor runs that the communication may be viewed as improper political
activity.
The official runs the risk that this communication may be viewed
as political activity and not as informational activity because it is
not a balanced, neutral presentation of information, and seems
more directed at attacking the opposing candidate in the election.
• STYLE
Nothing in a government funded or supported electronic newsletter, webpage, blog, or
other communication should include campaign literature, any reference to a campaign, or any
link to campaign materials or websites. As the Supreme Court has observed, the use of public
funds for campaign advertisements "unquestionably constitutes improper campaign activity."
Stanson v. Mott, 17 Cal.3d at 221. Communications that look like campaign advertisements are
likely to be viewed as political, rather than informational activity.
Because the webpage looks very much like the official's campaign
literature, even though the webpage pre-existed the campaign
literature, the webpage will likely be viewed as improper political
activity.
pockets. The two officers are not currently running against each
other.
III. CONCLUSION
Public resources are to be used for the public's business, as authorized by law. City
officials may not use public resources to engage in campaign and other political activity.
Distinguishing between permissible informational activity and impermissible political activity
may at times be difficult. Presenting fair and balanced information to the voters will not be
viewed as political activity and therefore public officials can avoid concerns about misuse of
resources by confining their publicly financed communications to this type of content.