In the fall of 2012, Ohio Revised Code Section 9.03 was amended. ORC 9.03 provided (and still provides) that no governing body of a political subdivision shall use public funds to support or oppose the passage of a levy or bond issue. As the law was previously written, there was no clear enforcement mechanism to ensure that public funds were not spent for political purposes. Under the recently amended law, it is a first degree misdemeanor for any person to knowingly conduct a direct or indirect transaction of public funds to the benefit of eight specifically defined groups.
In light of the criminalization of the statutory provisions, now is a good time for public entities to self-audit their practices to ensure that they are not violating the law.
WHAT DOES ORC 9.03 PROVIDE?
The statute grants a governing body of a political subdivision general authority to "use public funds to publish and distribute newsletters, or to use any other means, to communicate information about the plans, policies, and operations of the political subdivision to members of the public within the political subdivision and to other persons who may be affected by the political subdivision." However, the statute also states that generally no governing body of a political subdivision shall use public funds to:
- publish, distribute, or otherwise communicate information that supports or opposes the nomination or election of a candidate for public office, the investigation, prosecution, or recall of a public official, or the passage of a levy or bond issue; and
- compensate any employee of the political subdivision for time spent on any activity to influence the outcome of an election for any of the purposes described.
Notably, the statute does not prohibit the use of public funds to compensate an employee of a political subdivision for attending a public meeting to present information about the political subdivision's finances, activities, and governmental actions in a manner that is not designed to influence the outcome of an election or the passage of a levy or bond issue, even though the election, levy, or bond issue is discussed or debated at the meeting.
The fact that public money may not be expended to promote or oppose ballot issues, absent clear statutory authority, reflects the conviction that the right to approve or reject a ballot issue of any sort is bestowed upon the electors, and the unauthorized public expenditure to influence their votes would interfere with that right.
WHAT WAS AMENDED?
Language was added to provide that no person shall knowingly conduct a direct or indirect transaction of public funds to the benefit of any of the following:
- A campaign committee;
- A political action committee;
- A legislative campaign fund;
- A political party;
- A campaign fund;
- A political committee;
- A separate segregated fund;
- A candidate.
Significantly, the amendments expressly provide that, unless otherwise prohibited by law, a "person" may speak in support of or in opposition to any candidate, recall, referendum, levy, or bond issue on his/her own time. Additionally, a political subdivision may sponsor, participate in, or do:
- Charitable or public service advertising that is not commercial in nature;
- Advertising of exhibitions, performances, programs, products, or services that are provided by employees of a political subdivision or are provided at or through premises owned or operated by a political subdivision;
- Licensing an interest in a name or mark that is owned or controlled by the political subdivision.
However, whoever violates the new prohibitions may be found guilty of a first degree misdemeanor. Anyone found guilty of a first degree misdemeanor in Ohio can be sentenced to up to six months in jail and fined up to $1,000.
WHAT DOES "PUBLIC FUNDS" MEAN?
Although the phrase "public funds" is not defined in the statute, existing Ohio Attorney General Opinions provide guidance. Under the old law, the Ohio Attorney General opined that even nominal expenditures—such as the time it takes a public employee to put a link on a website—that can be interpreted to support or oppose a levy are violations of the law. There is no reason to suspect that the amendments would change this legal interpretation. Accordingly, the amended law arguably implicates any action that would involve the expenditure of public funds for personnel or general expense costs in support or against a variety of political activity.
Significantly, enforcement agencies have been watching this issue closely. For example, a county prosecutor in the region considered charging a school superintendent for violating the law because he sent out a letter using public funds in which he criticized Governor Kasich's school funding proposal and stated that Governor Kasich should not be re-elected. (The superintendent in question later repaid the school district.) Additionally, a local area county auditor recently sent out an e-mail warning political subdivisions that the law could be interpreted to prohibit the free use of public buildings by certain individuals or groups.
Accordingly, public entities should be careful in what materials they publish and how they allow access to their facilities in order to balance the public right of access and the obligations under revised ORC 9.03.
WHAT SHOULD YOU DO?
Conduct a self-audit of your practices to ensure that you are not directly or indirectly using public funds to support political causes or candidates. Train your staff accordingly. Review your public use policy.