Legal Alerts Oct 24, 2019

When Public Opinion Surveys Become Reportable Expenditures Under the Political Reform Act

FPPC Advises When Public Agencies Can Survey Voters and Disseminate Results

Public agencies that wish to conduct public opinion surveys before the next election received additional guidance from a recent Fair Political Practices Commission advice letter.
A public agency may conduct a public opinion survey to obtain feedback on key issues facing the community without triggering campaign reporting or other disclaimer requirements under the Political Reform Act, so long as the survey does not constitute “campaign activity.” An example of campaign activity would be disseminating material that expressly advocates for or against a clearly identified measure or unambiguously urges a particular election result. On the other hand, a public agency may send voters impartial educational or informational materials regarding ballot measures mentioned in the survey without constituting campaign activity — provided the materials are truly educational and informational in nature.
The letter comes in the wake of a situation in which the City of Merced paid a third party vendor to conduct a public opinion survey containing several possible ballot measures with hypothetical “pro” and “con” arguments provided for each to gauge how City residents might stand on particular issues. The City also wanted to mail the survey results to citizens for educational and informational purposes.
The FPPC reviewed the draft survey and determined that it was exploratory in nature and was not intended for use in campaign-related activity at the time. The FPPC particularly noted that these activities occurred prior to any measure being placed on the ballot and, therefore, no “campaign” for or against a measure had yet begun. The FPPC also advised that the City could send the educational materials based on the survey data either before or after a measure is placed on the ballot, as long as they were not expressly advocating for or against a clearly identified measure or unambiguously urging a particular election result. The FPPC further advised the City to examine the entirety of the materials to determine whether any particular communication may have violated this rule.
Importantly  the FPPC determined that, even if a public opinion survey is conducted and its results mailed to voters before a measure is placed on the ballot, if that survey information is later used to conduct campaign activity after a measure is placed on the ballot, the costs of the survey and of mailing the results to voters could nonetheless be deemed reportable campaign expenditures by the agency. To avoid this possibility, public agencies should ensure that their communications with voters after a measure is placed on the ballot are impartial, educational and informational so as not to constitute publicly funded campaign activity. Several other California laws establish similar restrictions on publicly funded advocacy for or against a measure. (Government Code sections 8314 & 54964 and California Supreme Court decisions Stanson v. Mott (1976) and Vargas v. Salinas (2009) )  
To summarize, the FPPC advises that, if a public agency uses public opinion survey data to conduct campaign-related activity, then the cost of conducting the survey — as well as the cost of making the communication — would be reportable expenditures at the time the communication is distributed and the public agency may have to register as a campaign committee. However, as noted above,  once a measure is on the ballot, publicly funded materials prepared or sent by the public agency must be impartial, educational and informational to meet the legal standards of Stanson and Vargas.
For more information regarding reportable expenditures under the Political Reform Act, please contact one of the attorney authors of this Legal Alert listed at right in the Municipal Law practice group, or your BB&K attorney.
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Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communique.

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