The Arizona Attorney General’s Office has advised Sheila Polk, Yavapai County Attorney, and Bill Montgomery, Maricopa County Attorney, that Arizona’s public resources laws “should not be employed to improperly silence public officials.”
The answer came in response to a question from the duo as to whether Arizona statute restrictions on the use of public resourcss “for the purpose of influencing the outcomes of elections” that arise specifically to a ballot measure, and what conduct or communications would be prohibited.
Polk and Montgomery have been accused by political opponents of using election laws to intimidate and harass candidates in the past, while others have used the law to silence office holders on bonding and other ballot measures.
In May 2015, the Attorney General’s office withdrew the legal opinion that allowed Arizona officials to use public money to take a position on issues that will appear on the ballot. At the time, the Attorney General ruled that using public funds to “educate” people on the issue ahead of the vote was legal.
State law says, “A county shall not spend or use its resources, including the use or expenditure of monies… for the purpose of influencing the outcomes of elections.”
That opinion concluded: “To the extent you use public resources to communicate, your efforts may lawfully continue … throughout the election, so long as they do not unambiguously urge the electorate to cast a vote for or against the measure.”
The Attorney General withdrew the opinion on the basis that “the previously issued opinion may have provided an opportunity for potential government abuse.” However, the Attorney General’s office issued a statement asserting that the “original opinion offered by this office was intended to preserve the First Amendment right of elected officials who educate the public on ballot measures.”
This week, the Attorney General’s office determined that the prohibitions in Section 11-410 on the use of public resources “for the purpose of influencing the outcomes of elections” begin when a serial number has been assigned to the petitions for a ballot initiative or referendum.
The Attorney General determined that a two part test must be used when assessing whether a conduct or communications are prohibited. First, it must be determined if there was a use of public resources, if so, were the public resources used “for the purpose of influencing the outcomes of elections?” The opinion reads, “As a threshold matter, the statutory prohibition does not become operative unless there is a use of public resources. In other words, there is no need to analyze the conduct or communication if there is no use of public resources because Section 11-410 does not apply.”
According to the opinion, “In 2013, the Arizona Legislature substantially amended the prohibitions against the use of public resources to affect elections…. Among the broad changes made, the Legislature provided a statutory definition of “influencing the outcomes of elections.” The Legislature defined influencing the outcomes of elections as supporting or opposing a candidate for nomination or election to public office or the recall of a public officer or supporting or opposing a ballot measure, question or proposition, including any bond, budget or override election and supporting or opposing the circulation of a petition for the recall of a public officer or a petition for a ballot measure, question or proposition in any manner that is not impartial or neutral.”
The Arizona Attorney General’s opinion reads in part:
The use of either an elected official’s title or other incidental uses of the attributes of office also is not a use of public resources for purposes of the statutory prohibition. The statutory prohibitions should be interpreted and applied to implement the Legislature’s legitimate purpose of deterring the misuse of public funds, but they should not be employed to improperly silence public officials from expressing views on important matters of public policy.
Although an elected official’s title has some inherent value, it does not constitute a use of public resources under the statute when the elected official exercises his First Amendment rights to speak about elections. Thus, the use of a public official’s name and title on a mailing that is not paid for with public resources would not constitute a use of public resources because the Legislature’s legitimate regard for the First Amendment outweighs whatever minimal value that the use of an official’s title may have. See Atty. Gen. Op. I07-008.
Similarly, the presence of a regular security detail paid for by an elected official’s office by itself does not constitute the use of public resources for purposes of the statutory prohibition because the security detail must accompany the elected official regardless of whether the elected official is communicating about a ballot measure. See, e.g., Romer, 750 F. Supp. at 1045 (The detail is generally considered an extension of the public official’s political person and is not separable from the person in office; “There is a difference between the conduct of public officials in speaking out on controversial political issues and their use of governmental power to affect the election.”).[5]
Just last year, Montgomery came under scrutiny when he boasted about legal questions he was researching on behalf of his political ally Doug Ducey. According to Seeingredaz.com, “Montgomery used his bi-weekly press conference to expound on the advice he has been providing Ducey. In response, Ducey issued this June 8, press release, acknowledging Montgomery was supplying him and his gubernatorial campaign with legal advice. This letter seeking legal advice was written to Montgomery the same day, on Ducey’s campaign letterhead. Experts on both sides of the political aisle question the ethics of such political involvement since the statutory scope of Montgomery’s duties include but one client: Maricopa County.”