A number of Wisconsin school districts are preparing for referendum elections as part of the November 2024 general election. Inasmuch as school districts have significant interest in the outcome of their referendum election, we are regularly asked to weigh in as to what extent school districts, school board members, school district administrators, and school district employees may advocate for a particular referendum outcome.
Use of Public Funds. Wisconsin’s public purpose doctrine holds that local government expenditures be made only for public purposes, as determined by the Legislature, and embodied in statutes. See, Town of Beloit v. Rock County, 259 Wis.2d 37 (2003). Advocacy for political campaigns, including referendums, has specifically been determined to be an inappropriate use of public funds; it violates the public purpose doctrine. In State v. Chvala, 2004 WI App 53, the Wisconsin Court of Appeals determined that “a reasonable person would be aware that using discretionary powers to obtain a dishonest advantage over others by waging a partisan political campaign with state resources violates one’s duty as a public official.”
School districts and school district officials may not use “public funds” or resources to advocate for a particular referendum result. Doing so creates a risk of criminal charges under Wis. Stat. § 946.12 (Misconduct in Public Office). The definition of “public funds” in such partisan campaign contexts is construed broadly, and may include, but is not limited to:
- Using school district materials such as paper, printers, and other office supplies to create flyers which advocate in favor of a referendum outcome.
- Using school district employees’ work time to engage in referendum advocacy.
- Using the school district’s mileage stipend to run errands or school district funds to provide reimbursement for other expenses on behalf of a referendum advocacy group.
- Providing one referendum advocacy group with preferential access to school facilities.
School districts may, however, use public funds for informational purposes to inform the electorate about the reason(s) for, and anticipated impact(s) of, passing or rejecting a referendum. Communicating illustrative facts, such as the amount of money sought through the referendum, the date of the referendum election, the purpose of the referendum election, and the potential consequences if the referendum fails, are widely understood as an appropriate use of public funds to inform the electorate, rather than using school district funds for a partisan purpose.
Whether or not school districts or school district officials are “advocating” for a particular referendum result is a relatively simple analysis – Would a reasonable person be able to tell the preference for the outcome of the referendum based on the communication?
The Wisconsin Attorney General has weighed in, stating words and phrases such as “vote for”, “elect”, “support”, “cast your ballot for”, “vote against”, “defeat”, and “reject” are all phrases that clearly support a finding of advocacy. 68 Op. Att’y Gen. 167 (1979). However, encouraging voting in general (e.g., “go vote!”) is not partisan advocacy, and is therefore a permissible use of school district funds.
In short, to avoid legal wrongdoing, all school districts and school district officials (school board members and employees (including administrators)) should refrain from using public funds and resources – and prevent other persons from using such funds or resources – to advocate for a particular referendum outcome.
Verbal or Written Expressions of Advocacy. School district officials and employees do not lose their First Amendment right to freedom of speech and expression because of their service to the school district. The right encompasses speech and expression concerning political campaigns, including school district referendums. However, the scope of one’s ability to advocate for a particular referendum result is more or less narrow based on the individual’s role in the school district:
- School Board Members. It is generally ascertainable to define when a school board member is acting within the scope of their official duties and when the school board member is acting in their capacity as a concerned community member. School board members may not engage in advocacy while acting within the scope of their official duties. Therefore, school board members should consider:
- Am I engaging in advocacy during a public meeting? (Consider walking quorum situations as well).
- Am I engaging in advocacy activities while the public could reasonably perceive me as acting within the scope of my official capacity?
- Is there a reasonable possibility that my statements could be perceived as speaking for or on behalf of the school district or school board?
- Am I engaging in advocacy while present at a school district building or while using school district resources?
- Am I using District-owned technology (e.g., electronic-mail) to engage in advocacy activities?
- Is there a reasonable possibility that I will be perceived as using District funds/resources to engage in advocacy?
Disclaimers. Often, school board members participate in interviews or print publications (e.g., op-eds) regarding an anticipated referendum. In these situations, or when posting personal views on social media, it is vital for school board members to disclaim that they are expressing their opinion only as a concerned elector rather than as a school board member. This helps defeat potential audience presumptions that such an opinion is the opinion of the school district and/or school board or that the school board member is advocating pursuant to their authority as a school board member. When in doubt, use a disclaimer. However, it is important to understand that a disclaimer will not be sufficient in all situations (e.g., during a properly posted open-session school board meeting).
- School District Employees. Generally, it’s easier to ascertain the line between advocacy under the First Amendment and misconduct for school district employees with set contract hours and/or those paid on an hourly wage basis. So long as the employee advocates outside their contract hours/duties and does not use school district resources to conduct such advocacy, the employee is arguably operating under the First Amendment. Before engaging in referendum advocacy, school district employees should consider:
- Am I engaging in advocacy while performing responsibilities arising out of my employment?
- Am I engaging in advocacy while present at a school district owned facility or using school district-funded resources?
- Am I using school district-owned technology (e.g., electronic-mail) to engage in advocacy?
- Is there a reasonable possibility that I am perceived as using school district funds/resources to engage in advocacy?
- School District Administrator/District Administrator Assistants. The school district administrator (and their assistants) is unique insomuch that they have year-round, salary-based employment and often flexible work days/hours. School district administrators (and their assistants) frequently receive stipends for travel, mileage, cell phone use, etc. Additionally, the school district administrator (and their assistants) serves as an agent of the school district, making it far more difficult to separate the school district administrator (and their assistants) from their official duties. Therefore, although it is not impossible to separate the school district administrator’s (and their assistant’s) advocacy from their official duties, it is highly impractical. In the end, the school district administrator (and their assistants) should refrain from advocating or endorsing a particular referendum outcome.
Use of School District Buildings/Property. Any referendum advocacy group must be permitted to use the school district’s buildings/property in the same manner as any other non-affiliated group. Such groups should be directed to the school district’s facility use policies and procedures.
