Michigan Election Law Blog

Election Guidelines for Public Bodies in Compliance with MCFA

Each election year provides public bodies, such as townships, school districts, and libraries, an opportunity to seek voter approval for extra-voted on millages and bond proposals. Once the decision is made to put a millage or bond proposal on the ballot, public bodies and their officials must walk a fine line between informing residents of the need for and importance of new funds and advocating for a certain position. The Michigan Campaign Finance Act (MCFA) focuses on preventing public bodies and their employees from using taxpayer dollars to place their thumb on the scale of one view in any election or campaign. This includes any primary, general, special, or millage election held in this state.

Section 57 of the Michigan Campaign Finance Act (“Section 57”) specifically states:

Sec. 57. (1) A public body or an individual acting for a public body shall not use or authorize the use of funds, personnel, office space, computer hardware or software, property, stationery, postage, vehicles, equipment, supplies, or other public resources to make a contribution or expenditure or provide volunteer personal services that are excluded from the definition of contribution under section 4(3)(a). This subsection does not apply to any of the following:

1. The expression of views by an elected or appointed public official who has policy making responsibilities.
2. The production or dissemination of factual information concerning issues relevant to the function of the public body.
3. The production or dissemination of debates, interviews, commentary, or information by a broadcasting station, newspaper, magazine, or other periodical or publication in the regular course of broadcasting or publication.
4. The use of a public facility owned or leased by, or on behalf of, a public body if any candidate or committee has an equal opportunity to use the public facility.
5. The use of a public facility owned or leased by, or on behalf of, a public body if that facility is primarily used as a family dwelling and is not used to conduct a fund-raising event.
6. An elected or appointed public official or an employee of a public body who, when not acting for a public body but is on his or her own personal time, is expressing his or her own personal views, is expending his or her own personal funds, or is providing his or her own personal volunteer services.
7. A person who knowingly violates this section is guilty of a misdemeanor punishable, if the person is an individual, by a fine of not more than $1,000.00 or imprisonment for not more than 1 year, or both, or if the person is not an individual, by 1 of the following, whichever is greater:
   1. A fine of not more than $20,000.00.
   2. A fine equal to the amount of the improper contribution or expenditure.

MCL 169.257.

Individuals acting on behalf of the Public Body

Section 57 applies to individuals acting on behalf of a public body in the same way it applies to the public body itself. As an initial rule, Section 57 allows for any public employee to express their own personal views on a ballot question when they are:

1. not acting for a public body;
2. on their own personal time;
3. expending their own personal funds; or
4. providing their own personal volunteer services.

Section 57 differentiates between public officials and other employees.

First, any elected or appointed public official who has “policy making authority,” such as a supervisor or trustee, may express his or her views on the ballot question at any time and in any context, public or private. However, he or she may not use the public body’s stationery, phones, computers or other public materials to disseminate his or her personal opinions or to support a particular ballot question.

Second, public body employees that do not have “policy making authority” are prohibited from expressing views on behalf of the public body when “on the clock” or when working on behalf of the public body. Similarly, these employees may not use any of the public body’s materials or resources to promote the election.

What a Public Body Can Do

Sharing Factual Information

Sharing “factual information” concerning issues relevant to the function of the public body is explicitly allowed by Section 57. Factual information does not include words of express advocacy and should be backed by objective evidence. What counts as “factual information” is a difficult determination to make in many instances and should be made in consultation with an attorney.

For example, even a statement such as “the millage will allow us to provide better health services” is generally prohibited because it is viewed more as a promotional message than a factual statement. Further, the public body may not post signs in its facilities or produce information with public funds that encourages citizens to “vote for” or “vote against” the ballot question. Typically, materials public bodies can provide are limited to the precise language of a millage, or other similar ballot initiative, and basic facts regarding that language.

Allow Equal Use of a Publicly Owned Facility or Public Information

Section 57 mandates equal access to public facilities and public information. If a public body allows one side of an issue or one political campaign to use a public space, that public body must allow equal use of that space to all sides and all views. Similarly, if a public body allows one side of an issue access to public information the public body must allow that exact same access to the other side or view.

For example, the public body may allow a “Vote Yes on the Millage” committee to use its facilities; provided that, the public body would also allow the “Vote No on the Millage” committee to use the facility in the same manner. Another example would be a public body’s community bulletin board or other display. The public body can allow a “Vote Yes” brochure to be posted, but only if it would allow equal access to the “Vote No” campaign.

What a Public Body Cannot Do

Promotion of certain campaigns

Public bodies are prohibited by Section 57 from promoting any campaign, including a millage campaign. As a result a public body, for instance, cannot purchase or create any lawn signs, brochures, or buttons telling the public to “vote yes” or “vote for the Fire Department Millage” with public funds.

Further, public bodies should be diligent and careful in their spending as public funds are not limited to tax revenue. Even “gifts” or other “donations” made to the public body are still public funds and may not be used for the promotion of any sort of campaign.

What a Public Body Should Do

We recommend that any public body seek legal review of any proposed action that is questionable. The penalties for a violation of Section 57 can be severe and mistakes are easy to make.

If you have any questions related to this communication or other election law issues, please contact your Foster Swift attorney or a member of Foster Swift’s election & campaign finance law team:

• Anne M. Seurynck | 616.726.2240 | aseurynck@fosterswift.com
• Laura J. Genovich | 616.726.2238 | lgenovich@fosterswift.com

Categories: Campaign Finance (MCFA), Compliance