Did the San Bernardino Unified School District Violate Education Code Section 7054 Regarding Advocacy For Measure N on The November 6, 2012 Ballot?

By Michael Reiter, Attorney at Law

Measure N is the San Bernardino City Unified School District’s bond measure is to sell $250,000,000 (250 million dollars or a quarter billion dollars) in aggregate principal of  bonds with a maturity not to exceed twenty-five years. The ballot statement and resolution do not give the total cost to the bond issue including principal and interest.  The District’s estimate is that it will cost property owners $34 per year for each $100,000 of assessed value to pay the principal and interest on the bonds (which is in addition to any existing bonds).  It was placed on the ballot by the Board of Education on August 7, 2012 by a six to one vote.  The members voting for were Barbara Flores, Mike Gallo, Margaret Hill, Bobbie Perong, Lynda Savage, Judi Penman.  Danny Tillman voted no.  The measure requires a 55 percent “yes” vote to pass per Proposition 39 (2000) and Education Code section 15264.  In connection with Measure N, the San Bernardino Unified School District has sent mass mailings, including this piece:

California Education Code section 7054 reads, as of today:

(a) No school district or community college district funds, services, supplies, or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate, including, but not limited to, any candidate for election to the governing board of the district.
(b) Nothing in this section shall prohibit the use of any of the public resources described in subdivision (a) to provide information to the public about the possible effects of any bond issue or other ballot measure if both of the following conditions are met:
(1) The informational activities are otherwise authorized by the Constitution or laws of this state.
(2) The information provided constitutes a fair and impartial presentation of relevant facts to aid the electorate in reaching an informed judgment regarding the bond issue or ballot measure.
(c) A violation of this section shall be a misdemeanor or felony punishable by imprisonment in a county jail not exceeding one year or by a fine not exceeding one thousand dollars ($1,000), or by both, or imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months, or two or three years.
Therefore, a school district cannot use funds for the purpose of urging the support or defeat of any ballot measure or candidate.  California Education Code section 7054(a).  However, a limitation to California Education Code seciton 7054(a) is that a school district may expend public resources to provide information to the public about the possible effects of any bond issue if two conditions are met.  The informational activities are otherwise allowed by law, and the “information provided constitutes a fair and impartial presentation of relevant facts to aid the electorate in reaching an informed judgment regarding the bond issue or ballot measure.”  California Education Code section 7054(b).  The violation of this section is a wobbler, punishable as a misdemeanor or felony. California Education Code section 7054(b).
In the resolution of August 7, 2012, the San Bernardino Unified School District Board of Directors made this finding:
WHEREAS, the District needs to install lighting, replace and fix fences and update security
alarms to keep students safe during and after school and to protect our schools from gang
members who break into schools, vandalize and steal equipment;  . . .
The front of the mailer states “From the Desk of School District Police Chief Joseph Paulino”
The letter says

Dear Neighbor:

As School District Police Chief, my job is to keep our students and school sites safe.
I also seek to protect our schools from intruders who break into schools, vandalize, steal school equipment and tag walls with graffiti. Unfortunately, many of our schools have outdated security alarms, inadequate fences and limited lighting.
Measure N is on your local ballot.  Among the priorities included in Measure N are the following safety and security upgrades to San Bernardino and Highland schools:
  • Maintain safe, clean clasrooms
  • Repair/replace leaky roofs
  • Remove asbestos and other hazardous materials
  • Repair/replace fire alarms, security and electrical systems
  • Replace old playground equipment with new, safer equipment

Remember to vote on Measure N.

Sincerely,
/s/
Chief Joseph Paulino
San Bernardino School District
Police Department
The Measure does not give an actual project list (meaning, x amount is going to do x at Cajon High School on x date).   However, there is a more generic project list, and this is the relevant section:
School Safety and Energy Efficiency School Projects
Goal and Purpose: The District must protect its schools from gang members who break
into schools, vandalize and steal equipment and tag walls with graffiti. Unless the District
replaces outdated security alarms, inadequate fences and limited safety lighting, it can’t
keep them out. To keep students safe during and after school, projects such as proper
lighting, fences and security alarms are needed:
Student Safety
• Repair and replace security and electrical systems, such as security lighting, fencing,
gates and classroom door locks.
• Upgrade fire alarm systems including fire safety equipment and sprinklers to make
students safe in the event of an emergency.
• Upgrade schools to meet handicap accessibility requirements.
• Remove hazardous materials like asbestos and lead paint from older school sites.
• Increase after-school program space to reduce juvenile violence.
The headline’s question is whether the District’s statement has violated California Education Code section 7055 regarding advocacy for Measure N.  The California Supreme Court decision in Stanson v. Mott (1976) 17 Cal.3d 206 is important to consider in such cases. The Court ruled:
On June 4, 1974, California voters approved a $250 million bond issue to provide funds for the future acquisition of park land and recreational and historical facilities by state and municipal authorities. One day before the election, plaintiff Sam Stanson filed the present taxpayer suit, alleging that defendant William Penn Mott, Jr., director of the California Department of Parks and Recreation (department), had authorized the department to expend more than $5,000 of public funds to promote the passage of the bond issue. Asserting the illegality of such use of public funds, plaintiff sought a judgment that would require Mott personally to repay the funds to the state treasury and any other appropriate relief.

. . .

As we explain, past decisions in both California and our sister states establish that, at least in the absence of clear and explicit legislative authorization, a public agency may not expend public funds to promote a partisan position in an election campaign; in the present case, no legislative provision accorded the Department of Parks and Recreation such authorization. Although the department did possess statutory authority to disseminate ‘information’ to the public relating to the bond election, the department, in fulfilling this informational role, was obligated to provide a fair presentation of the relevant facts. Since plaintiff specifically alleged that public funds were expended for ‘promotional,’ rather then ‘informational,’ purposes, his complaint stated a valid cause of action, and the trial court erred in sustaining defendant’s demurrer. If plaintiff proves the allegations of his complaint at trial, he will be entitled to at least a declaratory judgment that such expenditure of public funds was improper, and, perhaps, to injunctive relief as well.
Whether defendant Mott may be held personally liable for the funds which have already been spent presents a more difficult question. Although early California decisions held public officials strictly liable for any unauthorized expenditure of public funds, even when such expenses were incurred in good faith, subsequent legislation has considerably narrowed the circumstances under which public employees are generally held personally accountable for resultant losses. In accommodating the policy underlying this legislative development with the long-recognized public interest in protecting the public treasury from potential mismanagement or abuse, we conclude that defendant may be held personally liable to repay expended funds only if he failed to exercise due care in authorizing the expenditure of the funds. Stanson v. Mott (1976) 17 Cal.3d 206, 209-210.
What is the difference between promotional and informational? Stanson v. Mott says it’s a fine line, but in the case of Mr. Stanson v. Mr. Mott, left it to the trial court to decide:
Problems may arise, of course, in attempting to distinguish improper ‘campaign’ expenditures from proper ‘informational’ activities. With respect to some activities, the distinction is rather clear; thus, the use of public funds to purchase such items as bumper stickers, posters, advertising ‘floats,’ or television and radio ‘spots’ unquestionably constitutes improper campaign activity (see, e.g., Mines v. Del Valle, supra, 201 Cal. at p. 276, 257 P. 530; Porter v. Tiffany, supra, 502 P.2d at p. 1386), as does the dissemination, at public expense, of campaign literature prepared by private proponents or opponents of a ballot measure. (See 51 Ops.Cal.Atty.Gen. 190, 194 (1968); Stern v. Kramersky, supra, 375 N.Y.S.2d 235.) On the other hand, it is generally accepted that a public agency pursues a proper ‘informational’ role when it simply gives a ‘fair presentation of the facts’ in response to a citizen’s request for information (see Citizens to Protect Pub. Funds v. Board of Education, supra, 98 A.2d 673, 677; Stern v. Kramarsky, supra, 375 N.Y.S.2d 235, 239—240; 51 Ops.Cal.Atty.Gen. 190, 193 (1968)) or, when requested by a public or private organization, it authorizes as agency employee to present the department’s view of a ballot proposal at a meeting of such organization. (See Ed.Code, s 1073;cf. Citizens to Protect Pub. Funds v. Board of Education, supra, 98 A.2d 673, 677.)

      Frequently, however, the line between unauthorized campaign expenditures and authorized informational activities is not so clear. Thus, while past cases indicate that public agencies may generally publish a ‘fair presentation of facts’ relevant to an election matter, in a number of instances publicly financed brochures or newspaper advertisements which have purported to contain only relevant factual information, and which have refrained from exhorting voters to ‘Vote Yes,’ have nevertheless been found to constitute improper campaign literature. (See 35 Ops.Cal.Atty.Gen. 112 (1960); 51 Ops.Cal.Atty.Gen. 190 (1968); cf. 42 Ops.Cal.Atty.Gen. 25, 27 (1964).) In such cases, the determination of the propriety or impropriety of the expenditure depends upon a careful consideration of such factors as the style, tenor and timing of the publication; no hard and fast rule governs every case.  Stanson v. Mott (1976) 17 Cal.3d 206, 221-222.
The question, then, is this presentation “fair and impartial?  The mailer does not say Vote for Measure N, (it says “vote on Mesaure N”).  On the other hand, it says that the Chief wants to keep students and school sites safe, and protect schools from intruders, and that many schools have outdated security alarms, inadequate fences and limited lighting. It then says that Measure N is on the ballot.  It then says that the priorities included in Measure N are the following safety and security upgrades.  Arguably, each of these things are true.  However, someone may argue that in placement of the needs and the solutions to that need together, the San Bernardino Unified School District has gone from a strictly informational piece about Measure N to advocating for voters to vote for Measure N.  Further, the style of the mailer looks like a campaign advocacy piece, showing the picture of the Chief in his uniform, showing stock photos of alarms and a fire pull box, and a drug free, gun free, school zone sign.
A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055
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About Michael Reiter, Attorney at Law
Michael Reiter is a Redlands, California-based lawyer, serving San Bernardino County and Riverside County in Southern California's Inland Empire. Michael Reiter is a lawyer practicing in the following fields of law: Personal Injury Law, Municipal Law, Code Enforcement Law, Small Business Law and Real Estate Law. Michael Reiter practices in all the local courts, including San Bernardino Superior Court, Riverside Superior Court, and the United States District Court for the Central District of California. Michael Reiter was admitted to the California State Bar in 1998. Michael Reiter was Assistant City Attorney for the City of Redlands, a Deputy City Attorney for the City of San Bernardino, and Staff Attorney for Legal Aid Society of San Bernardino. Michael Reiter serves all of San Bernardino and Riverside County, Orange County, and Los Angeles County. Michael Reiter can be reached at (909) 708-6055, or by electronic mail at michael@michaelreiterlaw.com.

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