A Guide for Public Hospital Districts

LOCAL ELECTIONS:

Attorney

Presented by

Joe LevanMunicipal

Research and Services Center

of Washington

July 2012

Laird HarrisFounder

and

Association of Washington

Public Health Districts

Harris & Smith Public Affairs

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WELCOME TO THE WEBCAST

BEN LINDEKUGELAWPHD Director of Member

ServicesBenL@awphd.org(206) 216-2528

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• During the presentation, one-way phone connection (we cannot hear you)

• To submit a question or comment

– During the presentation, click the “type here to chat” button on the right of your screen; type your message and click “send”

• A copy of the presentation slides will be available on the AWPHD website tomorrow: http://www.awphd.org/Publications/resources_web.aspx

Quick Technical Notes

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• Harris & Smith Public Affairs provides public affairs and strategic communication consulting services to clients ranging from Fortune 500 companies to small, local non-profit agencies.

• Harris & Smith helps clients understand how communication initiatives and public affairs activities can help achieve organizational goals – and their limitations and risks.

FounderLAIRD

HARRIS

laird@harrisandsmith.com

(206) 343-4119

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AttorneyJOE

LEVANMunicipal Research & Services Center of Washington

jlevan@mrsc.org

(206) 625-1300

• MRSC provides legal and policy assistance to local governments, including public hospital districts

• Call on Joe and MRSC consultants with questions related to governance laws and for assistance with sample policies and other research

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Introduction

Phase I: Needs Assessments

Phase II: Decision For Levy

Phase III: The Election

Additional Resources

OVERVIEW1

2

3

4

5

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Introduction1

What we will - and won’t - focus on today

Why this topic matters

How planning ahead is a key to election success

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• Sometimes, hospital districts must seek voter and community support

Focus of PresentationIn

trodu

ctio

n

1.Bond issues

to build a facility or purchase

equipment

2.Property tax

levies

3.Votes related

to district boundaries

Our focus today

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• As a hospital district commissioner or CEO, what are key considerations in determining whether and how to pursue a ballot proposition requiring voter approval?

• Steps necessary to assess needs for seeking voter approval to ensure success

• Key legal principles and guidelines

• Recommendations for preparing for a ballot proposition and activities during an election campaign.

Focus of PresentationIn

trodu

ctio

n

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• Our focus here is on need-to-know information related to:

1. Is a ballot proposition for a bond measure or tax levy needed?

2. If so, what policy concerns must be addressed?

3. What are some key legal issues related to supporting ballot measures?

• We will not delve into the minutia of tax levies and bond issues - we’ll leave those topics for another day

Less is MoreIn

trodu

ctio

n

[Joe]

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• Our discussion here is about activities related to ballot propositions

• The rules related to ballot propositions are similar to but not the same as the rules that apply to election campaigns for individual candidates

• Also, the rules that apply to lobbying are different than what is at issue here

Know the DifferenceIn

trodu

ctio

n

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• Hospital districts face demands and needs

• Key issues:

(1) How to assess those needs, and(2) Once the needs are identified, how best to

meet them to best serve your community.

Why does this Matter?In

trodu

ctio

n

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• Tax issues are difficult

• Renewals of levies are easier to pass

• New levies are new taxes and are more difficult to pass

Election RealitiesIn

trodu

ctio

n

20 of 23 school levies in King

and Snohomish Counties passed

in February 2010.

The three that failed were all bond levies.

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• Public needs to understand and accept need

• The solution must fit the need

• More is not better

Solution Must Fit the NeedIn

trodu

ctio

n

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• Success in achieving voter approval requires careful planning before and during elections

• State law generally prohibits use of public facilities and resources to support or oppose a ballot proposition, however …

• There are a wide variety of legally permissible activities public officials and public entities can engage in related to ballot propositions

Plan, Educate, ExecuteIn

trodu

ctio

n

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• Plans needed for THREE phases Needs analysis and assessment Preparation for Board action Activities during campaign

Plan AheadIn

trodu

ctio

n

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Phase I: Needs Assessment

What are the benefits of needs assessment?

What does needs assessment include?

What roles can Commissioners and staff legally play in gathering information and garnering support prior to elections?

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• Needs analysis and assessment Generally not considered a campaign

activity, but can implicate campaign related restrictions

An opportunity to involve and educate the public

A chance to identify leadership support that may be activated for the campaign

Opportunity to gauge public reactions

Educate, Involve, LearnPhase

I:

Needs

Ass

ess

ment

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• Community advisory committees can increase understanding of need and give valuable feedback

• Must consider information about need and alternative solutions

• Opportunity to involve community leaders in a meaningful way

Community Advisory Committees

Phase

I:

Needs

Ass

ess

ment

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• Presentations to civic organizations needs and alternatives

• Leadership events at hospital

• Formal needs assessment questionnaire

• Website postings with opportunity for comment

• News stories

Public InformationPhase

I:

Needs

Ass

ess

ment

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• Community leadership can be identified

• Feedback can help with key decisions about possible levy campaign

• Opportunity to communicate when not in election mode

Community Input BenefitsPhase

I:

Needs

Ass

ess

ment

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Q:

As a public hospital district educates and involves the public during the needs assessment phase, are there legal issues related to these activities that CEOs and Commissioners need to be aware of ?P

hase

I:

Needs

Ass

ess

ment

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A:Yes: there are important legal restrictions that limit the use of public resources for activities that support or oppose ballot propositions.

Phase

I:

Needs

Ass

ess

ment

[Joe]

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• Our state’s Public Disclosure Commission (PDC) has jurisdiction over local election and campaign matters

• The PDC assists local governments in understanding the statutory provisions and implementing regulations that govern activities related to ballot propositions

• The PDC also investigates complaints regarding election and campaign matters

• As a result, the PDC is an important resource in knowing what issues have tripped up other local governments

• If in doubt, contact the PDC – before you act

Working with the PDCPhase

I:

Needs

Ass

ess

ment

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• The key RCW and WAC provisions related to election campaigns are provided for you in the “Additional Resources” section at the end of this webcast.

Key Statutory Provisions and Administrative Sources

Phase

I:

Needs

Ass

ess

ment

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• As a matter of fairness and to prevent misuse of public resources

• To prevent local government elected officials and staff from using public resources –

– For their private benefit (e.g., promoting their own campaign)

– To advance their own cause using taxpayer resources (e.g., supporting a ballot proposition the public may not support and using public resources to do so)

Why the Restrictions?Phase

I:

Needs

Ass

ess

ment

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• In enacting the restrictions, the legislature also stated its intent to affirm and clarify our state’s longstanding policy of promoting informed public discussion and understanding of ballot propositions

• How?

– By allowing elected boards, councils, and commissions of special purpose districts to adopt resolutions supporting or opposing ballot propositions

– And by, more generally, crafting the law to respect free speech rights in the political process

Free Speech – Informed Citizenry

Phase

I:

Needs

Ass

ess

ment

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• An individual commissioner or official can express his or her own personal views concerning, supporting, or opposing any ballot proposition or candidate if …

• Such expression does not involve use of the facilities of a public office or agency

What You Can Do As An Individual

Phase

I:

Needs

Ass

ess

ment

Keep in MindA commissioner or employee on their own time and not

using district facilities or resources is not limited by chapter 42.17A RCW in what they can do – they can

support or oppose a ballot proposition, give money for the cause, and/or be involved in campaigns

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• As a public agency, a public hospital district can:(a) Make its facilities available on a nondiscriminatory, equal access basis for political uses, and/or(b) Make an objective and fair presentation of facts relevant to a ballot proposition, if …

• Such action is part of the normal and regular conduct of the district

What You Can DoPhase

I:

Needs

Ass

ess

ment

“Facilities” in this context include: local government agency equipment, buildings, supplies, employee work time, and agency publications

“Normal and Regular Conduct” includes conduct which is:

1) Lawful, i.e., specifically authorized, either expressly or by necessary implication, in an appropriate enactment (such as a policy adopted by the board of commissioners), and

2) Usual, i.e., not effected or authorized in or by some extraordinary means or manner

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• The PDC indicates it will review the timing, tone, and tenor of activities in relation to ballot measure elections

• Recognizing that across-the-board rules applicable to all situations are difficult to establish

Normal and Regular Conduct, Such As …

Phase

I:

Needs

Ass

ess

ment

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• Use public facilities to support or oppose a ballot proposition or candidate

• Subject its employees to coercion, pressure, or undue influence to participate in political activity or to take a particular position

– District officials and employees should make it clear that any participation is personal rather than officially sponsored

• If the purpose is to influence the outcome of an election, the district cannot spend district funds for the preparation and distribution of information about the election

What the District Cannot Do

Phase

I:

Needs

Ass

ess

ment

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Q:

May a public hospital district conduct community research or a survey related to a potential bond measure or property tax levy?

Phase

I:

Needs

Ass

ess

ment

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A: It depends on how the community research and/or survey is conducted.

Phase

I:

Needs

Ass

ess

ment

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The district can:

• Conduct surveys, including demographic questions, to determine the community’s priorities, public perception of performance, and/or to inform the community about agency programs and policies

• Conduct community research (including use of questionnaires, surveys, workshops, focus groups, and forums) to determine the community’s priorities for both programs and/or facilities and their associated total costs and projected dollars per thousand assessment

Needs Assessment – Community Research and

Surveys

Phase

I:

Needs

Ass

ess

ment

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• Surveys and/or other community research can be conducted before or after the governing body has approved a resolution to place a ballot measure on the ballot

• However, research conducted after the adoption of the resolution may be subject to greater scrutiny by the PDC

• Survey Results:

– Agencies may publish survey results if it is consistent with the normal and regular conduct of the agency

Timing of Community Research and Surveys

Phase

I:

Needs

Ass

ess

ment

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The district cannot:

– Conduct surveys to determine what taxation level the public would support

– Conduct surveys designed to shore up support or opposition for a ballot measure

– Target registered voters or other specific subgroups of the jurisdiction in conducting election-related surveys

– Use survey results in a manner designed to support or oppose a candidate or ballot measure

Polls and Survey Restrictions

Phase

I:

Needs

Ass

ess

ment

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• We encourage your district to submit your proposed poll or survey to the PDC for review

• Don’t use surveys to test possible ballot language

• Don’t ask for public support for a ballot issue – even where none has been created

• Don’t send out additional mailers or newsletters in anticipation of an election, unless you can demonstrate to the PDC that doing so is part of the your district’s normal and regular conduct

Additional Thoughts Re: Assessment Phase

Phase

I:

Needs

Ass

ess

ment

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Phase II: Decision For Levy

What are key decision points related to levy?

How can our Board prepare to take action?

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• Resolution to place on ballot Will fix levy amount Determine election date Set ballot language Done in open public meeting Kicks off formal campaign period

Decisions Related To LevyPhase

I I:

Deci

sion

for

Levy

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• Board work sessions to consider alternatives

• Consider possible conflicts with other local levy campaigns

• Selective consultations with community leaders on provisions

Preparation For Board Action

Phase

I I:

Deci

sion

for

Levy

Legal NoteThe district can conduct community research (including focus groups) to determine the community’s priorities for both programs and/or facilities, but cannot do so to

shore up support for a ballot measure

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Phase III: The Election

What are appropriate roles for Commissioners and staff in an election?

What are successful strategies for getting information out to voters?

What are the legal guidelines for ways to present that information?

How best to work with a campaign committee?

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• Hospital district commissioners, as elected officials, are free to campaign in support (or opposition) of a ballot measure as long as they:

– Don’t make use of district facilities, time, or resources;

– Don’t either pressure or condone district employees’ use of district facilities, time, or resources

• Staff are free to campaign on their own time and with their own resources

• Commissioners and staff may participate on support committees (e.g., “Yes on Hospitals” committee)

• May provide objective and fair information about a ballot measure

Election ConsiderationsPhase

III:

The E

lect

ion

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• District may publish and distribute one mailer that describes the needs to be met by the levy or bond measure

• Information may be posted on the district’s website

• Commissioners may adopt a support resolution in a properly noticed open public meeting that makes the case for the levy or measure

– Opponents of the levy or measure must be given an equal opportunity to express their views

• Presentations may be made at civic clubs and other local gatherings by commissioners, officials, and staff

More To DoPhase

III:

The E

lect

ion

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• The PDC indicates that generally one jurisdiction-wide objective and fair presentation of the facts per ballot measure is appropriate

• But note … if an agency has also customarily distributed this information through means other than a jurisdiction-wide mailing (e.g. regularly scheduled newsletter, website, bilingual documents, or other format), the PDC generally allows such conduct so long as the activity has been normal and regular for that agency

Election Related Publications

Phase

III:

The E

lect

ion

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• How can the district show to the PDC that this conduct is normal and regular for that district?

– By demonstrating that for other major policy issues facing the district, the district has customarily communicated with its residents in a manner similar to that undertaken for the ballot measure

Distribution of Fair and Objective Facts

Phase

III:

The E

lect

ion

Key PointThe PDC emphasizes that in no case will it view a marketing or sales effort related to a campaign or

election as normal and regular conduct

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PDC staff recommend a three step process for preparing the district’s fact sheet:

Just the Facts …Phase

III:

The E

lect

ion

1.Determine the set of objective facts

related to the ballot proposition

*Recommendation: Submit your proposed fact sheet to PDC staff for review.

2.Determine what the district usually does

in distributing informational

materials as part of its normal and

regular conduct

3.Make sure the material is not

promotional – that it does not support or oppose a ballot

proposition

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• Develop standard presentations to be used in public presentations Review against PDC guidelines PowerPoint or video can keep presenter on

message Commissioners should not ask staff to

prepare advocacy presentations Recruit non-employees to make

presentations• Review PDC Interpretation 04-02 (the

Local Guidelines) – lists a variety of permissible activities

Public CommunicationsPhase

III:

The E

lect

ion

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• Supervisors may share objective and fair communications with staff

• Supervisors may not pressure their subordinates to support a ballot issue

• Supervisors and staff may display bumper stickers on cars that are parked in employee lots

• Supervisors and staff may wear campaign buttons if the district’s policy generally permits employees to wear political buttons

• PDC Interpretation 04-02 (the Local Guidelines) lists a variety of permissible activities

Internal CommunicationsPhase

III:

The E

lect

ion

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• Commissioners, managers, and staff may participate on committee on their own time using their own resources

• Committee raises money for advertisements, yard signs, brochures, etc.

• Committee is responsible for content of campaign materials

• May not coordinate messaging or other activities between the hospital district’s official activities and the ballot proposition campaign

Campaign CommitteePhase

III:

The E

lect

ion

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• Understand what constitutes using district resources to support or oppose a ballot proposition

• Remember the reason for the rules

– To prevent misuse of taxpayer funded resources

– To maintain the public trust• There are many ways to help without

coming anywhere near breaking the rules

• Ask for guidance

Common SensePhase

III:

The E

lect

ion

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Additional Resources

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• MRSC Website

– Municipal Elections– Levy Lid Lift

• Public Disclosure Commission (PDC)

Additional ResourcesA

ddit

ional R

eso

urc

es

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• Chapter 42.17 RCW was recodified to chapter 42.17A RCW – effective January 1, 2012

• Key provision regarding the use of public office or agency facilities in campaigns – RCW 42.17.130 – was recodified to RCW 42.17A.555

Key Statutory Provisions Related to Election

Campaigns

Ad

dit

ional R

eso

urc

es

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• Title 390 WAC (governing the PDC)

• Particularly chapter 390-05 WAC

• Even more specifically, WAC 390-05-271 (general applications of RCW 42.17A.555) and WAC 390-05-273 (definition of normal and regular conduct )

• A very useful resource prepared by and relied on by the PDC is PDC Interpretation 04-02 (revised in 2012) – aka “the Local Guidelines”

Key Administrative SourcesA

ddit

ional R

eso

urc

es

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Contact Info

JOE LEVAN MRSC Attorneyjlevan@mrsc.org(206) 625-1300

BEN LINDEKUGEL AWPHD Director of Member ServicesBenL@awphd.org(206) 216-2528

Ad

dit

ional R

eso

urc

es LAIRD HARRIS

Founder, Harris and Smith Public Affairs laird@harrisandsmith.com(206) 343-4119

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LOCAL ELECTIONS:A Guide for Public Hospital

Districtswww.awphd.orgwww.mrsc.org

www.harrisandsmith.com