Election Spending and Local Government

Many local governments have determined within the past few weeks to send a ballot issue or question to their voters in the November 2016 election.  This act of setting the ballot language for the issue or question triggers the application of the Colorado Fair Campaign Practices Act (“FCPA”) (§ 1-45-117, C.R.S.)  For the local governments, this means that they are expressly prohibited from expending public funds to support/oppose any candidate for public office and any ballot issue before the voters.  This include a prohibition on contributions of public funds and contributions of “in kind” public services.

However, the FCPA does permit the expenditure of public funds/resources and the use of public employees’ time/resources only for the printing of a factual balanced and fair summary which includes arguments both for and against a proposal on any issue of official concern before an electorate.  The summary cannot urge a vote in a particular manner (“VOTE YES”).  It should be noted that unless the matter is referred to your voters by your board, it is not of “official concern” and therefore funds could not be used to prepare arguments for or against a statewide ballot issues.  Of further note is that this is in addition to the TABOR comments which are received from the public in support or opposition to a tax measure.

The FCPA also permits the incidental and necessary expenditure/use of resources required to assist the governing board to pass a resolution taking a position of advocacy on any issue before the electorate, regardless if it is “of official concern (i.e., can pass a resolution on a statewide issue).” This would include staff time necessary to develop factual data/analysis on the impacts of the ballot issue for the board to use in making its decision.  It further permits incidental and necessary expenditures/use of resources required by elected officials (or others in policy making positions) to respond (letters, phone calls, etc. but not to exceed $50 total per person), and to make themselves available to press/public to respond to questions about any such issue or to express an opinion.

The FCPA does not apply to elected officials and public employees acting in their personal capacities.  Thus, elected officials and public employees may expend personal funds, making personal contributions in kind, or using personal time to urge electors to vote in favor or against any issue.

If your local governmental entity needs assistance with election matters, please contact Adele Reester or any of our other attorneys in the Government Practice Group.