Promoting or informing? Elections spotlight fine line

Sharna Johnson

In November, Curry County officials continually played a video in the courthouse lobby that critics said promoted passage of a jail bond election.

Late last month, someone hung a banner from the city-owned Hotel Clovis that read “SAVE ME VOTE YES,” urging voters approve an affordable housing ordinance.

In both cases, government officials said they did nothing wrong. The video taxpayers funded was “informational,” not promotional, county officials said. City officials said the hotel sign was placed by unidentified members of a private citizens group on property that had been leased by a potential developer.

State officials say there are few laws that govern local public officials’ involvement in promoting issues that go before voters. Opinions on the topic, however, are plentiful.

“I don’t think public money ought to be spent to promote controversial ballot issues. If you’re going to give one side, it seems to me you should present the other side (too),” said Portales Attorney Eric Dixon, who represented government critics in the recent city and county elections. The jail bond and housing ordinance were both rejected by voters.

“Government shouldn’t be involved in promoting one side or the other.”

Dixon and his clients — voters J.W. Graham and Al Lewis — took the county to court over the video. They secured an agreement that county officials would “not allow or place video, brochures, posters or allow its employees or agents to campaign in the courthouse during early voting,” court records show.

No legal action was brought against the city, though Dixon — representing Kim Runyan, a member of the High Plains Patriots, who say they oppose growing government — wrote letters threatening litigation, alleging the sign violated state statutes.

Clovis City Manager Joe Thomas said he supported the proposed Affordable Housing Ordinance as well as his employees’ rights to sign petitions or voice opinions, which he said some did on both sides. If he had it to do over again, Thomas said he would not have allowed his name to be included in a newspaper advertisement listing supporters of the AH ordinance.

“My personal philosophy is leaning toward ultra cautious,” he said.

“I feel like I’m obligated to keep the city out of as much controversy as possible.”

Still, Thomas said he believes city employees are entitled to have and voice their opinions on city issues, a right he said he doesn’t want to take from them.

“My big concern would come down to company time and if city equipment was used,” he said.

“I can’t dictate what an employee thinks or feels.”

Thomas said to his knowledge no city employees promoted the ordinance on the clock or took part in the hanging of the sign from the hotel.

While there are laws governing a state or federal employee’s conduct related to campaign issues, city and county employees are governed by their respective codes of conduct, said Thomas Dow, general counsel for the secretary of state.

When it comes to holding presentations and providing information, there is also a need for some latitude, Dow said.

“The city has to put issues to the voters and the voters need information so there needs to be some level of appropriate activity that the city can engage in and the difficulty is in saying what that is,” he said.

“I think city employees need to follow their personnel rules and a local code of conduct.”

Thomas said city personnel code prohibits employees from engaging in any employment activity or enterprise determined by the city manager to be inconsistent, incompatible or in conflict with the employees’ duties or responsibilities.

During the pre-election period, he said he cautioned employees repeatedly about engaging in campaign related emails, communications and activities on the clock that would present conflicts of interest.

“I would hope that it didn’t occur during work hours or business hours,” he said.

Dow said informational materials, including brochures, are allowed under the law, but promotional content produced by public entities could result in civil or criminal court action.

“That’s a difficult, difficult matter and it’s fact specific and you have to look at the specific facts and decide what’s reasonable,” Dow said. “It’s got to be hard for a government entity to get information out so people can make an informed decision without crossing electoral lines.”