Several parents have sent me emails after seeing their kids come home with fliers from San Diego Unified about its proposed parcel tax, Proposition J.
The fliers emphasize the extent of school budget cuts so far and warn that deeper cuts are coming. San Diego Unified has spent roughly $4,700 on fliers that it has sent home with schoolchildren and passed out at community meetings held at schools. The question that readers asked me is: Is this legal?
School districts and other public agencies are allowed to provide information about ballot measures that impact them. But they aren’t allowed to campaign for or against a measure with public funds. Opponents of the parcel tax for San Diego Unified schools argue that the fliers are implicitly advocating for the tax.
So what do the fliers say? They include straightforward information about what school programs are on the chopping block, but also state that “every effort has been made to keep cuts away from the classroom,” a subjective statement that school district critics would contest.
In some cases, the fliers give an incomplete picture of what the school district has done to manage its finances. One page says teachers have agreed to furloughs reducing their pay for the next two years. That’s true, but it leaves out the fact that they’ll get salary increases after the furloughs end, which tax opponents have talked up.
The fliers don’t say “Vote Yes on Proposition J,” but the California Supreme Court has ruled that public agencies can overstep the line even if they don’t specifically tell people how to vote.
Roman Porter, executive director of the Fair Political Practices Commission, said that if local governments provide information on ballot measures, they have to present a fair, impartial analysis including both sides. Porter declined to weigh in on the school district fliers.
Lani Lutar, president of the San Diego County Taxpayers Association, which opposes Prop. J, believes the fliers fail to provide both sides of the issue, violating the spirit of the law. Because Lutar isn’t an attorney, she said she couldn’t weigh in on whether the fliers are actually illegal, especially since the law itself is subjective.
“It only presents one side of the picture, which is misleading to the voters,” Lutar said.
School district attorney Mark Bresee said he and another attorney checked over the fliers and that they are factual and fair. It is perfectly legal for the district to provide information about budget cuts and what the tax would do, Bresee said. He cited a court case that found that the city of Salinas hadn’t violated the rules by listing program cuts it would have to make if a ballot measure passed.
“A public agency doesn’t have to pretend that facts don’t exist when they do exist,” Bresee said. “I’d like someone to show me anything that’s not factual and relevant.”
Experts called it a legal issue cloaked in shades of gray. Jessica Levinson, director of political reform for the Center for Governmental Studies in Los Angeles, said that while the fliers didn’t seem to be misleading, they were overwhelmingly positive when it came to the tax and its potential impact.
“It’s a close call,” Levinson said. “There’s nothing there that says, ‘There may be some reasons not to vote for this.’”
She was uncertain, however, on whether that would pose a problem under the law.
Robert Fellmeth, a professor of public interest law at the University of San Diego, said while the fliers omit information that a taxpayer group might think was important, they provided useful, factual information about budget cuts. “I don’t have a problem with this at all,” Fellmeth said.
And Michael Martello, an attorney who worked with the League of Cities as a liaison to the Fair Political Practices Commission, said he didn’t think it was over the line, either.
“Obviously you can tell it’s written on the side of, ‘We need this,’” Martello said. “But it looks like they went to some effort to be as fact-oriented as possible.”
Please contact Emily Alpert directly at emily.alpert@voiceofsandiego.org or 619.550.5665 and follow her on Twitter: twitter.com/emilyschoolsyou.