CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY

DENNIS J. HERRERA
City Attorney

MEMORANDUM
TO: ALL ELECTED OFFICIALS

FROM: DENNIS J. HERRERA

City Attorney

DATE: September 7, 2005

RE: Use of City Resources for Electronic Newsletters, Constituent E-Mails and Blogs

Several elected officials have inquired about the propriety of communicating with
constituents through electronic newsletters, e-mails, and web logs ("blogs"). Specifically, a
number of questions have arisen about the application of rules prohibiting the use of City
resources for political activities to these types of communications. In this memorandum we set
forth general guidelines and provide illustrations applying them. If you have any questions about
whether any electronic newsletter or other information you plan to distribute comports with these
guidelines, please contact the City Attorney's Office.

I. GENERAL PRINCIPLES
City officials may use public resources, including personnel, paper, postage, and
computers, only for authorized City purposes. State and local law specifically prohibit City
officials from using such resources for campaign or other political purposes. See Cal. Penal
Code § 424 (prohibiting theft of government resources); Cal. Govt. Code § 8314 (prohibiting
officials from using public resources for campaign activity); Cal. Govt. Code § 54964
(prohibiting expenditure of any local agency funds to support or oppose the approval or rejection
of a ballot measure, or the election or defeat of a candidate, by the voters); S.F. C&GC Code
§ 3.230 (prohibiting political activity during working hours or on City premises).

In addition, the California Constitution, as construed by the courts, prohibits the

government, including City officers acting in their official capacity, from taking sides in matters
pending before the voters. "A fundamental precept of this nation's democratic electoral process
is that the government may not 'take sides' in election contests or bestow an unfair advantage on
one of several competing factions." Stanson v. Mott, 27 Cal.3d 206, 217 (1970). "A principal
danger feared by our country's founders lay in the possibility that the holders of governmental
authority would use official power improperly to perpetuate themselves, or their allies in office."
Id. (citations omitted). While the government is free to provide information to the voters about
issues that affect them, government officials may not put their thumbs on the scales. Information
provided by the government must be fair, balanced, and impartial. See id.
The California Supreme Court has observed that no bright line distinguishes improper
campaign activities from proper informational activities. While some activities, such as
campaign advertisements or endorsements might clearly fall on one side of the line, often the
appropriate categorization of an activity is less clear. "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." Id. at
222 (footnote omitted).

CITY HALL·1 DR. CARLTON B. GOODLETT PLACE, SUITE 234· SAN FRANCISCO, CALIFORNIA 94102-0917
RECEPTION: (415) 554-4700 · FACSIMILE: (415) 554-4745

k:\press\website\opinion\blog.doc
CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY
Memorandum

TO: ALL ELECTED OFFICIALS

DATE: September 7, 2005
PAGE: 2
RE: Use of City Resources for Electronic Newsletters, Constituent E-Mails and Blogs

A misuse of City resources can subject an official to criminal or civil penalties. See
People v. Battin, 77 Cal. App. 3d 635 (1978). A taxpayer may also seek repayment of public
funds wrongfully expended. See, e.g., Stanson v. Mott, 17 Cal.3d 206 (1976).

II. NEWSLETTERS, BLOGS AND OTHER FORMS OF ELECTRONIC

COMMUNICATION
Elected officials often seek to provide information to their constituents about the elected
official's accomplishments in office, policies and plans for future projects, and ongoing work of
their offices. These communications with constituents have taken a variety of forms, from an
occasional letter mailed to voters' residences, to a printed newsletter distributed on a regular
basis. With new technologies available, these traditional communications now appear in other
forms, such as e-mailed newsletters, postings on list serves, webpages, and blogs. Unlike
traditional newsletters, these new forms of electronic communications are not currently subject
to the state's mass mailing rule, which severely restricts the use of City resources for mailing
newsletters and other communications at public expense where the mailings feature an elected
official.1 But while electronic communications are currently free from mass-mailing restrictions,
they are subject to the general restrictions on use of City resources for political activity.

Thus, an elected official may not use any e-mail, blog, or other form of communication
that uses City resources to influence the voters to support or oppose a candidate or measure.
While there is no bright line rule for determining when a communication is intended to influence
the voters in an election, we can look to the Supreme Court's "style, tenor, and timing" test to
evaluate particular communications. Although the line between proper and improper activity
may be imprecise, City officials should bear in mind that the public as a whole funds the
communication and that government communications serve a different function than private
media or publications funded by campaigns. Striving to provide factual and balanced
information and materials, as opposed to information that reads like campaign literature
supporting or opposing a candidate or measure, should avoid concerns that City resources are
being used to advance or oppose candidates or measures.
• TIMING
The closer in time to an election that information is distributed, the more likely that some
content could be viewed as political activity. For example, an article in a newsletter about a
neighborhood problem might be unremarkable two years before an election, even if a bit strident.
But the same article might take on a more political tone if the newsletter is sent 18 months later
when the issue addressed is a central dividing point between two candidates. For this reason, in
evaluating the content of a newsletter, blog, or other communication, the sponsor must consider
the timing of the communication. In addition, even if a single communication, viewed in
isolation, does not constitute political activity at the time it is made, the communication, together
with subsequent actions the officer takes, may later be viewed as part of a pattern of political
activity. The following examples illustrate some of these considerations.

1
The mass-mailing rule prohibits the mailing at public expense of more than 200 substantially
similar items in a calendar month that feature an elected official. Cal. Govt. Code § 89001. The
California Fair Political Practices Commission, which administers this law, has not yet extended
it to items sent by e-mail. This memorandum does not address this restriction on mailings.
CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY
Memorandum

TO: ALL ELECTED OFFICIALS

DATE: September 7, 2005
PAGE: 3
RE: Use of City Resources for Electronic Newsletters, Constituent E-Mails and Blogs

Example. Two candidates, one of whom is an incumbent, are in a

hotly contested race for the Board of Supervisors in November.
The incumbent, Polly Palmer, has regularly distributed a monthly
e-mail newsletter to voters in her district called "District 13
Happenings," generally filled with descriptions of the legislation
and projects she is working on for the district. In October, the
incumbent renames the newsletter "Palmer's District Happenings"
and distribution of the newsletter is increased to once a week.
Although there may be other offsetting factors, the timing of these
changes (together with the content of the newsletter) suggest that
the newsletter may constitute improper use of government
resources for political purposes.

Example. Two candidates, one of whom is an incumbent, are in a

hotly contested race for a seat on the Board of Supervisors. The
two have long been political opponents. The incumbent, Polly
Palmer, has regularly distributed a monthly e-mail newsletter to
voters in her district called "District 13 Happenings," generally
filled with descriptions of the legislation and projects she is
working on for the district, as well as attacks on her political
opponents, including the one who ultimately entered the race
against her. As the election approaches, Palmer continues to
distribute the newsletter in the same manner and with the same
content.

Notwithstanding that she was consistent in her approach to the

newsletter, use of the newsletter to attack an opponent on the ballot
will likely constitute an unlawful use of City resources.

• TENOR
Even with respect to matters being voted on at an election, the government may provide
balanced, neutral analysis. Thus, communications that are strictly factual, balanced, and
impartial generally should not be characterized as improper political activity. But the more a
communication departs from the strictly factual and impartial presentation of information, the
increased risk the sponsor runs that the communication may be viewed as improper political
activity.

Example. An incumbent official is in a battle with a challenger

over the merits of a new government program that the challenger
championed as head of a local nonprofit organization. The
incumbent's webpage focuses primarily on this issue, asserting that
the program will bankrupt the City and was drafted by a person
who does not understand how government works and is only a tool
of special interests. The webpage does not include any factual
analysis to support these assertions, nor does it discuss any
competing views.
CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY
Memorandum

TO: ALL ELECTED OFFICIALS

DATE: September 7, 2005
PAGE: 4
RE: Use of City Resources for Electronic Newsletters, Constituent E-Mails and Blogs

The official runs the risk that this communication may be viewed
as political activity and not as informational activity because it is
not a balanced, neutral presentation of information, and seems
more directed at attacking the opposing candidate in the election.

Example. An incumbent official is in a battle with a challenger

over the merits of a new government program that the challenger
championed as head of a local nonprofit organization. The
incumbent official's webpage reports on both sides of the debate
over the program, refers readers to the departmental reports
submitted at the committee meeting on the issues, and the minutes
of the meeting where it was adopted. The webpage discusses a
number of other issues of interest to constituents and unrelated to
the challenger.

Because the discussion of the controversial issue is balanced and

factual, consistent with the tenor of the rest of the webpage, the
communication is not likely to be considered improper political
activity notwithstanding that it addresses an issue in controversy in
the election.

• STYLE
Nothing in a government funded or supported electronic newsletter, webpage, blog, or
other communication should include campaign literature, any reference to a campaign, or any
link to campaign materials or websites. As the Supreme Court has observed, the use of public
funds for campaign advertisements "unquestionably constitutes improper campaign activity."
Stanson v. Mott, 17 Cal.3d at 221. Communications that look like campaign advertisements are
likely to be viewed as political, rather than informational activity.

Example. An incumbent official's webpage, entitled "Get

Involved!,” has a list of announcements of interest to constituents,
including new appointments to City commissions, upcoming
hearings, and pending legislation. The webpage also has a picture
of the incumbent. Campaign literature distributed by the candidate
for his upcoming re-election bid consists of a one page flyer, with
his picture, the phrase "Get Involved!," a list of legislative
activities he has sponsored, and a plea to go to the polls and vote
for him.

Because the webpage looks very much like the official's campaign
literature, even though the webpage pre-existed the campaign
literature, the webpage will likely be viewed as improper political
activity.

Example. An incumbent official's newsletter regularly contains

articles touting her achievements and asserting that her political
opponent, who is also a City official, does not have the best
interests of the City at heart and is only in office to line her own
CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY
Memorandum

TO: ALL ELECTED OFFICIALS

DATE: September 7, 2005
PAGE: 5
RE: Use of City Resources for Electronic Newsletters, Constituent E-Mails and Blogs

pockets. The two officers are not currently running against each
other.

The incumbent runs the risk that use of City resources to

personally attack an opponent, even if neither individual is
currently a candidate appearing on the ballot, will be viewed as
political activity. While public resources may be used to provide
information to the voters, that information must be presented in a
factual and balanced manner. Personal attacks on a candidate or
excessive promotion of a candidate, as distinguished from
discussions of City policy, are not part of a balanced impartial
presentation of information and raise the inference that the purpose
of the communication is to influence the voters to vote for or
against a candidate in a future campaign.

III. CONCLUSION
Public resources are to be used for the public's business, as authorized by law. City
officials may not use public resources to engage in campaign and other political activity.
Distinguishing between permissible informational activity and impermissible political activity
may at times be difficult. Presenting fair and balanced information to the voters will not be
viewed as political activity and therefore public officials can avoid concerns about misuse of
resources by confining their publicly financed communications to this type of content.