STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6531

August 8, 1988

COLLEGES AND UNIVERSITIES: Expenditure by community college district of funds to provide facts on ballot proposals

ELECTIONS: Filing of reports by voluntary associations advocating for or against ballot proposal

SCHOOLS AND SCHOOL DISTRICTS: Expenditure of funds to provide facts on ballot proposals.

School districts or community college districts may expend public funds to inform their electors in a fair and objective manner of the facts surrounding an upcoming ballot proposal or proposals to be voted upon by the school district or the community college district electors.

A voluntary unincorporated association receiving contributions and making expenditures therefrom to advocate for or against a ballot proposal is subject to the filing requirements of the campaign financing and practices act and may be subject to imposition of fines for violating the Act.

Honorable Art Miller, Jr.

State Senator

The Capitol

Lansing, Michigan 48913

You have requested my opinion on several questions concerning the extent to which institutions of public education and voluntary unincorporated associations may expend funds in connection with an upcoming ballot proposal. It is my understanding that the term "institution of public education" refers only to school districts and community college districts. See OAG, 1987-1988, No 6423, p 33 (February 24, 1987). Your questions will be addressed seriatim.

Your first question is:

School districts have only those powers granted to them either expressly or by reasonably necessary implication in statutes enacted by the Legislature. Snyder v. Charlotte Creuse Public Schools, 368 Mich 557; 118 NW2d 975 (1962), Jacox v. Bd of Education of Van Buren Consolidated School Dist, 293 Mich 126; 291 NW 247 (1940). Similarly, a community college district, as a public body, has only those powers conferred by Const 1963 or state statutes. OAG, 1979-1980, No 5826, p 1108 (December 10, 1980).

OAG, 1987-1988, No 6423, supra, concluded that school districts and other public boards and commissions are not authorized to expend public funds to influence the electorate in support of or in opposition to a particular ballot proposal. OAG, 1965-1966, No 4291, p 1 (January 4, 1965); Phillips v Maurer, 67 NY2d 672; 490 NE2d 542; 499 NYS2d 675 (1986); Elsenau v Chicago, 334 Ill 78; 165 NE 129 (1929); Mines v Del Valle, 201 Cal 273; 257 P 530 (1927).

This prohibition evolves from the concern that such an expenditure of public "funds might be contrary to the desire and even subject to the disapproval of a large portion of" taxpayers and, further, "that it was never contemplated under the Constitution and statutes of this State that our boards ... should function as propaganda bureaus." Mosier v. Wayne County Bd of Auditors, 295 Mich 27, 31; 294 NW 85 (1940); OAG, 1965-1966, No 4421, p 36 (March 15, 1965); OAG, 1965-1966, No 4291, supra.

A public body, however, "may expend public funds to objectively inform the people on issues related to the function of the public body." OAG, 1987-1988, No 6423, supra; OAG, 1965-1966, No 4421, supra; OAG, 1979-1980, No 5597, p 482 (November 28, 1979).

It has been held that a board of education of a school district has implied power to make reasonable expenditures to provide a fair presentation of facts relating to a school bond election so as to aid school electors in reaching an informed judgment on proposed issues to be voted at the school election. Citizens to Protect Public Funds v Bd of Education of Parsippany-Troy Hills Twp, 13 NJ 172, 179; 98 A2d 673, 677 (1953). The expenditure of public funds for such purposes will be held invalid if the presentation of facts, including good and bad features, is not fairly presented. Hankin v Bd of Education of Hamilton Twp, 47 NJ Super 70; 135 A2d 329, 334 (1957).

It is my opinion, in answer to your first question, that school districts or community college districts may expend public funds to inform their electors in a fair and objective manner of the facts surrounding an upcoming ballot proposal or proposals to be voted upon by the school district or the community college district electors.

Your second question is:

There is no statutory proscription to a voluntary unincorporated association making expenditures to advocate the passage or defeat of a ballot proposal. If it does so, it is not exempt from the requirements of the campaign financing and practices act, MCL 169.201 et seq; MSA 4.1703(1) et seq, since the definition of "person" for purposes of that statute includes an "association ... or any other organization or group of persons acting jointly." MCL 169.211(1); MSA 4.1703(11)(1). See also OAG, 1977-1978, No 5328, p 520 (July 7, 1978).

It is my opinion, in answer to your second question, that a voluntary unincorporated association making expenditures in support of or in opposition to a ballot proposal is not exempt from the requirements of the campaign financing and practices act.

Your third question is:

The campaign financing and practices act, MCL 169.201 et seq; MSA 4.1703(1) et seq, makes failure of a voluntary unincorporated association receiving contributions for or making expenditures to advocate the passage or defeat of a state-wide ballot proposal to file certain documents or filing incomplete or inaccurate documents required to be filed a misdemeanor subject to imposition of fines. See MCL 169.224(1), 169.234(6) and (7), and 169.235(5); MSA 4.1703(24)(1), 4.1703(34)(6) and (7), and 4.1703(35)(5). A person may file a complaint alleging violation of the campaign finance and practices act with the Secretary of State. MCL 169.215(2); MSA 4.1703(15)(2).

It is my opinion, in answer to your third question, that failure of a voluntary unincorporated association receiving contributions for or making expenditures to advocate the passage of or defeat of a ballot proposal to file under the campaign financing and practices act is a misdemeanor subject to imposition of fines and complaints alleging violation should be filed with the Secretary of State.

Your fourth question is:

Some of the criminal violation sections cited above specifically name an organization's treasurer the responsible party who may be charged, while other sections make reference to the liability of the "committee" or "person."

It is my opinion, in answer to your fourth question, that depending upon the nature of the violation and the sanction to be imposed, the association itself, the treasurer and/or other officers or members with particular knowledge of or involvement in the criminal activity may be charged, and upon conviction, be held criminally responsible.

Frank J. Kelley

Attorney General