The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6709

February 11, 1992

STATE COMMISSIONS AND BOARDS:

Use of public funds or classified state employees to urge citizens to lobby legislators

Unless a state agency, commission or board is authorized by constitution or statute to do so, it may not require or permit the expenditure of public funds and/or the utilization of state classified civil service employees to urge citizens to lobby legislators in support or opposition to pending legislation.

Honorable Richard A. Bandstra

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion on two questions which may be combined and restated as follows:

May a state agency, commission or board require or permit the expenditure of public funds and/or the utilization of state classified civil service employees to urge citizens to lobby legislators in support or opposition to pending legislation?

In your request, you have referred to OAG, 1979-1980, No 5597, p 482, 484 (November 28, 1979), which concluded that public funds may not be used to support a candidate or to advocate on behalf of or against an issue appearing on an election ballot:

[W]hile a commission or board may expend appropriated funds to inform the public in an objective manner on issues relevant to the function of the commission or board, it may not expend public funds to urge the electorate to support or oppose a particular candidate or ballot proposal.

See, OAG, 1965-1966, No 4291, p 1 (January 4, 1965); OAG 1965-1966, No 4421, p 36 (March 15, 1965); Phillips v Maurer, 67 NY2d 672; 490 NE2d 542; 499 NYS2d 675 (1986); OAG 1987-1988, No 6423, p 33 (February 24, 1987); OAG 1987-1988, No 6446, p 131 (June 12, 1987).

Your inquiry does not concern the use of public funds in connection with an election, candidate, or ballot proposal. Rather, it concerns the expenditure of public funds to encourage electorate response relative to pending legislation.

Research has disclosed no Michigan case directly on point. However, similar issues have been addressed by the California courts. In Miller v Miller, 87 CalApp3d 762, 771; 151 CalRptr 197 (1978), the California Commission on the Status of Women expended public funds to promote ratification of the proposed equal rights amendment. The court held that the Legislature had not given the Commission the clear and specific authority to promote and advocate a position on the equal rights amendment. As part of its rationale, the court cogently observed:

It is one thing for a public agency to present its point of view to the Legislature. It is quite another for it to use the public treasury to finance an appeal to the voters to lobby their Legislature in support of the agency's point of view. The latter "undermines or distorts the legislative process" just as clearly as "the use of the public treasury to mount an election campaign ... [distorts] the integrity of the electoral process." [Quoting Stanson v Mott, 17 Cal3d 206, 218; 551 P2d 1, 9 (1976) (Emphasis added.) ]

87 CalApp3d at 768.

In support of its decision, the court cited Stern v Kramarsky, 84 Misc2d 447; 375 NYS2d 235 (1975), holding that state agencies cannot expend public funds to advocate approval of proposed constitutional amendments before state legislatures, and analagous cases prohibiting the expenditure of public funds advocating election issues, Citizens to Protect Public Funds v Board of Education, 13 NJ 172; 98 A2d 673 (1953), and Anderson v Boston, 376 Mass 178; 380 NE2d 628 (1978).

The question again came before the California Court of Appeals in Miller v California Comm on Status of Women, 151 CalApp3d 693, 697; 198 CalRptr 877, 880 (1984), where the court upheld the expenditure of public money by the commission to advocate and promote its views to the state legislature because:

The Commission is now "expressly authorized to state its position and viewpoint on issues developed in the performance of its duties and responsibilities." [Cal Gov't Code, Sec. 8246 (West 1991 CumSupp).]

Thus, the second Miller case was based upon subsequent, amendatory legislation expressly authorizing the conduct in question that was lacking when the first case was decided.

Similarily, in State ex rel v Bell, 124 Wash 647; 215 P 326 (1923), in the absence of express grant of authority by the state legislature, an irrigation district's attempt to expend public funds to influence the legislature or Congress was held to be contrary to sound public policy, absent an express grant of power by the state legislature.

It is my opinion, therefore, that unless a state agency, commission or board is authorized by constitution or statute to do so, it may not require or permit the expenditure of public funds and/or the utilization of state classified civil service employees to urge citizens to lobby legislators in support or opposition to pending legislation.

Frank J. Kelley

Attorney General