Fair Political Practices Commission Regulation

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California State Association of Counties & CSBA v. Fair Political Practices Commission (“FPPC”) – Los Angeles County Superior Court (Case No. BS174653)

MEMBER(S) INVOLVED: Filed on behalf of all California school districts and county offices of education

IMPORTANCE OF STATEWIDE ISSUE:

FPPC enforcement of the regulations at issue will impact school boards as they consider whether to place measures on their local ballots and provide informational communications about the measures. As communication mediums change for public agencies, it is important to ensure that school districts can continue to provide information about important ballot measures to the community.

SUMMARY OF THE CASE:

In 2018, CSBA and the California State Association of Counties (“CSAC”) sued the FPPC, the agency responsible for the enforcement of the Political Reform Act (“PRA”), which regulates campaign financing, conflicts of interest, lobbying, and government ethics. Generally, local governments cannot spend public monies to engage in campaign communications that expressly advocate for or against a ballot measure, but are permitted to spend public funds to inform and educate the public about an upcoming ballot measure. The lawsuit alleges that the FPPC’s adoption and enforcement of certain new regulations exceed the Commission’s authority. Specifically, FPPC Regulation section 18420.1, which was issued after the Vargas v. City of Salinas case in 2009, purportedly makes television, electronic media, and radio spots per se violations of the prohibition against spending of public dollars on advocacy, regardless of whether the communication is strictly informational or not. CSBA sought to have the FPPC rescind the regulation through an opposition letter in 2009 and formally petitioning for rulemaking in 2010. At that time, the FPPC Chair indicated that FPPC staff would not include the regulation in its enforcement efforts. As a result, CSBA refrained from seeking redress with the courts.

However, when the FPPC began enforcing the regulations in part, CSBA sued the FPPC. After hearing arguments from the parties on December 4, 2020, the court denied CSAC and CSBA’s petition for writ of mandate and declaratory relief on December 14, 2020, declining to set aside the FPPC regulations. While the court’s ruling denied CSBA and CSAC’s petition and request to enjoin the FPPC from enforcing the regulations at issue, the decision offers some potentially important protections for governing boards and other elected officials involved in educating the public about ballot measures.

The FPPC argued in court that, despite the language of the regulations, it does not interpret its regulations to mean that use of tv, radio and electronic media by government are automatic or “per se” violations of the prohibition against spending of public funds on political advocacy. The FPPC argued instead that communications made using tv, radio and electronic media will be evaluated on a case-by-case basis on whether the content of the message is campaign activity, regardless of the medium used. While the court’s decision did not result in the FPPC being ordered to revise its regulations, the FPPC’s assertions in court should inhibit or “estop” the FPPC from enforcing its regulations to automatically prohibit governing boards from using tv, radio and electronic media to inform and educate the public about ballot measures.

CURRENT STATUS AND/OR OUTCOME:

CSBA and CSAC filed a Notice of Appeal on March 10, 2021. CSBA and CSAC also filed a joint request for an FPPC opinion letter. On May 6, 2021, the FPPC issued a letter in response to the request consistent with the arguments the FPPC made before the court.

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