Can a Minnesota city use city email accounts, the city's social media, or other public resources to push voters to vote one way on a ballot question, especially during a pandemic when in-person meetings are limited?

Plain-English summary

Bloomington City Attorney Melissa Manderschied wrote to AG Keith Ellison in October 2020. Voters in Bloomington faced three ballot questions in the November 3 general election. The city wanted to know whether its officials could use city email accounts, the city's social media, and other digital tools to advocate for one side of a ballot question. The pandemic added urgency because in-person voter outreach was limited. The City Attorney asked the AG to revisit a 1966 AG opinion that had said public funds could not be used for one-side advocacy.

The AG, through Assistant AG Jacob Campion, declined to revisit the 1966 rule.

The reasoning rests on a long line of AG opinions and one Minnesota Court of Appeals decision.

The first AG opinion in this line was Op. Att'y Gen. 442-a-20 (July 18, 1927). The 1927 AG concluded that spending taxpayer money to pay an association to campaign for one side of a proposed constitutional amendment was "against public policy, and illegal." The reasoning: "some of the taxpayers may feel one way and some another," so spending public money for or against a political proposition forces some taxpayers to fund speech they oppose. The AG reaffirmed the same view in 1928 and 1952.

In 1957 and 1962, the AG drew the limit at "facts and data." A school district could spend a reasonable amount of public funds to disseminate factual information so voters could make an informed decision. That was educational, not advocacy.

In 1966 (Op. Att'y Gen. 159a-3, May 24, 1966), the AG sharpened the rule by answering three specific questions: (1) school district funds for creating and mailing literature urging a bond issue passage (no); (2) school district funds for mailing literature created by others (no); (3) school board members orally advocating to citizens' groups (yes). The first two answers cited Citizens to Protect Pub. Funds v. Bd. of Ed. of Parsippany–Troy Hills Twp., 98 A.2d 673 (N.J. 1953), which held that public funds belong equally to proponents and opponents and cannot be used to support only one side.

The 2020 opinion confirmed all of that and extended none of it. The key question, AG Campion wrote, "remains the same: Is the City or its officials using public funds to advocate for only one side of a ballot question? If the answer is yes, then the expenditure is unlawful and against public policy."

The Minnesota Court of Appeals reached the same conclusion in Abrahamson v. St. Louis County Sch. Dist., 802 N.W.2d 393 (Minn. App. 2011), aff'd in part, rev'd in part, 819 N.W.2d 129 (Minn. 2012). The Court of Appeals held that "although a school district may expend a reasonable amount of funds for the purpose of educating the public about school-district needs and disseminating facts and data, a school district may not expend funds to promote the passage of a ballot question by presenting one-sided information on a voter issue." The Minnesota Supreme Court granted review and resolved the case on other grounds, leaving the Court of Appeals analysis intact as guidance.

The Bloomington City Attorney's specific questions about whether city email and social media accounts can be used were answered with a caveat: the AG could not say definitively because the answer turns on whether the city is expending public funds to create, maintain, and use those accounts. That's a factual determination for the city. But if public funds are involved, the AG concluded a Minnesota court would likely find the use unlawful.

The opinion specifically rejected a "de minimis" exception. The Minnesota State Auditor's 2014 Statement of Position is consistent: elected officials may orally advocate "as long as no expenditure of public funds is involved." No Minnesota statute or case recognizes a small-amounts exception. Until the Legislature creates one, all unauthorized expenditures are prohibited, no matter how small.

The opinion also addressed Minn. Stat. § 10.60, which authorizes some publications and websites funded with public money. The AG read § 10.60 as not applying to ballot-question advocacy by city officials for three reasons: (1) the section only permits material that provides information about the duties or jurisdiction of a political subdivision, or facilitates access to public services; (2) the Legislature addressed ballot-question advocacy only on the Secretary of State's website; (3) § 10.60 was on the books when Abrahamson was decided and did not change the result.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Local government attorneys planning ballot-question communications should check current statutes, court decisions, and any updated AG opinions.

What the opinion meant at the time

For city attorneys advising on ballot-question communications in 2020, the opinion called for determining whether public funds were being spent on one-sided advocacy. Earlier opinions allowed reasonable spending on facts and data to inform voters. The AG expressly left Bloomington's spending on its email and social media accounts for the city to determine.

For city council members and school board members, the opinion cited earlier guidance allowing oral advocacy to citizens' groups when no public funds are spent. For written advocacy through city accounts, the AG said the answer depends on whether the city spends public funds to create, maintain, and use those accounts. The city must make that factual determination.

For public communications officers and information staff, the practical rule was to keep website and social media content educational. Provide the text of the ballot question, the factual background, both sides of the debate when known, and a link to authoritative resources. Do not endorse a side.

For school boards facing bond-election communications, the Abrahamson analysis was particularly important. Districts could explain "school-district needs" and "disseminate facts and data," but they could not "present one-sided information" promoting passage of the bond question.

For attorneys reviewing a proposed communication, the AG said it knew of no Minnesota case or statute recognizing a de minimis exception. In its view, even a small unauthorized expenditure would be prohibited.

For local elected officials wanting to advocate personally, the opinion cited the 1966 AG guidance on oral communication to citizens' groups, provided no public funds are spent. It did not prescribe which personal accounts or devices officials must use for written advocacy.

Common questions

Q: Does this opinion decide whether an official can advocate through a mixed-use social media account?
A: No. The AG did not decide whether particular accounts involved public spending. The city must determine whether it spends public funds to create, maintain, or use the account for one-sided advocacy.

Q: Did the pandemic exception change the analysis?
A: The City Attorney specifically asked about the pandemic and the limited ability to gather in person. The AG declined to recognize a pandemic exception. The 1927 reasoning that taxpayer money cannot be used for political advocacy without taxpayers' consent applies in pandemic conditions just as in normal ones.

Q: What if the city's email or social media is provided through a free third-party service so the marginal cost of additional posts is zero?
A: The AG did not decide whether a free service involves public spending. The city must make that factual determination. If public funds are spent on one-sided advocacy, the AG believed a court would likely find the expenditure unlawful even if the amount is small.

Q: Can a city pay for a public hearing or "town hall" on a ballot question without violating this rule?
A: The opinion does not decide how to run a hearing or town hall. It distinguishes reasonable spending on facts and data that inform voters from spending to advocate for one side of a ballot question.

Q: What about the cost of preparing the official notice of the election or the official explanation of the ballot question?
A: The opinion does not address election notices or official explanations. Its answer concerns spending public funds to advocate for one side of a ballot question.

Q: Can a city use public funds to inform voters about the impact of a tax measure on their property taxes?
A: The opinion cites decisions allowing reasonable spending to disseminate facts and data so voters can make an informed decision. It does not assess a particular tax-impact statement.

Q: What's the remedy if a city violates this rule?
A: The opinion does not specify a remedy. It says a court would likely find spending public funds on one-sided ballot-question advocacy unlawful and against public policy.

Q: Has the Legislature created an exception since 2020?
A: The opinion was issued in October 2020. Legislative changes since then would need to be checked against current statutes. As of the opinion, no exception existed.

Background and statutory framework

The Minnesota AG opinions on public funds and ballot-question advocacy trace back to 1927. The recurring concern: taxpayer money belongs equally to proponents and opponents of a public question, so spending it for one side coerces taxpayers to fund speech they oppose. Citizens to Protect Pub. Funds v. Bd. of Ed. of Parsippany–Troy Hills Twp. (N.J. 1953) supplies the foundational case from another state's supreme court, which Minnesota AG opinions have repeatedly endorsed.

The Minnesota Court of Appeals in Abrahamson v. St. Louis County Sch. Dist., 802 N.W.2d 393 (Minn. App. 2011), aff'd in part, rev'd in part, 819 N.W.2d 129 (Minn. 2012), confirmed the rule with one important framing: a school district can educate and provide facts and data, but cannot use public funds to "promote the passage of a ballot question by presenting one-sided information." The Minnesota Supreme Court granted review but did not need to reach the substantive question to resolve the case. Fishel v. Encompass Indem. Co. (Minn. App. 2017) confirms that the Court of Appeals "typically follows the rule of law announced in a published opinion, even one subject to further review, until the Minnesota Supreme Court announces a different rule of law."

The opinion quotes the Minnesota State Auditor's 2014 Statement of Position on elected officials' oral advocacy: permitted "as long as no expenditure of public funds is involved."

Minn. Stat. § 10.60 addresses publications and websites funded with public money. It limits permitted material to information about "the duties and jurisdiction" of the political subdivision, or material that "facilitate[s] access to public services and information related to the responsibilities or functions" of the political subdivision. The Legislature addressed ballot-question advocacy only in the context of the Secretary of State's website, which is treated separately.

Minn. Const. Art. X, § 1 and Minn. Stat. § 412.211 supply the broader public-purpose framework for city expenditures.

The opinion distinguishes reasonable spending to disseminate facts and data from spending to promote passage by presenting one-sided information. It does not decide whether a particular message crosses that line.

Citations and references

Statutes:

• Minn. Const. Art. X, § 1
• Minn. Stat. § 10.60
• Minn. Stat. § 412.211

Cases:

• Abrahamson v. St. Louis County Sch. Dist., 802 N.W.2d 393 (Minn. App. 2011), aff'd in part, rev'd in part, 819 N.W.2d 129 (Minn. 2012)
• Citizens to Protect Pub. Funds v. Bd. of Ed. of Parsippany-Troy Hills Twp., 98 A.2d 673 (N.J. 1953)
• Fishel v. Encompass Indem. Co., A16-1659, 2017 WL 1548630 (Minn. App. May 1, 2017)

Prior AG opinions referenced:

• Op. Att'y Gen. 442-a-20 (July 18, 1927)
• Op. Att'y Gen. 442-a-20 (Mar. 16, 1928)
• Op. Att'y Gen. 442-a-20 (July 10, 1952)
• Op. Att'y Gen. 159b-11 (Sept. 17, 1957)
• Op. Att'y Gen. 159a-3 (May 25, 1962)
• Op. Att'y Gen. 159a-3 (May 24, 1966)
• Op. Att'y Gen. 629-a (May 9, 1975)

Other authorities:

• Minnesota State Auditor, Statement of Position (2014)

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/355a-20201027.pdf

Original opinion text

Public Funds-General-City: Regardless of new technology or public health crises, a city may not use public funds to advocate for one side of a ballot question. Minn. Const. Art. 10 § 1, Minn. Stat. §§ 10.60, 412.211

355a
(Cr. Ref. 159a-3, 442a-20)
October 27, 2020

VIA EMAIL: [email protected]

Melissa Manderschied
Bloomington City Attorney
1800 W. Old Shakopee Road
Bloomington, MN 55431-3027

RE: Question of Interpretation of Op. Att'y Gen. 159a-3 (May 24, 1966)

Ms. Manderschied:

Thank you for your correspondence, which this Office received on October 19, 2020. You state that voters in the City of Bloomington are being asked three ballot questions during the November 3, 2020 General Election. You request an opinion from this Office regarding whether city officials may use written communication such as email and social media to advocate for one side of a ballot question.

As explained further below, we cannot answer your question definitively because the answer turns on whether the City of Bloomington is expending public funds to create, maintain, and use its email and social media accounts, which is a factual determination for the City. If the written communications you describe would involve the expenditure of public funds, we believe a Minnesota court would likely find them to be unlawful and against public policy.

BACKGROUND

As you note, this Office has issued several opinions related to this subject. In 1927, we concluded that spending taxpayer money to pay an association to campaign for one side of a proposed constitutional amendment is "against public policy, and illegal." Op. Att'y Gen. 442-a-20 (July 18, 1927). We reasoned that "some of the taxpayers may feel one way and some another," so if a town were to spend public money "for or against some political proposition, some of the taxpayers will find their money being spent without their consent, campaigning for a proposition to which they are opposed, or vice versa."

1. This Office gave similar opinions in 1928 and 1952. Op. Att’y Gen. 442-a-20 (Mar. 16, 1928); Op. Att’y Gen. 442-a-20 (July 10, 1952).

In 1957 and 1962, we opined that a school district may expend a reasonable amount of public funds to disseminate facts and data about a ballot question so voters can make an informed decision. Op. Att’y Gen. 159b-11 (Sept. 17, 1957); Op. Att’y Gen. 159a-3 (May 25, 1962). We were then asked in 1966 to issue an opinion on three questions: (1) whether a school district may expend a reasonable amount of public funds to create and mail literature urging the passage of a bond issue; (2) whether a school district may expend a reasonable amount of public funds to mail advocacy literature if others paid the cost of creating it; and (3) whether members of the School Board could advocate for passage of the bond issue when making oral presentations to citizens’ groups. Op. Att’y Gen. 159a-3 (May 24, 1966).

This Office answered the first two questions in the negative, citing an opinion from the New Jersey Supreme Court that reached the same conclusion. Id. (citing Citizens to Protect Pub. Funds v. Bd. of Ed. of Parsippany–Troy Hills Twp., 98 A.2d 673, 676–78 (1953)). Like our 1927 opinion, the New Jersey Supreme Court explained that “[t]he public funds entrusted to the board belong equally to the proponents and opponents of the proposition,” so the board cannot use public funds to advocate only one side “without affording the dissenters the opportunity by means of that financed medium to present their side.” Id. at 677.

As for the third question, whether school board members could orally advocate for passage of a bond issue when presenting to citizens’ groups, we concluded that board members “like other public officials, are free to appear before citizens’ groups to support their decision and advocate approval of a bond issue.” Op. Att’y Gen. 159a-3 (May 24, 1966).

QUESTIONS

Fifty-four years have passed since our 1966 opinion. As you note, government entities and public officials now have additional methods for communicating with voters like email, websites, and social media, all of which can be utilized through mobile devices. We are also currently in the midst of a global pandemic where in-person gatherings are restricted and discouraged. You ask us to revisit our 1966 opinion in light of these developments.

You ask the following three questions: (1) during a public health pandemic when gathering in large groups in person is discouraged, may city officials use written communication like email and social media to advocate for one side of a ballot question; (2) when it is again safe for large groups to gather in person, may city officials use written communication like email and social media to advocate for one side of a ballot question; (3) if such written communication is permissible, can a city-issued device or account be used for such purposes as long as the financial cost to the City is de minimis?

LEGAL ANALYSIS

We believe our analysis in the 1966 opinion is still correct, and we decline to extend it. Regardless of new technology or public health crises, the key question remains the same: Is the City or its officials using public funds to advocate for only one side of a ballot question? If the answer is yes, then the expenditure is unlawful and against public policy.

Indeed, the Minnesota Court of Appeals came to the same conclusion in 2011. Abrahamson v. St. Louis County Sch. Dist., 802 N.W.2d 393 (Minn. App. 2011), aff'd in part, rev'd in part, 819 N.W.2d 129 (Minn. 2012). The Court held that "although a school district may expend a reasonable amount of funds for the purpose of educating the public about school-district needs and disseminating facts and data, a school district may not expend funds to promote the passage of a ballot question by presenting one-sided information on a voter issue."

2. The Court found our opinions to be “instructive” and found the New Jersey Supreme Court case and similar cases in other states to be “persuasive.” Id. at 401–02.

The Minnesota Supreme Court granted review, but determined that it did not need to decide that issue because it could resolve the case on other grounds. Abrahamson v. St. Louis County Sch. Dist., 819 N.W.2d 129, 135 (Minn. 2012). Nevertheless, we believe the Court of Appeals decision still supports this Office’s long-standing position on this question. See Fishel v. Encompass Indem. Co., A16-1659, 2017 WL 1548630, at *2 (Minn. App. May 1, 2017) (stating that the Court of Appeals “typically follows the rule of law announced in a published opinion, even one subject to further review, until the Minnesota Supreme Court announces a different rule of law”).

In addition, the Minnesota State Auditor issued a Statement of Position in 2014 on this subject. The Auditor stated that "it has been generally recognized that elected officials may appear before citizens to orally advocate for a particular position as long as no expenditure of public funds is involved."

Turning to your specific questions about city officials using the city's email and social media accounts to advocate in writing for one side of a ballot question, we are unable to answer definitively. The answer turns on whether the City of Bloomington is expending public funds to create, maintain, and use its email and social media accounts, which is a factual determination.

This Office does not make factual determinations in its opinions. Op. Att’y Gen. 629-a (May 9, 1975).

If the written communications you describe would involve the expenditure of public funds, then a Minnesota court would likely find them to be unlawful and against public policy. We are not aware of any Minnesota case or statute recognizing an exception for de minimis expenditures of taxpayer money. Until the Legislature says otherwise, we believe that Minnesota courts would find that all unauthorized expenditures are prohibited, no matter how small. See also, e.g., Op. Att’y Gen. 159a-3 (May 24, 1966) (postage is not a permissible expense).

We recognize that the Legislature has addressed the use of publications and websites funded with public money to some extent in Minn. Stat. § 10.60. But we do not believe this statute applies to your questions for at least three reasons. First, the permitted material must be used "to provide information about the duties and jurisdiction of a . . . political subdivision or to facilitate access to public services and information related to the responsibilities or functions of the . . . political subdivision." Second, the Legislature addressed ballot question advocacy only when discussing the Secretary of State's website. Third, section 10.60 existed when the Court of Appeals decided Abrahamson, but it did not affect the outcome.

Thank you again for your correspondence.

Sincerely,

/s/ Jacob Campion
JACOB CAMPION
Assistant Attorney General

(651) 757-1459 (Voice)
(651) 282-5832 (Fax)
[email protected]

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