Can a New York state agency spend public funds to educate the public about a Governor's reform proposal, or does that cross the line into illegal partisan advocacy?

Plain-English summary

The Workers' Compensation Board chairman wanted to know how far his agency could go in talking publicly about the Governor's reform proposals for the Workers' Compensation Law. The constitutional concern came from Article VII, § 8, which says state money "shall not be given or loaned to or in aid of any private corporation or association, or private undertaking." The Court of Appeals had treated that clause as forbidding use of public funds to pay for partisan campaign material, including agency newsletters that crossed into political advocacy.

The AG concluded that the Board could explain the proposed changes, the need for them, the anticipated impact, and the fiscal ramifications. That is government information of the kind agencies are expected to provide. The line gets crossed when materials shift from explaining a proposal to exhorting the public to support a candidate or political party, or to vote yes or no in a referendum. The 1995 Schulz decision (where the Court of Appeals struck down a Department of Economic Development newsletter that promoted the Governor's policies against another political party's positions) and the 1986 Phillips decision (where a school board's "vote yes" handout violated the rule) marked the boundary.

So the Board was free to inform and educate. It could even seek public support for the reforms, in the sense that an educational presentation could explain why the agency thought the changes mattered. What it could not do was distribute campaign rhetoric on the public's dime.

Currency note

This opinion was issued in 1996. 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.

Common questions

Where exactly is the line between education and advocacy?

The Court of Appeals in Schulz looked at the newsletter as a whole. Materials that explain the substance of a proposal, including its rationale, costs, and effects, are educational. Materials that "sought to enlist the public's support in opposition" to a political party or "in favor of the Governor's policies" cross into improper advocacy even if isolated passages would have been fine on their own. In Phillips v Maurer, a school board's leaflet was unlawful because it explicitly urged a "yes" vote on a bond issue.

Could the Board say the reforms are a good idea?

The opinion permits the Board to "seek support" for the reforms in the context of educating the public, by explaining the changes, why the agency thinks they are needed, and their projected impact. The Brennan opinion in the New Jersey Citizens case (which the AG quoted) said it well: a public body can make reasonable expenditures to give voters the relevant facts, including good consequences and bad consequences, but cannot urge readers to vote a particular way.

Does this opinion apply only to ballot measures?

No. Schulz involved a partisan newsletter, not a ballot measure. Phillips and Citizens involved school-bond referenda. The AG read the cases as setting a general principle: agencies may inform, but they may not use public funds to advocate a partisan political position. The principle applies to legislation, ballot measures, candidate-party comparisons, and similar contexts.

What about an agency newsletter that includes some critical points about an opposing position?

The Court of Appeals in Schulz examined the challenged newsletter as a whole and concluded it was an "unequivocal promotion of a partisan political position" even though it contained some material that, standing alone, would have been a proper attempt to educate the public. The presence of any educational content does not cure overall partisan packaging.

Background and statutory framework

Article VII, § 8 paragraph 1 of the New York Constitution forbids gifts or loans of state money to private corporations, associations, or undertakings. The Court of Appeals has read that provision to bar use of agency appropriations for partisan campaign materials.

In Matter of Schulz v State of New York, 86 NY2d 225 (1995), the Court analyzed a Department of Economic Development newsletter and struck it down as an unequivocal promotion of partisan political positions. The Court drew the governing line: agencies do not violate the constitution by encouraging public participation in democracy or by educating voters in a reasonably neutral fashion, but they do violate it by spending appropriations on campaign-style materials.

In Phillips v Maurer, 67 NY2d 672 (1986), the Court held that a school board could spend public money to educate voters about its budget proposals but could not "exhort the electorate" to vote yes.

In Citizens to Protect Public Funds v Board of Education, 13 NJ 172, 98 A2d 673 (1953), the New Jersey Supreme Court (in an opinion by then-Justice Brennan) said a school board has implied power to make reasonable expenditures giving voters relevant facts to aid informed judgment, so long as the presentation is fair and includes all the consequences of the proposal, good and bad. The materials there were unlawful because they urged a yes vote and emphasized dire consequences of a no vote.

Citations

• NY Const Art VII, § 8, prohibiting gifts or loans of state money to private corporations, associations, or undertakings.
• Matter of Schulz v State of New York, 86 NY2d 225 (1995), establishing the governing test on partisan agency communications.
• Phillips v Maurer, 67 NY2d 672 (1986), school-board "vote yes" leaflet held improper.
• Citizens to Protect Public Funds v Board of Education, 13 NJ 172, 98 A2d 673 (1953) (Brennan, J.), persuasive authority on the education-versus-advocacy line.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/96-F8_pw.pdf

Original opinion text

NY CONST ART VII, § 8.
The Workers' Compensation Board may undertake to educate and inform the public about Workers' Compensation Law reform proposals.

June 10, 1996
Hon. Robert R. Snashall
Chairman
Workers' Compensation Board
180 Livingston Street
Brooklyn, NY 11248

Formal Opinion
No. 96-F8

Dear Chairman Snashall:
Your Counsel has asked for an opinion describing the extent to which the Board may undertake to educate the public and interested constituencies regarding the Governor's Workers' Compensation Law reform proposals. As the agency charged with implementing the Workers' Compensation Law, it is appropriate that the Board explain the proposed changes and their anticipated effects to the public. The limited New York case law on use of State funds to communicate with the public concerns matters to be presented to the public for decision at a referendum or election. Generally, the case law prohibits public funding of partisan advocacy aimed at persuading the public to vote a particular way. While the cases do not expressly address the issue of what a government entity may do to inform the public about proposed legislation, they provide some guidance. In Matter of Schulz v State of New York, 86 NY2d 225 (1995), the petitioner alleged that distribution of a newsletter by the Department of Economic Development constituted use of public funds for partisan political purposes in violation of Article VII, § 8 of the State Constitution. That section provides in part that
[t]he money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking; . . .

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In Schulz, the Court carefully examined the challenged newsletter and held that its publication violated the Constitution. The Court first articulated the governing standard. We think it is unassailable that the use of public funds out of a State agency's appropriation to pay for the production and distribution of campaign materials for a political party or a political candidate or partisan cause in any election would fall squarely within the prohibition of article VII, section 8, paragraph 1 of the Constitution. . . . Contrastingly, a governmental agency does not violate article VII, section 8, paragraph 1 merely by using taxpayers' funds for the valid governmental purpose of encouraging the public to participate in the democratic process by voting in an election. Nor would that constitutional provision prevent the use of public funds to inform and educate the public, in a reasonably neutral fashion, on the issues in an election so that voters will more knowledgeably exercise their franchise. Emphasis supplied; 86 NY2d at 234. The Court reiterated the view it took in Phillips v Maurer, 67 NY2d 672 (1986). In that case, the Court examined material distributed by a school district which described the need for passage of a proposed bond issue and expressly urged readers to vote "yes". The Court acknowledged that the school board was authorized to spend public money to educate the public about its budget proposals but held that the board's authority did not extend to dissemination of information, at the taxpayers' expense, patently designed to exhort the electorate to cast their ballots in support of a particular position advocated by the board. 67 NY2d at 674. The Court in Schulz then applied those guidelines to the challenged newsletter. It found that the newsletter improperly "sought to enlist the public's support in opposition" to a political party's alleged position and in favor of the Governor's policies. The Court concluded that, as a whole, the newsletter constituted an unequivocal promotion of a partisan political position, even though it contained some material that, standing alone, would have been considered a proper attempt to educate the public. Id., at 235-236, citing, Phillips, 67 NY2d at 674.

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Courts in other jurisdictions have applied similar standards. In Citizens to Protect Public Funds v Board of Education, 13 NJ 172, 98 A2d 673 (1953), New Jersey's highest court reviewed materials distributed by a school board prior to a referendum on a proposed bond issue. The materials contained a lengthy description of the circumstances necessitating increased funding and the probable tax ramifications. It also included, however, two pages headed "vote yes" and a section listing the many dire consequences of a "no" vote. The court concluded the issue was moot because the election had been held, but, in an opinion by then-Justice William J. Brennan, Jr., it commented on the board's actions because of "the importance of the question". 98 A2d at 674, 676. The court noted that the school board had implied power to make reasonable expenditures to give voters relevant facts to aid them in reaching an informed judgment, as long as the board's presentation was fair and included all consequences of the proposal, good and bad. The court determined that the board did not make a fair presentation of the facts when it urged voters to vote "yes" and emphasized the dire consequences of a "no" vote. 98 A2d at 676-77. We conclude, in accord with the guidelines discussed above, that the Workers' Compensation Board may seek support for the Workers' Compensation Law reform proposals in the context of undertaking to educate and inform the public about the proposals. The Board may explain the changes, the necessity for the changes and their impact, the anticipated fiscal ramifications and provide other relevant information to assist the public in understanding the legislative proposals. These activities are consistent with the general responsibilities of government to provide for an informed citizenry. They are distinguishable from the newsletter that was condemned by the Court of Appeals in Matter of Schulz v State of New York, 86 NY2d 225 (1995) for its inclusion of blatantly political rhetoric. They are also distinguishable from the facts in Phillips v Maurer, 67 NY2d 672 (1986) where the Court of Appeals found that a school district may not urge voters to vote yes prior to a scheduled budget vote. Seeking of support for a legislative proposal in the context of educating the public as to the proposal's main provisions and their impact is consistent with the responsibilities of government to inform its citizenry as to programs and proposals presented and supported by their representatives.

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Very truly yours,

DENNIS C. VACCO
Attorney General