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June 9, 2000
Mr. Benjamin Wilson
Ms. Cecily Collier-Montgomery
Dear Mr. Wilson and Ms. Collier-Montgomery:
Yesterday, June 8, 2000, Mayor Anthony A. Williams revealed that in the campaign to support Charter Amendment #3, the School Governance Charter Amendment, which is the subject of the special election scheduled for June 27, 2000, he was going to use government employees working during their regularly scheduled work hours, government facilities, and government supplies, all of which are paid for by the funds of the District of Columbia government.
Clearly, using government employees, facilities, and supplies in a political campaign is illegal, whether or not the election is partisan. However, Mayor Williams claims that their use is legal in this election campaign. His rationale is supported by the attached memorandum from Darryl G. Gorman, Senior Deputy Corporation Counsel for the Legal Counsel Division. The crux of Mr. Gorman's argument is contained in footnote 2, on page 4 of the memorandum, in which he argues that: As the school governance referendum is to amend the District Charter, the public can essentially be viewed as the legislative body and thus those employees who would normally lobby the Council could lobby the public.
Mr. Gorman's rationale seeks to confuse political campaigning in an election with lobbying, which is defined in the District of Columbia Code (I-1451(7)(A)): The term lobbying means communicating directly with any official in the legislative or executive branch of the District of Columbia government with the purpose of influencing any legislative action or an administrative decision. The fact that the subject of this election is a legislative change does not transform the voting public of the District of Columbia into the legislative branch of the government or into the City Council. If Mr. Gorman's and the Mayor's rationale were allowed to stand, the full weight of the government could be used in any election campaign for or against any initiative or referendum measure, all of which by definition involve a change in the laws of the District of Columbia.
This opinion by the Corporation Counsel's office was first revealed to the public yesterday, at a press conference held by the Mayor to support the Charter Amendment. That press conference was held in a public school. It was attended primarily (about 75 percent) by employees of the District of Columbia during their regular work hours. Those employees were wearing campaign buttons and were distributing campaign materials. Some of the campaign materials themselves were admittedly prepared by government employees and were reproduced in government offices using government supplies. None of the campaign materials listed a campaign committee, and no campaign committee supporting the Charter Amendment has been registered with the Office of Campaign Finance. Employees of the Office of the Mayor refused to reveal whether public funds were used to purchase the campaign posters and buttons that were displayed.
Since fewer than three weeks remain in the campaign period leading up to the special election, I am requesting the Office of Campaign Finance and the Board of Elections and Ethics to issue immediate decisions clarifying that the Special Election to be held on June 27, 2000, is an election and not a legislative session of the public; that campaigning for or against the Charter Amendment is political campaigning and not legislative lobbying; and that any use of government employees during their regular work hours, of government facilities, and of government supplies to campaign for or against the Charter Amendment is contrary to the campaign laws and regulations of the District of Columbia. In other words, I am asking that you inform the Mayor that the campaign laws of the District apply to this election, just as they do to any other election.
I am also requesting the Office of Campaign Finance to investigate whether the use of government employees, facilities, and supplies on and before the press conference of June 8, 2000, constitutes violations of the campaign laws and regulations; to determine whether the failure to register a committee to conduct the campaign to support the Charter Amendment violates campaign laws and regulations; and to determine whether public funds were used illegally to pay for and purchase campaign materials such as flyers, buttons, and posters and to rent a campaign headquarters.
Dorothy A. Brizill
cc: Mayor Anthony A. Williams
June 14, 2000
Ms. Cecily Collier-Montgomery
Re: Case No. MUR 00-01
Dear Ms. Collier-Montgomery:
This letter supplements my complaint to your office of June 9, 2000, now referenced as your case number MUR 00-01.
Factual Account of Potential Election and Campaign Law Violations
Mayor Anthony A. Williams held a press conference on June 8, 2000, to kick off his election campaign to support the School Governance Charter Amendment, which is the subject of a special election to be held on June 27, 2000. At that press conference, District Government employees, resources, and facilities were used but the use of government employees, resources, and facilities also predated that press conference.
In early May 2000, the Mayor had several meetings with his senior staff to plan election strategy and to plan and conduct fundraising activities. During that period, he designated Gregory McCarthy, Director of the DC Office of Policy and Evaluation, to coordinate the work of DC government employees and outside political consultants, and he assigned Mr. McCarthy and his staff in the Office of Policy and Evaluation as a part of their normal work duties, during normal working hours, and using their offices to devise and carry out a strategy for that political campaign.
In the period leading up to the June 8, 2000, campaign kickoff, Mr. McCarthy worked with, among others, the following government employees on the election campaign:
Mr. McCarthy and these and other government employees met with and planned campaign strategy with the following individuals, among others:
The June 8 press conference, held at J.O. Wilson Elementary School, 660 K Street, NE, began at approximately 1:30 p.m., and lasted for approximately one hour and forty-five minutes. Prior to, during, and after the press conference, numerous government employees were present as organizers of the event and supporters of the campaign. In addition, about 75 percent of the attendees at the event were DC government employees, members of DC boards and commissions, contractors, or consultants. Photographs of the event and government employees who were participants in the campaign event are attached as Attachment I. Videotapes of the press conference were taken by Channel 16, DC Office of Cable Television, and by Channel 4, WRC-TV; and still photographs were taken by the Mayor's official photographer, Lateef Mangum.
The following government employees, among many others, were present:
At the June 8 meeting, the Mayor's staff distributed three pieces of electioneering materials that were prepared by government employees and produced and distributed using public funds (Attachment II).
The use of government employees and resources for the campaign has continued since the press conference. For example, on June 13, 2000, beginning at approximately 6:30 p.m., a strategy meeting was held at the campaign headquarters of the New School Leadership Committee, 1443 Pennsylvania Avenue, SE. Almost all of the attendees at this meeting were senior DC government employees, as well as a political consultant to the Administration. While their attendance at this meeting was after business hours, some employees used official government automobiles after business hours to drive to and from the meeting.
The use of these vehicles violated a direct prohibition in the District of Columbia FY2000 Appropriations Act, Sec. 139(a): "Except as otherwise provided in this section, none of the funds made available by this Act or by any other Act may be used to provide any officer or employee of the District of Columbia with an official vehicle unless the officer or employee uses the vehicle only in the performance of the officer's or employee's official duties." Photographs of the vehicles on this date and at this meeting are attached as Attachment III.
US District Court Decision
The controlling legal authority in this case is the decision of the US District Court for the District of Columbia in District of Columbia Common Cause, et al., Plaintiffs v. The District of Columbia, and David E. Rivers, Defendants, C.A. No. 85-3528, which is appended as Attachment IV. This case presents a direct parallel to the current case, since in it Common Cause challenged "the legality of the District of Columbia government's expenditure of public funds to prepare and distribute electioneering material taking only one side of a ballot question submitted to District of Columbia voters through the initiative process." The Court found:
Citations in the D.C. Code, the D.C. Municipal Regulation, the D.C. Personnel Manual, the District Charter, and Federal Law
In addition to the sections of the D.C. Personnel Manual cited by the Office of Campaign Finance in its letter of June 12, 2000, other relevant laws and regulations include:
Inaccuracies in June 9, 2000, filing
On June 9, 2000, the Mayor's Deputy Chief of Staff, Mark Jones, who was also acting as the campaign manager for the campaign, filed a statement of organization with the Office of Campaign Finance for the New School Leadership Committee. That filing contains at least two factual inaccuracies and omissions. These are:
A Second Campaign Committee Has Not Filed with the Office of Campaign Finance
At a meeting during the latter part of May 2000 that was attended by Mayor Williams, Delegate Eleanor Holmes Norton, Council Chair Linda Cropp, and several members of their staffs including Gregory McCarthy, Peggy Armstrong, and Mickey Seligman of the Mayor's staff Mayor Williams discussed the need to raise $80,000 quickly for his campaign efforts. He indicated that he had in hand $45,000 that had been raised by Terry Golden, a member of the Control Board's Education Advisory Committee, and by the Federal City Council. Mayor Williams also indicated that he was going to use a nonprofit organization, separate from the official campaign committee, through which he would funnel the bulk of the funds that he raised.
With this information, Gary Imhoff of DCWatch placed a telephone call to the office of Terry Golden on Monday, June 12, 2000, and spoke with Mr. Golden's assistant, Ms. Tammy Butler (301-380-4780). He asked how to make a contribution to Mr. Golden's fundraising efforts for the School Governance Charter Amendment. Ms. Butler called back within five minutes with the information that the check should be made payable to D.C. Agenda, and sent to it at 1155 15th Street, NW, Suite 900, Washington, DC 20005, and to write on the memorandum line of the check, Campaign for New School Leadership.
DC Agenda is a 501(c)(3) organization. It has not registered a campaign committee with the Office of Campaign Finance for the purpose of advocating for the June 27, 2000, special election, even though our information indicates that it has been accepting funds for this purpose for several weeks. It appears that this account has been established to circumvent disclosure of receipts and expenditures to the Office of Campaign Finance and to provide a tax-deductible shelter for contributions that would not be tax deductible were they given directly to the New School Leadership Committee.
I also have reason to believe that the AOL Foundation has made or will make independent expenditures on behalf of the School Governance Charter Amendment. I therefore request the Office of Campaign Finance to inform the AOL Foundation that it would be required to file a statement of organization and report of receipts and expenditures with the Office of Campaign Finance should it make or have made independent expenditures on this matter.
I appreciate this opportunity to provide additional information about my complaint. Should you have any questions or need any further information, please do not hesitate to contact me.
DISTRICT OF COLUMBIA COMMON CAUSE, et al., Plaintiffs, v. THE
DISTRICT OF COLUMBIA, and DAVID E. RIVERS, Defendants
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MEMORANDUM OPINION AND ORDER
This action challenges the legality of the District of Columbia government's expenditure of public funds to prepare and distribute electioneering material taking only one side of a ballot question submitted to District of Columbia voters through the initiative process. Plaintiff Common Cause/D.C. and three individual plaintiffs sought a declaration that such expenditures violate the rights of District of Columbia voters and taxpayers under the First and Fifth Amendments of the Constitution of the United States and that the government's action were also ultra vires because the expenditures were not authorized by any statute or appropriations act. Plaintiffs also sought to permanently enjoin the government from expending public funds and using government employees to prepare electioneering material taking only one side in an initiative election in the future.
This case comes before the court on plaintiffs' notion for partial summary judgment under Rule 56 of the Federal Rules of Civil Procedure on the issue of liability, and the government's motion to dismiss or, in the alternative, for summary judgment.1 For the reasons stated below, plaintiffs' motion for partial summary judgment is granted, and the government's motion to dismiss, or in the alternative, for summary judgment, is denied.
The facts in this case are for the most part undisputed. On November 6, 1984, the D.C. government distributed pamphlets, flyers, and posters at various polling places around the District of Columbia urging District of Columbia voters to vote against Initiative No. 17, an initiative measure appearing on the ballot that day which would require the District of Columbia government to guarantee overnight shelter for homeless people. The material did not purport to present the pros and cons of the initiative but was devoted solely to a presentation of the reasons why D.C. voters should vote against Initiative 17 and an exhortation to "Vote No on Initiative 17!" Some of these materials prominently displayed the names of private organizations said to oppose the proposed initiative, but did not include the names of any organizations or groups that favored it, or their reasons for favoring its adoption. These materials bore the statement "Distributed by the District of Columbia." The materials were prepared by District of Columbia government employees and printed with funds appropriated to the District of Columbia Department of Human Services. The government also used government facilities and materials to reprint similarly one-sided electioneering material prepared by groups that opposed the initiative measure. No similar financial or in-kind support was provided to groups that favored the initiative.
I. JURISDICTIONAL ISSUES
Before addressing the merits of this case, it is necessary, at the outset, to dispose of the government's contention that plaintiffs' federal cause of action must be dismissed for lack of jurisdiction under the case or controversy requirement of Article III of the Constitution. The government asserts two grounds for dismissal: lack of standing and mootness.
The government contends that this case is moot because the November, 1984 election has come and gone, and therefore plaintiffs' constitutional claims must be dismissed. This contention is without merit. The requirement of Article III of the Constitution that a "live controversy" exist at all stages of federal court litigation is satisfied where a controversy is "capable of repetition, yet evading review." First National bank of Boston v Bellotti, 435 US. 765, 774 (1978) (Plaintiffs' challenge to a state statute forbidding corporate expenditures to influence the vote on certain referendum proposals was not mooted by the passing of the election). The expenditures in this case, which became known to the public only on the day of the election, are a classic example of the class of controversies "capable of repetition, yet evading review." Plaintiffs' challenge is therefore not mooted by the passing of the election.
The government has also challenged the standing of Common Cause/D.C. and the individual plaintiffs to bring this action. I am persuaded that Common Cause/D.C. and the three individual plaintiffs have standing to challenge the constitutionality of the government's expenditures, on behalf of District of Columbia residents, voters and taxpayers who voted in the November 6, 1984 election in the District of Columbia. Plaintiffs clearly have standing to protect their interest in a fair political process. The government's expenditures to prepare electioneering material advocating only one side of an election issue interfered with that right. See Campbell v Arapahoe City School District, 90 F.R.D. 189 (D. Colo. 1981), aff'd 704 F.2d 501 (10th Cir. 1983) (holding that individual plaintiffs who were "residents, taxpayers, and qualified electors" had standing as voters and taxpayers within the defendant governmental units to seek a declaratory judgment that the government unlawfully expended public funds to oppose an initiative measure.) Accordingly, the government's motion to dismiss for lack of standing is denied.2
A. First Amendment Claim
Plaintiffs claim that the government's expenditures to prepare electioneering material taking only one side of a contested election issue amount to a content-based government subsidy, and that such expenditures therefore violate the First Amendment rights of District of Columbia voters. I agree.
Plaintiffs' First Amendment claim is controlled by Greenberg v Bolger, 497 F.Supp. 756 (E.D.N. Y. 1980), in which the court held that the preferential mailing rates allowed to selected political parties constituted a content-based burden on the First Amendment rights of parties and candidates who were not provided with a similar postal subsidy. Here, there can be no doubt that the challenged expenditures were made on the basis of political ideas, and not some content-neutral criteria. The government aligned itself in the political fray as being opposed to the enactment of Initiative 17, providing groups sharing this viewpoint with the valuable use of government facilities, equipment, materials and employees, thereby unfairly tipping the scales of the electoral balance in favor of one side of the initiative election. The government has an obligation to remain neutral and not spend public funds advocating or opposing an initiative on the ballot. Such expenditures must therefore be declared unlawful and permanently enjoined.
B. Misuse of Appropriated Funds
The challenged expenditures were also in excess of the government's authority under District of Columbia law and therefore ultra vires. The D.C. Code provides that "no amount may be obligated or expended by any officer or employee of the District of Columbia government unless such amount has been approved by act of Congress, and then only according to such act." D.C. Code §47-304 (Michie 1985). The government has not shown that any statute, legislative resolution, or appropriations measure exists which expressly authorizes the expenditure of public funds for partisan political purposes.
While the government argues that the challenged expenditures are within the "implied" authority of the D.C. Department of Human Services, such an "implied" authority cannot be reconciled with the various legislative pronouncements from Congress indicating a clear intent to preclude the District of Columbia government from engaging in partisan political activities. The clearest expression of this intent is in Section 9(a)(1) of the Hatch Act, 5 US.C. § 7324(a)(1) (1982), the long-standing prohibition barring federal and District of Columbia government employees from using their "official authority or influence for the purpose of interfering with or affecting the result of an election."
I am not persuaded by the government's contention that the Hatch Act is not applicable to initiative and referenda elections, since such an interpretation is inconsistent with the plain wording of the statute. While Section 7326 of the Hatch Act exempts initiative and referenda elections from Section 7324(a)(2)'s prohibition against District of Columbia employees taking "an active part in political management or in political campaigns," it does not modify Section 7324(a)(1)'s prohibition against District of Columbia employees' use of "official authority or influence for the purpose of interfering with or affecting the result of an election," which is what occurred here. No provision in the Hatch Act exempts initiative and referenda elections from Section 7324(a)(1)'s prohibition. Therefore, it is clear that Congress intended Section 7324(a)(1)'s prohibitions to apply to initiative elections.
Most importantly, the government's use of public funds to influence the outcome of an initiative election is not a proper municipal function since such expenditures infringe upon the First Amendment rights of District of Columbia voters and violate the fundamental tenet that the government must remain neutral in the political process. As the court observed in Mountain States Legal Foundation v Denver School District 1, 459 F.Supp 357 (D. Colo. 1978), a case directly on point with regard to the instant case:
Id., at 360 (emphasis added). I therefore also hold that the government's expenditures challenged by plaintiffs are ultra vires.
For the foregoing reasons, it appears after due consideration that there is no genuine issue as to any material fact with respect to the issue of liability, and that Plaintiffs are entitled to a judgment as a matter of law. Therefore, it is hereby Declared:
(1) that plaintiffs have standing as District of Columbia voters to challenge the District of Columbia government's expenditures of public funds and use of District of Columbia employees to prepare one-sided electioneering material urging voters to support or oppose an initiative election; and
(2) that this case is not mooted by the passing of the initiative election because the the governmental action challenged by plaintiffs falls within the class of controversies that is capable of repetitious yet evading review; and
(3) that the expenditure of public funds or use of District of Columbia employees to prepare one-sided electioneering material urging voters to support or oppose an initiative, referendum, or other ballot measure violates the rights of District of Columbia voters under the First and Fifth Amendments to the U.S. Constitution; and
(4) that the government's expenditures of public funds or use of District of Columbia employees to prepare electioneering material designed to influence the outcome of Initiative No. 17 were illegal under District of Columbia law because no statute or appropriations act authorized such expenditures.
In view of the above, it is hereby Ordered:
(1) Plaintiffs' Motion for Partial Summary Judgment be and is in all things hereby granted; and
(2) The government's Motion to Dismiss or, in the Alternative, for Summary Judgment is hereby denied; and
(3) that Defendants, the District of Columbia government and David E. Rivers, Director of the D.C. Department of Human Services, are hereby enjoined and prohibited from expending public funds or using District of Columbia employees to prepare or distribute materials urging voters to support or oppose any initiative, referendum, or other ballot measure.
(6) that the parties confer and attempt to reach agreement on any petition for attorney's fees and costs submitted by plaintiffs pursuant to DCDC Civil Rule 215; and
(7) that a status conference be held on 1:15 p.m., November 12, 1986, pursuant to DCDC Civil Rule 215 of this Court requiring a post judgment conference for
l. Plaintiffs' original complaint stated a claim for restitution of any such illegally expended funds to the D.C. treasury. Plaintiffs withdrew their request for restitutionary relief at the close of oral argument and hence, this decision will not address plaintiffs' entitlement, if any, to such relief.
2. I also hold that plaintiffs have standing as District of Columbia taxpayers to raise their pendent claim under District of Columbia law that the government's electioneering expenditures are ultra vires. cf. D. C. Federation of Civic Associations v Airis, 275 F.Supp. 533, 536 (D.D.C. (1967).
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