Business Retention and Development Committee Agenda and Packet 2010 08 02

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Heather A. Balser, Deputy City Manager June 28, 2010 Page 2 of 4 The following is a general summary of activities permitted by Section 117(1 )(a) and (b); other uses of public funds or resources related to urging a position on a ballot issue are prohibited by the FCPA. The City Council as a whole may: . Adopt a resolution supporting or opposing a ballot issue.3 The City as an entity can: . Report the passage of or distribute any resolution supporting or opposing a ballot issue through normal distribution methods (but not through extra distribution methods). . Expend money to dispense a factual summary regarding a ballot issue that will appear on the ballot of the City. This summary must include arguments both for and against the proposal, but cannot include a conclusion or opinion in favor or against any particular Issue. . Allow public groups to use its facilities, including proponents and opponents of ballot issues, for a debate, election forum or similar activity if such uses are allowed and so long as the facilities are made available on an evenhanded basis to parties on any side of the issue. The City is not required to allow such use, but must allow evenhanded use if it allows any at all. Allowing such use is not without risk, and care must be taken to ensure equal access and fairness. The City Council Members individually may: . Respond to unsolicited questions about a ballot issue. . Express a personal opinion on any issue.4 The FCP A does provide that a member of a City Council may expend not more than $50 of public moneys in the form of letters, telephone calls, or other activities incidental to expressing his or her opinion on an election issue; however. this should be viewed not as an affirmative grant of Dower. but rather as a "safe harbor" for cases involving unintended technical violations. . Expend personal funds and use personal time for electioneering, subject to applicable campaign laws. The expenditure of personal money and resources to support or oppose a ballot issue may result in the formation of an "issue committee" under Colorado law.5 ) Although not addressed by the FCPA, the passage of the resolution presumably contemplates stafTwork to research and prepare the resolution. This time should be specifically tracked and kept to the minimum amount necessary. Additionally, it should be noted that work that is not on a resolution or factual summary, or otherwise permitted, wiII be deemed a prohibited "in kind" contribution. See Coffman v. Colorado Common Cause, 102 P.3d 999, 1012-1013 (Colo. 2004) (stafT time to prepare press releases that urged defeat of Amendment 23, which time was directed by treasurer and paid for by state, was impennissible contribution in kind). 4 However, as noted in Colorado Cause v. Coffman, 85 P.3d 551 (Colo. App. 2003), the FCPA does not authorize the cxpendilure of public funds for the expression of such personal opinions. S An issue committee is defined as "any person, other than a natural person, or any group of two or more persons, including natural persons... [t]hat has a major purpose of supporting or opposing any ballot issue or ballot question" or "[t]hat has accepted or made contributions or expenditures in excess of two hundred dollars to support or oppose any ballot issue or ballot question." Colo. Canst. Art. XXVIII, Sec. 2(10)(.)(11).