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Serving Northern St. Louis County, Minnesota

The right to promote

Action needed to address another botched judicial effort in Minnesota

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Can school districts spend tens of thousands, or even millions, of taxpayer dollars on Vote Yes campaigns intended to mislead voters about the costs and benefits of referenda? According to State Auditor Rebecca Otto, the answer is apparently yes, so long as they file a campaign finance report when it’s all over.

That was the astonishing message that Otto’s legal counsel, Mark Kerr, delivered to members of the St. Louis County School Board on Tuesday, in response to an audit request by citizens of the school district filed with her office nearly four and a half years ago.

Citizens had alleged way back then that the school district had used tax dollars to improperly promote passage of its 2009 bond referendum, and Otto concurred with previous court rulings on that subject. She cited the findings of a three-judge panel of the Office of Administrative Hearings, that found that the St. Louis County School District had “promoted passage of the referendum with publications that ‘did not present a fair and balanced representation,’ but instead painted a ‘dire picture’ of the results of a no vote, that ‘unfairly presented’ the true cost of approval, that stressed only exaggerated benefits of a yes vote, and that described ‘only the most negative possibilities of a no vote.’”

But misleading campaigns such as this now have at least a yellow light from the state auditor, so long as a school district files a spending report.

For decades, both in Minnesota and in states across the country, courts have consistently found that school districts and other public bodies don’t have the legal authority to spend tax dollars to promote one side of a ballot measure. A 1966 Minnesota Attorney General’s opinion confirmed that, as did the Minnesota Court of Appeals in a 2011 decision based on the case of Abrahamson v. St. Louis County Schools. The Court of Appeals, in that case stated expressly: “We therefore hold 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 appeals court got it right, and the Supreme Court never took up the issue in its review of the Abrahamson case, leaving the Court of Appeals finding intact.

But this longstanding and apparently settled body of law was overturned, according to Kerr, by highly ambiguous language nestled deep in the OAH’s ruling in the Abrahamson case. He cited a section of the ruling where the judges wrote as follows: “There is nothing improper about a school district supporting the passage of a bonding question. Indeed, by passing a resolution to place a referendum on the ballot, a school board is acknowledging that its board seeks, and the board believes, that such additional taxpayer funding is necessary…”

No one, of course, ever suggested that school boards are prohibited from supporting passage of a referendum. They have to support them to get such measures on the ballot. School board members can speak out publicly in favor of ballot measures, serve on Vote Yes committees, or write letters to the editor to their hearts’ content. But for more than half a century in Minnesota and around the country, schools have not been able to campaign using tax dollars to finance those promotional efforts.

The meaning of the OAH’s language is unclear, but it’s that lack of clarity that is creating uncertainty on this issue. While the auditor’s office is suggesting that promotion is okay, as long as spending is reported, the Minnesota School Boards Association is wisely counseling districts to leave promotion to independent “Vote Yes” committees. The MSBA is well aware that this issue is likely headed for more litigation given the unfortunate language in the OAH decision.

But why wait for litigation? Far better that the Legislature act to fix this problem now. There is little doubt that the overwhelming public response to the question that led this editorial would be a resounding “NO.” The very idea that a public body could use tax dollars— money taken from our own pockets— to mislead us to vote for anything shocks the conscience. Which is why courts around the country have consistently found such actions improper.

As it stands today, a three-judge panel at the OAH has, probably by accident, left the barn door wide open for school districts to run roughshod over the taxpayers like we’ve never seen before. If the Legislature wants to strip taxpayers of what remaining checks they have on school districts, they should say so. If not, they should clarify, through statute, that school districts can’t use our money to mislead us on issues of public import. Without a clear red line for school districts, the taxpayers are in deep, deep trouble.