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January 12 2016

New State Law Impacts Local Ballot Questions

By: Mark E. Nettleton

On January 5, 2016, Governor Snyder signed new legislation that impacts local governments with respect to local ballot questions. 

Act 269 of the Public Acts of Michigan of 2015 (“Act 269”) amended Michigan’s Campaign Finance Act, Act 388 of the Public Acts of Michigan of 1976 (“Act 388”) and included language in Section 57(3) of Act 388 to prohibit a public body, or a person acting for a public body, from using “public funds or resources” for a “communication” that “references a local ballot question” and is “targeted to the relevant electorate where the local ballot question appears on the ballot” during the 60 days prior to the election on that ballot proposal.  A violation of the provision by an individual can result in a misdemeanor conviction and a maximum $1,000 fine.  If a public body violates the provision, the public body may be fined up to $20,000.  Act 269 was given immediate effect and, therefore, is now applicable to local governments.

The text of Section 57(3) as amended by Act 269 is as follows:

(3) Except for an election official in the performance of his or her duties under the Michigan election law, 1954 PA 116, MCL 168.1 to 168.992, a public body, or a person acting for a public body, shall not, during the period 60 days before an election in which a local ballot question appears on a ballot, use public funds or resources for a communication by means of radio, television, mass mailing, or prerecorded telephone message if that communication references a local ballot question and is targeted to the relevant electorate where the local ballot question appears on the ballot.

Prior to the adoption of Act 269, a municipality could spend public funds on preparing and disseminating an objectively worded fact statement on a proposed local ballot proposal.  For example, a township could spend township funds to prepare, copy and mail a fact sheet on a proposed township fire millage to township voters.  The sheet could not urge electors to “Vote Yes” or “Support the Millage” or “Vote in Favor of the Fire Department,” but it could factually describe the need and impact that the millage, if adopted or defeated, would have on the department, for example.  With the enactment of Act 269, such a statement or information sheet, if mailed to electors within 60 days of the election, would violate Michigan campaign finance laws. 

To be clear, this is not a prohibition on local elected officials from expressing their personal opinion on a local ballot proposal.  This does restrict, however, the ability of local government from using public funds to widely disseminate factual information about a ballot proposal in the 60 days prior to the election on the proposal.  This would include spending funds to create an objectively worded fact sheet and mailing such a sheet or “advertising” on the radio or television or by prerecorded phone message.  It is unclear from the statute, but appears that it would be acceptable for a public body to post an objectively worded fact statement on a local ballot proposal on the municipality’s website or have the information printed and sitting out at the township hall.  

In signing the legislation, the Governor indicated he may ask the Legislature to adopt legislation to clear up inconsistencies in Act 269 or clarify the intent of certain provisions, including perhaps the language of Section 57(3).  However, the Governor, in his letter explaining why he signed the legislation, indicated that such clarifying legislation may be limited and only permit the expenditure of public funds to inform local voters of (1) the date of the election on the local ballot proposal, and (2) the text of the proposal. If your community is considering a local ballot proposal for a millage or other local matters, please be aware of this change. 

If you have any questions regarding this new law, please feel free to call or email Mark Nettleton or any other Mika Meyers local government attorney.