Education Law Notes  

As the calendar turns to May, for boards of education across Connecticut that means once again navigating one of the more complex intersections of education policy and election law – referendum advocacy.  Under Connecticut General Statutes § 9-369b boards of education (and other municipal entities) are prohibited from expending funds when a referendum is “pending.” While the theory behind § 9-369b is simple enough – taxpayers should not be compelled to support political speech that they may not be supportive of – applying § 9-369b in practice can be quite complex.

The Statutory Framework: Conn. Gen. Stat. § 9-369b

At its core, Connecticut General Statutes § 9-369b (“Section 9-369b”) prohibits the expenditure of public funds to influence voters on a pending referendum. The statute specifically provides that “[e]xcept as [permitted by law], no expenditure of state or municipal funds shall be made to influence any person to vote for approval or disapproval of any such proposal or question or to otherwise influence or aid the success or defeat of any such referendum.” Section § 9-369b(4).

Enforcement falls to the State Election Enforcement Commission (SEEC), which has the authority to investigate claimed violations and impose civil penalties of up to twice the amount of any improper expenditure or one thousand dollars, whichever is greater.

The SEEC’s Three-Part Test

When the SEEC evaluates a complaint alleging that a communication was made in violation of Section 9-369b, it applies a three-part test:

• Was the communication made while a referendum was pending?
• Does the communication advocate?
• Was the communication made with public funds?

If the answer to all three questions is “yes,” the communication violates Section 9-369b. Conversely, if the answer to any of the three questions is no – the communication at issue does not violate Section 9-369b – although it could still run afoul of other legal requirements (as explained in more detail below).

When Is a Referendum “Pending”?

The prohibition on the use of public funds for advocacy only applies when a referendum is “pending.” The SEEC holds that a referendum is pending “when the last legal condition has been satisfied to ensure that the referendum will take place.” This is a critical threshold—before it is reached, districts have significantly more latitude in their communications.

Several common scenarios can trigger “pending” status:

• A town meeting or regional district annual meeting adjourns a proposed budget to referendum;
• The date for referendum is set by specific charter language following adjournment on a proposed budget by a board finance;
• Special statutory situations mandate that a referendum be held on a specific question, such as the formation or dissolution of a regional school district.

It is essential that districts understand the specific triggering event in their municipality. A budget is not “pending” simply because it is being discussed or because a referendum is anticipated—the last legal condition must have been satisfied for the referendum to occur on a defined question. In the case of town meetings for local boards of education for instance (the rule for regional boards of education is different), while a referendum date may be set prior to the town meeting if the town meeting can amend the proposed budget and then ultimately votes to adjourn the budget to referendum the SEEC has held that the referendum is “pending” only when the town meeting adjourns to referendum even if the date for referendum was actually noticed beforehand.  In the Matter of a Complaint by Christine Campbell, Thompson, SEEC File No. 2017-019. 

What Counts as “Advocacy”?

The second prong of the SEEC’s test asks whether a communication “advocates” for a particular outcome. Advocacy in this context is not limited to explicit calls to vote “yes” or “no” on the budget. The SEEC applies a reasonable-person standard and looks at the entire communication in context.

As the SEEC has stated “[C]ommunications which urge a particular result, either by express wording of advocacy or when considered as a whole, would make the ordinary reasonable person believe that a particular result is urged, constitute advocacy.” In the Matter of a Complaint by Francesco M. G. Carolozzi, et al., Farmington, SEEC File No. 2021-132. Accordingly, the SEEC considers “the entire communication and considers its style, tenor and timing.” In the Matter of a Complaint by Mary V. Gadbois, East Lyme, SEEC File No. 2010-123.

Importantly, implied advocacy is just as problematic as express advocacy. In In the Matter of a Complaint by Christine Campbell, Thompson, SEEC File No. 2017-020 for instance, the SEEC found that “[s]tated threats of program cuts and dire consequences of failing to approve the referendum, as well as statements of need and justification . . . constitute implied advocacy.”

What Counts as “Public Funds”?

Section 9-369b is not limited to traditional, out-of-pocket expenditures like newspaper advertisements or printed flyers. The statute also prohibits “in-kind” expenditures of public resources. An in-kind expenditure occurs whenever district resources -- whether tangible or intangible -- are used to support advocacy. Examples include:

• Use of district supplies and equipment;
• Use of district personnel during work hours;
• Preferred use of district space or facilities in contravention of district policy or practice; and
• Use of the district’s website, Facebook pages, parent email accounts, and other electronic communication platforms.

These days, the last category is where districts may face their greatest exposure. The SEEC has held in a number of cases that posting to a website or social media page is an expenditure of municipal funds and therefore can violate Section 9-369a.  See, In the Matter of William E. Marsh, Windsor Locks, SEEC File No. 2022-014A. This is because a message supporting referendum passage posted on the district’s website is hosted on a server paid for with public funds and is likely managed by a district employee on district time. That constitutes an in-kind expenditure of public funds. The same analysis applies to Facebook pages, X (formerly Twitter) accounts, Instagram profiles, and email accounts that are hosted or managed by the district or linked through the district’s website.

Final Takeaways

Budget season is stressful enough without adding election law exposure to the mix. The good news is that the rules under Section 9-369b, while nuanced, are knowable and navigable. Districts that plan ahead, train their staff, and think carefully about the timing and content of their communications can fulfill their mission of informing the public without running afoul of the statute. To this end,  it is worth noting that the SEEC has a good resource on its website entitled -- Prohibition on Expenditure of Public Funds Relating to Referenda (ct.gov) – that outlines what is and is not allowed in connection with Section 9-369b.

One final point to note is that whether a particular communication does or does not violate the referendum advocacy rules of Section 9-369b is not necessarily the end of the story. Even if a communication is permissible under Section 9-369b it is important to consider board of education bylaws regarding communications on behalf of the board and/or bylaws designating a board spokesperson to ensure that such bylaws are being adhered to. Also, if access to a particular platform – i.e. parent email accounts – is granted to a pro-budget outside group there may be issues denying another group access to the same platform on the grounds that such a denial would be impermissible viewpoint discrimination within a “public forum” for the expression of speech. In other words, if some outside groups are allowed access to publicly funded or supported platforms a board of education will be hard pressed denying another group access to the same platform even if a referendum is not pending at the time.

If you have questions about a specific communication, a planned social media post, or the timing of your district’s referendum, consult with your board’s attorney before pressing “send.” A few minutes of legal review is always less costly than an SEEC investigation.