January 15, 2004
Opinion No.
2004-02
Valerie Jung
President, Pure
Eloquence
Media Consultant to
elect Myers for Sheriff
13210 Farley
Street
Overland Park, Kansas
66213
Dear Ms. Jung:
This opinion is in
response to your letter of December 22, 2003, in which you request
an opinion from the Kansas Governmental Ethics Commission
concerning the Campaign Finance Act (K.S.A. 25-4142 et
seq.). We
note at the outset that the Commission's jurisdiction concerning
your question is limited to the application of K.S.A. 25-4142 et
seq. Thus,
whether some other statutory system, common law theory or agency
rule or regulation applies to your inquiry is
not covered by this opinion.
FACTUAL
STATEMENT:
We understand that
you request this opinion in your capacity as President of Pure
Eloquence and as the media consultant to elect Myers for
Sheriff. You have
questions regarding the application of the Kansas Campaign Finance
Act to certain campaign literature.
QUESTIONS:
II
Does the Kansas Campaign Finance Act prohibit the use of the term
Are-elect
Sheriff Myers@
on campaign literature if Sheriff Myers was not
originally elected?
II
May a candidate post on his campaign website press releases written
by the Sheriff=s
Office and photos of the Sheriff that were taken by the
Sheriff=s
office?
3.
Do the photos and press releases posted on the website mentioned in
question two above require a Apaid
for by@
disclaimer?
OPINION:
In your first
question, you ask whether the Kansas Campaign Finance Act prohibits
the use of the term Are-elect
Sheriff Myers@
on campaign literature if Sheriff Myers was not
originally elected. This question requires us to
determine whether the Campaign Finance Act prohibits the use of
advertising which might be considered
misleading. We have
reviewed the Kansas Campaign Finance Act (K.S.A. 25-4142 et seq.) in its entirety and nothing in the Act addresses
the use of misleading advertising.
In your second
question, you ask whether a candidate may post on his campaign
website press releases written by the Sheriff=s
office and photos of the Sheriff that were taken by the
Sheriff=s
office. K.S.A. 25-4169a
applies to this question. It states in pertinent part:
A(a) No officer or employee of the state of Kansas,
[or] any county . . . shall use or authorize the use of public
funds or public vehicles, machinery, equipment or supplies of any
such governmental agency or the time of any officer or employee of
any such governmental agency, for which the officer or employee is
compensated by such governmental agency, to expressly advocate the
nomination, election or defeat of a clearly identified candidate to
state office or local office.@
This question calls
for us to determine whether the press releases prepared by the
Sheriff=s
office and the photos taken by the Sheriff=s
office are Apublic
funds or public vehicles, machinery, equipment or supplies.@
If the photos were taken, or the press
releases were written, in the ordinary course of business of the
sheriff=s
office, the photos or press releases are not Apublic
funds or public vehicles, machinery, equipment or supplies.@ Therefore, the use of such
photos and press releases in campaign advertising would not violate
K.S.A. 25-4169a.
Finally, you question
whether the photos and press releases posted on the website
mentioned above require a Apaid
for by@
disclaimer pursuant to K.S.A. 25-4156, which states in pertinent
part:
A(b)
(1) Corrupt political advertising of a state or local office
is:
.
. .
A(C) publishing or causing to be published any
brochure, flier or other political fact sheet which expressly
advocates the nomination, election or defeat of a clearly
identified candidate for a state or local office, unless such
matter is followed by the name of the chairperson or treasurer of
the political or other organization sponsoring the same or the name
of the individual who is responsible therefor."
The initial question
that must be answered is whether
material posted on a website has been Apublished.@ The American Heritage
Dictionary defines the word Apublish@
as: A1)
To prepare and issue (printed material)
for public distribution or sale. 2) To bring to
the public attention; announce.@ The
American Heritage Dictionary of the English Language, Fourth
Edition Copyright 8
2000 by Houghton Mifflin Company. The Commission now determines that
information posted on a website has been
brought to the public=s
attention and therefore, has been published. Consequently, such material
requires a Apaid
for by@
disclaimer if the material expressly advocates the nomination,
election or defeat of a clearly identified candidate for a state or
local office.
The definition of
express advocacy is found in K.S.A. 25-4143(h)
which states:
AExpressly
advocate the nomination, election or
defeat of a clearly identified candidate" means any communication
which uses phrases including, but not limited to:
(1) AVote
for the secretary of state@;
(2) Are-elect your senator@;
(3) Asupport
the democratic nominee@;
(4) Acast
your ballot for the republican challenger for governor@;
(5) ASmith
for senate@;
(6) ABob
Jones in '98";
(7) Avote
against Old Hickory@;
(8) Adefeat@
accompanied by a picture of one or more candidates; or
(9) ASmith's the one.@
Therefore, if the
press release or the photo is accompanied by language which
expressly advocates the nomination, election or defeat of a clearly
identified candidate, it must be followed by the name of the
chairperson or treasurer of the political or other organization
sponsoring the same or the name of the individual who is
responsible therefor. See K.A.R. 19-20-4 and Commission
Opinion 2000-36 for clarification of what the "paid for by" must
contain. It should be
noted that pursuant to K.S.A. 25-4156(b)(1)(C), individuals making
expenditures in an aggregate amount of less than $2,500 within a
calendar year who publish brochures, fliers or political fact
sheets need not post a Apaid
for by@
disclosure.
Sincerely,
Daniel Sevart,
Chairman
By Direction of the
Commission
DS:VMG:dlw
