As I noted yesterday, the charter school amendment battle has turned into a legal minefield, with charges and counter charges flying back and forth.
Olens was approached by pro-amendment interests, who haven’t been identified by their attorney Glenn Delk. They were aghast at the public opposition to the amendment by GOP school chief John Barge and by many school boards around the state. They thought it crossed a line.
Olens agreed. Barge took down a link on the DOE web site to his opposition statement.
Then, Olens sent Barge a letter this week saying that school boards cannot use district resources or funds to lobby against the amendment, maintaining that school boards “do not have the legal authority to expend funds or other resources to advocate or oppose the ratification of a constitutional amendment by the voters. They may not do this directly or indirectly through associations to which they may belong.”
But Atlanta attorney Emmet Bondurant says Olens — who cited a Bondurant case in his letter — cannot stop elected officials from opposing the amendment.
“While the AG is right that a public agency (including the governor and the Legislature) should not use public funds to try to influence the outcome of a referendum, it does not follow that John Barge, as the elected State School Superintendent, or local School Superintendents or members of local School Boards are also prohibited from speaking out and advocating the passage or the defeat of a referendum,” says Bondurant, named one of the top 10 trial lawyers in the United States by the National Law Journal.
I have been inundated with emails on this issue today, with readers raising questions whether, for example, the Georgia Charter Schools Association, a trade group that receives membership dues from public charter schools, is also banned from seeking public support for the amendment. The association is a leading proponent of the amendment and has had a high profile in the campaign to pass it.
And readers are asking whether charter schools can still bring their staffs and students to the Capitol for pro amendment rallies and press conferences, which entails public funds since the schools are supported by taxes, as are all public schools
I put these questions to the AG’s Office in an email today and received this reply from Senior Assistant Attorney General Stefan Ritter.
Our letter laid out a broad legal principle: local government entities of any sort cannot use the taxpayers’ resources to tell the taxpayers how to vote – regardless of whether they’re lobbying for a yes or a no vote.
Lobbying the General Assembly is a different matter: the Georgia Supreme Court (and our letter) has clearly distinguished between using public resources to lobby the General Assembly, which is permissible, and using public resources to lobby voters on a referendum, which is prohibited.
Again, this is a principle that applies equally regardless of which side one is one. You can’t expend public resources to lobby voters to vote yes or to vote no.
Let me note, though, our letter did not discuss any specific applications of this principle. Whether public resources have been expended in lobbying the voters is a fact-specific question, and our client (Ga DOE) has not requested that we review any specific factual circumstances to determine whether the broad (and long-standing) legal principle our letter outlines has been violated.
In the context of associations, our letter made clear that government entities cannot lobby voters indirectly through associations that are essentially extensions of the government entities. Whether a particular association is essentially an extension of a government entity is a fact-specific question that we can’t answer in the abstract.
I hope this is helpful on your question.
I also put the question to some attorneys who specialize in education law. Among the responses: “A main focus of the Olens’ letter is its emphasis on the constitutional and statutory prohibitions on the use of school funds for other than educational purposes. Yet, this prohibition does not solely apply to local school boards and would certainly appear to be applicable to use of public funds by charter schools as well. In other words, if a local school system may not commit any public funds to advocating for or against passage of a constitutional amendment, then that prohibition would apply equally to a publicly funded charter school.”
–From Maureen Downey, for the AJC Get Schooled blog