Public officials and staff must not use any public resources in a way that would influence an election, according to the SC Ethics, Government Accountability, and Campaign Reform Act.
The law has two provisions that address this issue:
- Elections – Under SC Code Section 8-13-1346(A), a “person may not use or authorize the use of public funds, property, or time to influence the outcome of an election.” This covers all general elections, as well as special, primary and runoff elections. It also applies to all conventions and caucuses that a political party holds to nominate a candidate.
- Ballot measures – A ballot measure can include any referendum, proposition, or measure otherwise submitted to voters. SC Code Section 8-13-1346(C) prohibits any governmental entity from using “public funds, property, or time in an attempt to influence the outcome of a ballot measure.”
Actions to avoid
One clear way to follow the law is for incumbent mayors and councilmembers to not use any official municipal letterhead, merchandise or facilities when they campaign for reelection.
The law also extends well beyond this application. For example, municipalities must not use any public funds, property or time to endorse or support referenda on any issue, whether it be a proposed capital project sales tax, bond issue or a change in the form of government.
The SC State Ethics Commission has strictly read the prohibition on using public funds, property or time. In an opinion issued July 20, 2005, it found that “public employees who place campaign signs on school grounds, in their car windows or on their cars parked on school grounds during school hours are using public property to influence the outcome of an election.”
Another opinion from July 19, 2018, opined that “a Council Member’s expression of a personal opinion on a ballot measure during a Council meeting constitutes a use of public resources.”
Allowable private actions
Despite these prohibitions, elected officials and municipal staff do not lose their First Amendment right to freedom of speech because of their public service. Another SC State Ethics Commission opinion from May 25, 2018, listed specific actions that would not violate the law, so long as the official or employee is acting in a private capacity and without using public time or resources:
- “writing letters to the editor of a local newspaper advocating for or against a referendum;”
- “making public speeches before private groups (such as Rotary Clubs) advocating for or against a referendum;”
- “organizing a public meeting on his or her own time and own expense to discuss the pros and cons of a referendum without any restrictions on what can be discussed at this meeting; or”
- “(meeting to discuss or promote the referendum in a public building such as a public library, so long as the official's position is not used to access the public building, and the building is available on equal terms and at the same cost to all members of the general public.”
Prohibitions for federal and state election events
State Ethics Commission staff informed the Municipal Association of SC that these provisions of state law apply to all elections, not just local races. For example, if a municipality were to provide free public safety support or other “funds, property, or time” in connection with a federal or state campaign event, it would likely be found to have violated the law.
Especially in general election years, municipalities can expect to be asked to host or allow campaign events for federal and state elected offices. In hosting or permitting those events, municipalities should take great care to avoid using public funds, property or time to support or oppose any candidate or party in the election.