Interpretative Opinion 2016-01
June 17, 2016
Beverly Perry, Senior Advisor to the Mayor
1350 Pennsylvania Avenue, N.W., Suite 324
Washington, D.C. 20004
Betsy Cavendish, General Counsel
Executive Office of the Mayor
1350 Pennsylvania Avenue, N.W., Suite 327
Washington, DC 20004
Dear Ms. Perry and Ms. Cavendish:
This responds to your letter dated June 3, 2016, in which you requested an Interpretative Opinion regarding Activities Relating to an Advisory Ballot Referendum.
You state that the New Columbia Statehood Commission, co-chaired by the Mayor, seeks to re-invigorate efforts for statehood in the District of Columbia. You further state that numerous activities including, the drafting of a constitution, defining the boundaries of the new state, outlining the advantages of statehood and the injustices of the lack of statehood, securing support from the Council for statehood and the draft constitution, are planned to engage public support for this effort. Your inquiry, therefore, concerns whether such statehood activities related to an Advisory Ballot Referendum would violate any provisions of the District of Columbia Campaign Finance Act.
D.C. Official Code §1-1163.36(a) states that: “No resources of the District of Columbia government, including, the expenditure of funds, the personal services of employees during their hours of work, and nonpersonal services, including supplies, materials, equipment, office space, facilities, telephones and other utilities, shall be used to support or oppose any candidate for elected office, whether partisan or nonpartisan, or to support or oppose any initiative, referendum, or recall measure, including a charter amendment referendum conducted in accordance with §1-203.03. ”
While the Office of Campaign Finance is vested with the authority to enforce violations of the District of Columbia Campaign Finance Act, an advisory referendum which merely poses a question to the citizens regarding whether to proceed with a matter would not be regulated by the Act because the question does not encompass supporting or opposing any candidate for elected office, supporting or opposing an initiative, referendum or recall measure envisioned by the Initiative, Referendum, and Recall Charter Amendments Act of 1977, or a charter amendment referendum. See the Initiative, Referendum, and Recall Charter Amendments Act of 1977, effective March 10, 1978 (D.C. Law 2-46; D.C. Official Code §1-204.101(b).
As you know, the charter amendment referendum procedure is governed by D.C. Official Code §1-203.03, whereas the procedure for the presentation of an advisory referendum vote on a proposition by the Council is regulated by D.C. Official Code §1-204.12(b).
Moreover, the activities associated with your proposed advisory referendum appear to be consistent with the purposes for which the Commission was established which include to “educate regarding, advocate for, promote, and advance the proposition of statehood and voting rights for the District of Columbia to District residents and citizens of the 50 states.” Further, the Commission is authorized, pursuant to D.C. Official Code §1-129.31, to solicit contributions, both financial and in-kind, from public and private sources to be deposited in the New Columbia Statehood Fund, established pursuant to §1-129.32, and used for the purposes of promoting statehood and voting rights. The administration of the Fund, and the audit of its records and expenses is governed by D.C. Official Code §1-129.32.
Based upon the information you have provided, it does not appear that any of the activities that the New Columbia Statehood Commission intends to undertake in connection with an Advisory Ballot Referendum are within the scope of the applicable provisions of the District of Columbia Campaign Finance Act.
As noted by the Board of Ethics and Government Accountability (BEGA) in its Advisory Opinion of the Director dated June 14, 2016, the enactment of D.C. Official Code §1-1163.36 evolved from the affirmation by the Board of Elections of the Office of Campaign Finance Order concluding that a then Mayor’s use of District government resources in connection with a press conference held to support a proposed Charter amendment created the appearance of adversely affecting the confidence of the public in the integrity of government, thereby violating the then existing Standards of Conduct. See Williams v. D.C. Office of Campaign Finance, Admin. Hearing No. 00-025, Memo op.at1 (September 22, 2000).
Therefore, it was well advised to also seek a review by BEGA of the intended activities, in light of their responsibilities to administer and enforce of the District of Columbia Code of Ethics and the Local Hatch Act.
The foregoing is an Interpretative Opinion of the Director of the Office of Campaign Finance. Pursuant to D.C. Official Code §1-1163.06, you are entitled to request an Advisory Opinion from the Board of Elections on this transaction or activity.
Should you have any additional questions, please contact William O. SanFord, General Counsel, at (202) 671-0549.