More campaign finance stuff.. Spending tax dollars to tell people we need to keep a tax?

I caught this one in the No on 8 committee report. The No on 8 people are reporting that they received $45,766 from the South Dakota Association of County Commissioners.

No SDACC PAC, but the SDACC itself. Except I'm wondering how in the heck they did that. Especially when their donation constitutes over half of the group's receipts.

From a check of the Secretary of State's PAC list and PAC reports, there's no political action committee set up for the group where individual members can donate to a cause of their choice, unless this report is yet to be filed. Why is this important?

For starters, the South Dakota Association of County Commissioners is an entity authorized by law and paid for by tax dollars:
7-7-28 Formation of association of county commissioners and elected officials--Powers of association--Appropriations for dues.
The county commissioners and elected officials of any county may join with the commissioners and elected officials of other counties in formation of an association of county commissioners and elected officials of this state for the purpose of securing concerted action among the counties in behalf of such matters, measures and county affairs as the associations deem to be beneficial to and in the common interest of the counties. Such associations may hold meetings for the discussion and consideration of matters as affect the welfare of the counties.
The board of county commissioners may annually appropriate funds for the payment of reasonable annual dues in any such association.
The group is authorized by law, and their dues are paid for out of tax revenues. That means unless they've formed a PAC and paid for it out of their pockets, I question whether there is a legal way they can can cut an association check for a ballot issue.

Who says they can't? The attorney general for one. Check out Attorney General opinion 88-28:
You have requested an official opinion from this office on the following questions:

1. Can a municipality, county, or school district expend public funds to advocate a position on an election measure?

2. Can a municipality, county, or school district expend public funds to provide information as to the impact of an election measure on the respective entity?


Although the courts of this State have not yet addressed the question, a review of court decisions in other jurisdictions leads me to conclude that municipalities, counties, and school districts may not expend public monies for purposes of promoting or advocating a particular position on an election measure.

... lots of case citations you can read in the opinion for yourself ...

Upon review of the South Dakota statutes I can find no statutory provisions that may in any manner be construed as explicitly giving a division of local government the authority to expend public monies for purposes of influencing election results. In fact, any claim that the expenditures are impliedly authorized under statute would be unreasonable. Accordingly, the answer to Question No. 1 is "no."


On the other hand, the use of the public funds by local governments solely for purposes of informing or educating the voters on an election issue may be proper depending on the circumstances.

... lots of case citations you can read in the opinion for yourself ...

Whether such expenditures are impliedly authorized requires close review of the initiated or referred measure and a review of those powers expressly granted under statute. The expenditures would have to be judged on an individual, case-by-case basis. Certainly, local governments may not expend public funds to provide information on all election issues, however, if passage or rejection of the ballot measure would significantly affect the ability of the municipality, county, or school district to carry out its express powers, the use of public funds for strictly informational purposes may be authorized.

Assuming that the use of public funds for such purpose is authorized, to avoid any claim of misappropriation the governing board involved must be careful to ensure that the published information constitutes a fair presentation of the relevant facts on both sides of the election issue. Along such lines, it would not be sufficient to merely refrain from exhorting a yes or no vote. Other language or statements prepared and designed to influence public opinion would also be improper. Any determination of the propriety or impropriety of the publication and ultimately the expenditure would turn on a consideration of various factors, including the style and tenor as well as the timing of the publication. Stanson v. Mott, supra at 12.

Respectfully submitted,
Roger A. Tellinghuisen
Attorney General
"I can find no statutory provisions that may in any manner be construed as explicitly giving a division of local government the authority to expend public monies for purposes of influencing election results." This AG opinion would seem to imply that on an individual basis they can't do this. And this is coming from Tellinghuisen, whom I considered taking a more laissez faire position on election issues.

It's why the Pennington County Commission had to play it safe when they were promoting a drink tax.

But with the SDACC therein lies another question - with tax dollars being paid to them in the form of it's dues - does passing them through this organization suddenly make it legal? Especially in light of the fact that the organization was created (or at least enabled) through legislation?

If the case is "yes" - what is there to stop the organization from raising dues to build a taxpayer funded warchest for any measure they choose, such as the drink tax? In effect, they'd be spending property tax and wheel tax revenues to convince people they need another tax.

Because in this case, it sure looks like they could be spending tax revenues to convince people to keep being taxed. And I don't know that their taxpayers would think about that.


PP said…
And Bonnie goes away. Because it amuses me.
Anonymous said…
PP, you've possibly exposed what could be the biggest story of this election cycle! This is tax dollars being put to work on a ballot issue! this is wrong--regardless of one's view of measure 8
Anonymous said…
How about school district tax dollars being used to sue taxpayers???
Anonymous said…
Well, so what! The bottom line is that the consequences for this type of infraction are just about nonexistent! Everyone knows that! You may get a slap on the hand or a reprimand, but so what! The outcome is worth the cost.

Everyone knows that politics is “win at all costs, but above all win”! Been that way for many years and will be that way for many years to come!

Have any of you ever heard of any type of consequence for political committees or politicians breaking campaign laws? I can’t seem to remember anything like that happening. Everything just seems to get pushed under the rug after the election. Just seems to happen that way.

So, do what you gotta do, as long as you win!

It is the American way!
Anonymous said…
SDACC needs to answer to dumping in 46K, how about being accountable for such, how about telling the truth instead of telling us to vote no. This makes one want to vote yes because the County Commissioners are telling us what to do with our tax dollars. Shame on them.
PP said…
bye bye bonnie....

and besides. I thought you didn't read me anymore...
Anonymous said…
You afraid of what Bonnie has to say, PP? That's what it looks like to me.
PP said…
Not in the least.

I do it because she indicated at one point she doesn't read this website anymore. So, I'd hate for anyone to be bothered with an uninformed opinion other than my own.

Secondly, I also do it because I'm of the impression it is slightly irritating to her. Which makes it amusing to me.

Third and most important - why give space to those who support a crackpot amendment? If you ignore bullies and other annoying people, they'll eventually tire and go home. (To California.)

That said, I think tonight I'll write up a complaint to the Attorney General for her unreported expenditures on behalf of Amendment E.
Anonymous said…
Thanks for the info PP, I hope these infractions are dealt with.
Greg Dean said…
The answer is to question is simple: The contribution comes from NON-DUES revenue. It is not public money.

The County Commissioners Association checked with their attorney before deciding to use this NON-DUES money. The attorney's opinion was that according to SDCL 12-25-2, the use of these funds was above reproach.

PP, maybe next time you might think about getting both sides of the story before making accusing good people of breaking the law.

NO on 8 Committee

ps -- Maybe the bigger story is the nearly $1 million of out-of-state money that has been spent on this campaign, mostly by Verizon (close to $900,000 out of their coffers alone).

pss -- Or maybe the bigger story is the fact that Alltel has been assessing a $.30/month surcharge over and above the $.75/month surcharge that the state allows, so that Alltel can pay for 911 equipment. The feds allow companies like Alltel to assess this kind of fee, but it is wholly hypocritical for the big cell phone companies to assess this kind of surcharge. Why is it OK to add a double tax (ie. a new 911 surcharge) to offset their costs but it is wrong to have the big cell phone companies pay a tax to bring tax fairness to the communications industry.

pss2 -- maybe the bigger story is the fact that the leading spokesman for the big cell phone companies, a state senator from mitchell, advocate increases in property taxes to make up the revenue shortfall for the counties.
Anonymous said…
If it is NON-DUES money, then what money is it? A clear reading of the statutes says that County Commissions are only able to pay a "reasonable amount" for dues to belong to the SDACC. If the contributions are not from this money, what other money could a not-to-profit, governmental entity have that they could hold on to.

Don't let Mr. Dean confuse the issue. Any money held by counties (or the state for that matter) is money held in the public trust for taxpayers. The counties should not be able to keep secret pots of money that can be used to influence election results. Any money the counties keep should be returned to taxpayers, or employees, or whomever in the form of tax breaks, much like the cell phone companies are trying to do for their customers here.

The AG's Opinion is clear: Counties can not use "public monies" to influence legislation. Any money they have is public money, because at one time or another it all came from taxpayers.

And Mr. Dean, what happens if the Attorney General and the Secretary of State decide that your spending is in direct violation of the South Daktoa Code? How are the counties going to repay the taxpayers? They are not going to be able to assess dues for it, that is in violation of state law. I would be hard pressed to think that an individual contributor would fork over that kind of money. Your co-ops are certainly not going to raid their customers reserves or raise their customers rates to fund the money.

I don't think this issue is going away for the counties anytime soon.
Greg Dean said…
Anon 9:50 am, first of all, do us all a favor by putting a name to your post. If you want to debate this in public, then have the courage to come out and offer your critisms in the full view of everyone reading this post.

Second, this is the same charge that was thrown out in the waning days of the 2004 election in an attempt to smear the SD Municipal League in the ballot issue to repeal the food tax. The Municipal League was using NON-DUES money to pay for expenses related to the campaign. The AG looked at the issue then and found their use of NON-DUES money to be a LEGAL use of the money.

If you, like PP, want to make baseless charges, that is up to you. Just have the integrity to stand behind your accusations.

NO on 8 Committee
Anonymous said…
Greg - So how are they differentiating the funds if they all go into the same account.

That's why most people form pacs.
Greg Dean said…
The difference is that the county association tracks the non-dues money seperately from the public money it receives as dues revenue.

PAC money comes from individual contributions, and there have been some individual contributions from county commissioners put forward into this campaign. I don't think a PAC could have accepted this money. PACs can only take contributions from individual contributors.

NO on 8 Committee
Anonymous said…
ooooooooo, I get it, the County commissioners have taxpayer funds in one place and non taxpayer funds in another place, yup yup,,huh,huh, wink wink.

I'd still like to know where that (non) money came from.

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