Latest debate in sales tax election: How far can the county go in pushing for a ‘yes’ vote?

photo by: Nick Krug

A stack of mail-in Proposition 1 ballots sits at the Douglas County Courthouse on Monday, May 7, 2018.

As the countywide sales tax election nears its end, the debate has grown to include whether Douglas County officials are improperly campaigning for the tax increase, which would fund a controversial jail expansion and mental health programs.

County officials said early on they would follow legal advice to not specifically advocate for passage of the sales tax. Rather, they would seek to educate voters and produce informational materials about the election.

But where is the line between providing information and trying to persuade residents to vote yes? Opponents of the sales tax say the county crossed it some time ago.

“Unfortunately, it has become clear that the county’s ‘informational’ materials are only thinly-veiled advocacy materials paid for with public funds,” a Facebook post from Kansas Appleseed, an opposition group, accused recently.

County Counselor John Bullock, though, said the line is actually not well-defined in state law, and argued county commissioners probably are showing more restraint than the law technically requires.

“We’re not trying to push the limit or cross the line,” Bullock said. “We’re presenting factual and educational information and letting the public decide.”

Bullock, however, acknowledged that informational material doesn’t necessarily have to be balanced material. In other words, it doesn’t have to include arguments or viewpoints made by opponents of the sales tax. He said it is permissible for the county to present facts and statistics in a way that leads a reader to a preferred conclusion.

Sales tax opponents, though, said the practice — whether it is legal or not — is frustrating because it is using public money to try to lead people to vote a certain way.

“I’m disappointed,” said Patrick Wilbur, a leader of the sales tax opposition group Lawrence Sunset Alliance. “Even if I wasn’t on the Jail No side, I would be uncomfortable with the county crossing the line like this. Even if I was a ‘yes’ supporter, I would be thinking about how down the road I could be on the other side of an effort like this.”

Wilbur said he was disappointed that the county spent a significant amount of money to print and mail an informational brochure to every household in the county when there were other, cheaper ways to ensure the information was readily available.

He also has concerns about the wording of parts of the brochure. He said the county hasn’t been very educational in explaining the “statutory obligation” related to the county jail. He contends the county has left residents with the impression that it is facing some type of order to improve the jail, which is not the case.

“That is miscommunication,” Wilbur said. “The people need to understand the county runs the jail. The state isn’t telling the county how to run the jail. The state tells the county to have a jail.”

He’s also disappointed in how the county describes what will happen if the sales tax fails. The county’s material focuses on cuts to social services and increases in property taxes. But the material doesn’t acknowledge that the county could simply restructure the sales tax proposal to make it more amenable to voters and try again. When pressed, county commissioners have acknowledged another sales tax ballot question is a possibility if the current initiative fails.

“If there are other scenarios that are viable, and there are, then mention them,” Wilbur said. “That’s the point of education.”

Wilbur also takes issue with some figures that are presented as facts by the county. He said the county frequently notes that 30 percent of the new sales tax that would be collected would come from out-of-county residents. He’s asked the county to share its source for the figure but has yet to see one.

“It is the Sasquatch of local politics,” Wilbur said. “Nobody can cite or prove it.”

Douglas County Commission Chair Nancy Thellman said the county brochures present information on jail and behavioral health needs developed after four years of study. Bullock has reviewed multiple times everything the county has had printed and posted online and found it to be educational and informational.

As for what the law allows, a spokesperson for the Kansas Governmental Ethics Commission said the body had no authority to regulate local ballot questions like Proposition 1.

Bullock said there is no Kansas statute limiting what local officials can say in regard to bond referendums or the content of materials local jurisdictions make available to voters about such ballot questions.

In the absence of a defining statute, the comments a Supreme Court justice made in a 1935 decision in Kansas Electric Power Company v. City of Eureka have provided guidance. The justice’s comment in 1935 was that, when acting in an official capacity, local officials should maintain an appearance of neutrality by limiting comment to informational and educational facts and not take advocacy positions. Subsequently, several Kansas attorneys general have weighed in with opinions.

Bullock has an opinion of his own — that the comments made by the Supreme Court justice in the Eureka case 83 years ago may not prevent Douglas County commissioners from publicly voicing more forceful support for Proposition 1. Nonetheless, Douglas County commissioners decided to limit themselves to educational and informational public comments and do the same with the printed and online material the county made available, he said.

To Wilbur, the issue isn’t as much about what the law allows, but whether this is the right way for a local government to conduct a campaign.

“The people with the county are not bad people,” Wilbur said. “They are good people, and I think their intentions are good. But this ballot question sucks, and there comes a point where process is important, because if you validate bad process, you will get it again and again.”