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2007-1: Distribution of Mass Communications in Electronic Forms Subject to 90 Day Mass Mailings Rule

Thursday, February 08, 2007

Re:  New York City Charter §§ 1136.1(1)(e), (2)(b), (3)(a)(iii), (4); Advisory Opinion No. 2006‑1; Op. No. 2007-1.

Charter § 1136.1(2)(b) (the "Mass Mailing Prohibition"), as amended by the City Council in December 2004, prohibits a public servant from using government resources1 "for a mass mailing that is postmarked, if mailed, or delivered, if by other means" within ninety days of an election in which he or she is a candidate, subject to certain exceptions.2 (Emphasis added.) Charter § 1136.1(1)(e) defines a "mass mailing" as "identical or nearly identical pieces of literature or other mass communication3 totaling more than one hundred items, including but not limited to newsletters, pamphlets and informational materials, which are mailed to residents or voters, or any group or classification thereof, other than in response to specific inquiries or requests made by members of the public."4 The December 2004 amendments to Charter § 1136.1 strengthened the Mass Mailing Prohibition by lengthening the restricted period from thirty days to the current ninety days and expanding its reach to mass mailings "delivered" "by other means" in addition to by mail. See Local Law No. 58 of 2004.

A question has arisen whether New York City Charter § 1136.1(2)(b) would restrict candidates who are also public servants from having literature at tables or other stationary sites, including booths and platforms, available for the public to take at community events or street fairs within ninety days of an election.5 This advisory opinion clarifies that having literature or other mass communication where it may be found and picked up by voters or residents at public events,6 public locations, or common areas of residential and commercial buildings, such as hallways and lobbies, constitutes "delivery" of a mass mailing within the meaning of New York City Charter §§ 1136.1(1)(e) and 1136.1(2)(b).7

The Board also clarifies in this advisory opinion that using government resources to send e-mail or make other electronic forms of communication available to residents or voters constitutes "delivery" of a "mass communication" under §§ 1136.1(1)(e) and 1136.1(2)(b) and is thus subject to the Mass Mailing Prohibition.

Distribution at Public Events, Public Locations, and Common Areas
The Mass Mailing Prohibition limits the advantage a public servant may gain in an election through his or her access to government resources, while balancing the public servant's need to reach constituents.  Charter § 1136.1(2)(b) also aims to prevent the distribution of large amounts of material at the public's expense before an election for what may be, or may be perceived to be, a political purpose, including that of supporting incumbent candidacies.  Thus, Charter § 1136.1(2)(b) limits a public servant's use of government resources to distribute mass communications to voters during the height of the campaign season. 

The Board must construe Charter § 1136.1(2)(b) in order to effectuate these purposes. 8 Therefore, the Board concludes that having literature or other mass communication in public locations, at public events, or in common areas of residential and commercial buildings where it may be found and picked up by residents or voters constitutes "delivery" of a mass mailing within the meaning of Charter § 1136.1(2)(b).9 This is consistent with the Board's interpretation, in response to informal inquiries from public servants since the adoption of the 2004 amendments, that the term "delivered" includes the distribution of literature by hand.

The argument has been made that locating literature at a stationary location where the public may choose to take it is too passive an activity to constitute a form of literature distribution or "delivery" under Charter § 1136.1(2)(b), and is more akin to an elected official having literature available in his or her City government office for visitors, but the Board concludes otherwise. The meaning of the term "delivered" is apparent from the language of Charter § 1136.1(2)(b), which prohibits the use of government resources for a mass mailing "that is postmarked, if mailed, or delivered, if by other means." In this context, the Board finds that the term "delivered" has the common meaning that also defines the delivery of mail: "to take to the intended recipient <deliver mail>" (Webster's II New College Dictionary 299 (1999)). (emphasis in original.) Thus, the affirmative act of taking literature or other mass communication to a public location, public event, or common area where it is intended to be seen and picked up by voters and residents constitutes "delivery" of the literature under Charter § 1136.1(2)(b).10

Having literature or other communications at a public event or location or in a common area is distinguishable from an elected official having literature in an evident location in his or her City government office for members of the public. In the latter situation, the public servant has not brought the literature to voters or residents, but the voters or residents have come to the public servant. It is the affirmative act of the voters or residents that brings them into contact with the literature, and they only encounter the literature as a result of their intent to visit the City government office of the public servant. Consequently, having literature available at a City government office does not implicate the Charter's concern with any unfair advantage that may accrue to the public servant from disseminating mass communications before an election, by in effect campaigning with public resources.

In contrast, a voter or resident who attends a public event or is in a public location or common area could be there for a number of reasons. For example, elected officials often attend various street fairs held in New York City over the summer and hand out literature at these events. Most members of the public do not attend these street fairs, however, in order to contact their elected officials, and they may not be aware that the elected official will be present at the event.11

The exception in Charter § 1136.1(1)(e) to the definition of a mass mailing for literature or a communication sent "in response to specific inquiries or requests made by members of the public," does not apply to having literature or other mass communication where it may be found and picked up by residents or voters at public locations, public events, or common areas of residential or commercial buildings (emphasis added). Nor does the exception to the Mass Mailing Prohibition in Charter § 1136.1(3)(a)(iii) for "standard communications in response to inquiries or requests" apply to this activity (emphasis added). The public servant "delivers" a mass mailing to the public by locating the literature or other mass communication at a public location, public event, or common area. Even if an individual thereafter requests or inquires about the literature or other mass communication upon seeing it at one of these locations, by this time the public servant has already delivered the mass mailing, and the request or inquiry is incidental. Moreover, the public servant has induced the request or inquiry by making the literature or mass communication available in the first place. Thus, the delivery of the mass mailing was not "in response to" an inquiry or request and the exceptions of Charter §§ 1136.1(1)(e) and (3)(a)(iii) do not apply.

For these reasons, the Board finds that having literature at tables, booths, or other stationary sites at public events, public locations, or common areas in residential and commercial buildings constitutes "delivery" within the meaning of Charter § 1136.1(2)(b). Consequently, this activity is subject to the Mass Mailing Prohibition.12

Electronic means of communication
The Board also finds that the use of government resources to deliver electronic communications to residents or voters is subject to the Mass Mailing Prohibition of Charter § 1136.1(2)(b). While the Board cannot foresee all means of electronic communication, the Board will apply the approach of reading the statute broadly. Electronic communications, including, but not limited to, e-mail, text messages, and internet links and content, constitute a form of "mass communication" under § 1136.1(1)(e). Making identical or nearly identical electronic communications available to residents or voters, for instance, in the text of an e-mail message, by file attachment in an e-mail, through a request on a social networking site, or through an internet link contained in an e-mail, text message, or on a website, constitutes "delivery" under Charter § 1136.1(2)(b). For instance, a public servant who sends over 100 copies of his or her constituent newsletter to residents or voters by e-mail has "delivered" a "mass mailing" within the meaning of the Charter.13 The same rationales for the Board's finding that having literature available on a table constitutes "delivery" under § 1136.1(2)(b) apply here, since in both situations the public servant is making the mass communication available to residents and voters. Consequently, subject to the exceptions in Charter § 1136.1, 14 a public servant running for elective office may not use government resources to send electronic communications, including e-mails of constituent newsletters, to residents or voters within ninety days of the election in which he or she is a candidate.

NEW YORK CITY CAMPAIGN FINANCE BOARD

1 The Campaign Finance Board (the "Board") finds that the term "government resources" includes, but is not limited to, government-provided funds or resources such as personnel, e-mail lists, stamps, bulk rate mail permits, and equipment.

2 In full, Charter § 1136.1(2)(b) provides:

No public servant who is a candidate for nomination or election to any elective office or the spouse of such public servant shall use, cause another person to use, or participate in the use of governmental funds or resources for a mass mailing that is postmarked, if mailed, or delivered, if by other means, less than ninety days prior to any primary or general election for any elective office for which office such person is a candidate for nomination or election; provided, however, that a candidate may send one mass mailing, which shall be postmarked, if mailed, or delivered, if by other means, no later than twenty-one days after the adoption of the executive budget pursuant to section two hundred fifty-four. No such mass mailing shall be intentionally sent to individuals outside the particular council district, borough, or other geographic area represented by such candidate.

3 The Board finds that the term "other mass communication" includes, but is not limited to, e-mail, DVDs, CDs, videos, and other communicative materials.

4 Literature or other mass communication need not be sent through the mail to constitute a mass mailing pursuant to Charter § 1136.1(1)(e): to determine otherwise would conflict with the plain language of Charter § 1136.1(2)(b), which includes communications "delivered" "by other means" than the mail within the scope of restricted activity.  

5 Charter § 1136.1(4) authorizes the Board to investigate and determine violations of Charter § 1136.1(2)(b), providing, in pertinent part:

The campaign finance board shall have the power to investigate and determine whether any use of governmental funds or resources pursuant to paragraph (b) of subdivision two of this section is a violation of such paragraph and, if such violation is found, whether such use of government resources also violates or constitutes a contribution and/or expenditure under chapter seven of title three of the administrative code of the city of New York or any rule promulgated thereunder. The campaign finance board may assess civil penalties, upon giving written notice and the opportunity to appear before the board, against candidates for offices covered by the system of campaign finance reform, in an amount not in excess of ten thousand dollars for each such violation.

6 Public events include campaign events, and thus the use of government resources in connection with the distribution of literature or other mass communications at campaign events, as discussed in this advisory opinion, is also subject to the Mass Mailing Prohibition.  As discussed below, however, having literature available in a City government office is permissible.

7 Although common areas of residential and commercial buildings may not be open to the public at large, the use of government resources to distribute mass communications to the public in these locations raises the same concerns with improper electioneering as does distributing mass communications at public locations or public events.

8 This is consistent with New York City Campaign Finance Board Advisory Opinion No. 2006-1 at 2 (June 13, 2006), which found that Charter § 1136.1(1)(d), which defines "elective office" in connection with this statute, was drafted "broadly to encompass all elective offices, regardless whether the offices are covered by the Act, and to authorize the Board to regulate candidates for all such offices."  

9 It is not necessary that government resources be used to distribute in excess of 100 copies of the literature or other mass communication at public events, locations, or common areas to constitute a violation of Charter § 1136.1(2)(b), but only that government resources be used to distribute in excess of 100 copies during the ninety-day period.  See Charter § 1136.1(1)(e).  Thus, if a public servant who is a candidate mails 75 copies of the literature and distributes 26 copies at street fairs during the ninety-day period, this would still constitute a violation, provided no exception applies.  Whether the activity is a violation turns on the number of items distributed during the restricted period—not whether they are distributed in the same manner.

10 Certainly, the common sense understanding is that having literature available for the public at a table, booth, or other fixed location is a form of distribution.  See, e.g., Heffron v. International Soc. for Krishna Consciousness, Inc. 452 U.S. 640, 101 S.Ct. 2559 (1981) (addressing constitutionality of State rule requiring that "all persons, groups or firms which desire to sell, exhibit or distribute materials during the annual State Fair must do so only from fixed locations") (emphasis added); New York City Department of Parks and Recreation Rules and Regulations § 1-05(t) ("Products and/or materials may be distributed only upon an indication of interest by the recipient, and only from a fixed location specified in the permit") (emphasis added.)  To claim that one is not distributing literature because one has merely placed it on a table for the public to retrieve as it wishes is not tenable. 

11 Of course, when voters or residents attend a campaign event, they are attending for a purpose relating to the candidacy of the public servant rather than his or her official office.  In this case, the public servant's use of public monies to distribute literature or other mass communication at the event falls squarely within the Charter's concern with the misuse of government resources for campaigning.

12 This advisory opinion in no way affects the Conflicts of Interest Board's jurisdiction over matters concerning the use of government resources not covered by this advisory opinion.

13 Likewise, a public servant who uses government resources to post identical or nearly identical information or links to such information in over 100 internet locations that are available to residents or voters, apart from the public servant's City government website, has "delivered" a mass mailing.  (The exception for information contained on a City government website is similar to the exception for literature or other mass communication the public servant makes available in his or her City government office.  In both situations, voters or residents will generally not come into contact with the communication unless their objective relates to the office of the public servant.)

14 As discussed above, the exceptions in Charter §§ 1136.1(1)(e) and (3)(a)(iii) do not apply to solicited requests or inquiries, however.