QUESTION: Is the board allowed to include their opinion about CC&R and Bylaw amendments when they send out the ballot?

ANSWER: Yes, boards may express limited opinions without violating the Davis-Stirling Act's general prohibition against using association funds for campaign purposes found in Civ. Code §1363.04(a).

Ambiguity. What does "campaign purposes" mean? The Act defines it to mean "expressly" advocating the election or defeat of candidates (and presumably ballot measures). Civ. Code §1363.04(b). What does "expressly advocate" mean? Does that mean an opinion is allowed or prohibited? Unfortunately, there is no case interpreting this particular Civil Code provision. However, a case involving a county election sheds light on the issue because it addresses a similar restriction.

Expressing an Opinion. In a dispute between a labor union and Santa Clara County, the court ruled in favor of the County when a Supervisor used his staff to distribute informational material and his opinion about a ballot measure. The court explained:

. . . there is a critical distinction between expenditures by a governmental body for informational activities, which generally are permissible, and expenditures for campaign activities, which generally are not. . . .

[The law] does not preclude a governmental entity from publicly expressing an opinion with regard to the merits of a proposed ballot measure, so long as it does not expend public funds to mount a campaign on the measure. . . .

 . . . in many circumstances a public entity inevitably will "take sides" on a ballot measure and not be "neutral" with respect to its adoption. If every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it radically transformed. Thus, the mere circumstance that a public entity may be understood to have an opinion or position regarding the merits of a ballot measure is not improper. . . . [internal cites deleted] DiQuisto v. County of Santa Clara.

It should be noted that associations have been deemed by the courts to be quasi-governmental in nature. With that in mind, two things can be gleaned from the case: (1) informational material with a ballot is allowed and (2) boards can express opinions about ballot measures. The one thing boards cannot do is use association funds to mount a campaign for or against ballot issues and candidates.

RECOMMENDATION: If a board expresses an opinion, it should be somewhat limited. For example:

The Board unanimously supports the proposed Restated CC&Rs and asks that you read the enclosed material and reach your own conclusion before casting your vote. Once you decide how to vote, please mark the enclosed ballot and return it to . . ."

In addition, if directors actively participate in an election by sending out mailers and distributing fliers, they should include a disclaimer in their materials stating that no association funds were used in the preparation or printing of the materials.