A recent newspaper ad touting the benefits of a proposed transit authority raised a question about how the city can spend taxpayers’ money on a ballot issue.

It makes sense that city officials see a need to educate the public on what they’re being asked to decide. But where should the line be drawn between education and advocacy?

This year we’ve seen different approaches coming out of Honolulu Hale.

City Clerk Bernice Mau told Civil Beat her office spent $368 using in-house printing and a pamphlet-folding service to produce about 1,400 pamphlets detailing each of the six ballot questions. The pamphlets are available at Honolulu Hale, and the resolutions in question are also posted online.

One of those questions — a resolution to create a transit authority to manage Honolulu’s rail project – has also been presented to the public in a separate campaign.

The city’s rail transit division has shelled out $40,898 for ads in the Honolulu Star-Advertiser, MidWeek and some smaller community newspapers over the course of “a couple of months,” said Jim Fulton, executive assistant to the mayor.

Mau appeared surprised when she heard the cost of the transit division’s ad campaign.

“That’s different than what we’re doing,” she said. “They have an agenda. It’s different. Ours is just a reprint of the resolutions. We don’t want to get into interpreting anything.”

Given the estimated cost of the project – $5.5 billion – rail transit staffers say the widespread outreach is not only justified but a basic responsibility given the project’s scope.

The content of the half-page ad in the Sunday paper raises more questions. There are four subheads:

  • The facts
  • What does this mean?
  • Will this cost more money?
  • What are the benefits of creating a new public transit authority for the rail transit system?

The first three seemed relatively straightforward, but the fourth made us pause. Is it right for the city to use taxpayer money to present only the benefits of a charter amendment put to the public for a vote?

Given that the city is prohibited from advocating passage or defeat of charter amendments, is it even legal?

City officials say there’s no question the ad is legal.

“The public involvement team consulted with Corporation Counsel to be sure that the wording was taken nearly verbatim from the resolution,” Fulton said. “It conforms with the prohibition against partisan advocacy.”

One of the city’s transit spokesmen, Bill Brennan, also emphasized that the language of the ad comes directly from the resolution. Some of it does, but many of the benefits are paraphrased to laud a potential transit authority’s “singular focus,” how its board members would use “sound principles and objectives for project delivery,” and their ability to “make decisions more quickly.” None of that language comes directly from the resolution.

But Brennan argued the language in the ad is actually less glowing than that in the resolution itself.

“Read the actual resolution,” Brennan said. “It says, ‘whereas, it is prudent and in the best interest of the City to establish a semi-autonomous public transit authority.’ Prudent and in the best interest!”

But resolutions are written to be passed, and the language used in a resolution is meant to support that goal. There isn’t a law prohibiting a resolution’s inherent advocacy. There is a law prohibiting the city from encouraging voters to cast ballots one way or the other.

By only presenting the benefits of a possible transit authority, isn’t the city lobbying for its passage?

A former State elections officer said, in legal terms, no.

“It doesn’t sound like advocacy,” said Robert Watada, former executive director of the Hawaii Campaign Spending Committee. “It would have to say, ‘we want you to vote this way’ or ‘we want you to vote that way,’ for it to be advocacy.”

This isn’t the first time the issue has come up. City Ethics Commissioner Chuck Totto was out of the office when Civil Beat called this week, but his office issued a decision on a similar matter two years ago.

Residents had called into question a glossy flier that former Mayor Mufi Hannemann’s administration characterized as public information about a ballot question on rail. It cost more than $100,000 in taxpayer money, and some taxpayers saw it as partisan advocacy. The ethics commission issued an opinion explaining it was not. That opinion echoes what Watada said about cut-and-dry cases of partisan advocacy.

“Partisan advocacy is easy to identify when it is express. Exhortations urging voters to vote in a certain way on an election matter — ‘vote Yes’ or ‘vote No’ — are clear cut examples of partisan advocacy.

‘Vote for,’ ‘vote against,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘defeat,’ and ‘reject,’ are other examples of express partisan advocacy. … Appeals to vote a particular way that uses these express words of partisan advocacy constitute political activities that clearly cannot be funded with public resources.”

The commission also explained that the mayor had “implied power to spend public funds to inform and educate the public about matters of public concern, including matters that are subject to a vote.”

But interpretation of the law isn’t always so straightforward. The ethics commission went on to explain some of the nuances that got us asking about the transit ad in the first place:

“Not all partisan advocacy, however, is so blunt. Certain communications can implicitly urge voters to vote a particular way on an election matter even though they eschew express words of advocacy. For example, a communication can present information that is so heavily one-sided, or make arguments that favor one side of the debate, that it can only be reasonably interpreted as an unspoken appeal to vote a particular way.

These communications are, in other words, the ‘functional equivalent’ of express partisan advocacy, since they serve the same political purpose – influencing voters to vote a certain way.”

So we asked an increasingly exasperated Brennan to explain: Why did the city only explore the presumed benefits of a transit authority?

“You’re assuming there are any negatives,” Brennan said. “What negatives are there to include? I think you’re trying to find something that just isn’t there.”

Brennan followed up in a later e-mail: “This ad is not partisan advocacy, because after reading it, you can disagree and vote no.  And the ad speaks about a No vote…”

Among the concerns raised by neutral groups, such as the League of Women Voters of Honolulu, and scholars:

  • It would grow the bureaucracy and make it harder for citizens to get information.
  • It would make elected officials less accountable for rail.
  • Citizens would not be able to change board leadership whereas they can vote out elected officials.
  • Such an authority isn’t necessary for a system that doesn’t cross governmental jurisdictions, say between cities or counties.

The only part of the ad that indicates that voters can do anything but support the amendment goes on to remind them that the project will continue either way.

Under the “What does this mean?” heading: “A NO vote means you do not support creating the transit authority. A BLANK or SPOILED ballot will not be counted. Regardless of the outcome of the vote, work on the project will continue.”

As it does, we’ll continue to ask questions about how the city spends tax dollars.

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