City pressed over Prop. 421 link in Tucson newsletter

On Aug. 31, the city sent out its daily newsletter called NewsNet to city employees and members of the public who are signed up for the listserv.

The first paragraph explained the city’s upcoming Prop. 421 election, which is a potential renewal of TEP’s franchise agreement with the city. The franchise agreement sets a framework for how the city interacts with the utility company, like its use of streets and alleys for infrastructure repairs.

The city also included a link to TEP’s information page about Prop. 421. Activists with advocacy group Public Power for Tucson believe the link to TEP’s own website uses public resources for political activities, which is illegal under state law.

“I not only think that this is sneaky and deceptive, but a betrayal of both the city employees of Tucson and all Tucson residents,” said Brinley Carrillo at Tuesday night’s council meeting.

Could Tucson face legal consequences for the newsletter link?

“I don’t know that it is a slam dunk, but I think the city has some exposure to liability here,” said James Barton, a Tempe lawyer specializing in political and governmental relations law.

But City Attorney Roi Lusk said he is “comfortable with what happened,” because the purpose of the newsletter was to provide readers with a place to read the full ballot measure and information about it.

The linked page now includes 11 endorsements of Prop. 421, but were not added until after the Aug. 31 edition went out, Lusk said.

The newsletter link was taken down for “an abundance of caution,” Lusk told the crowd during a call to the audience.

Similar concerns raised in 2002

A political gadfly named John Kromko, a frequent plaintiff against the city and head of the Tucson Traffic Justice campaign that ended the use of red-light cameras in Tucson, sued for a similar issue in 2002, when the city had two ballot measures for a half-cent sales tax and a transportation plan up to voters that fall.

He claimed the city and the city manager had improperly used city resources by distributing two pamphlets, television and radio ads, and hosting a website with proposition information Kromko argued was in favor of passing both propositions.

“This campaign clearly influences the voters. It “educates” the voters that the transportation plan is good for them,” Kromko wrote in his complaint.

In April 2002, a Pima County trial court upheld some of Kromko’s claims and said the city could no longer distribute one pamphlet, one of the TV ads, and three of the webpages the court found were likely to influence the election outcome.

However, the appellate court did not find the city’s actions to demonstrate “unambiguous urging of the electorate to vote in favor,” and overturned the lower court’s ruling a few months later. Kromko’s media examples could be found as educational by a reasonable person, the appellate court wrote.

Anyone can sue the city, and many do, Lusk said, but it’s unlikely the trial court’s findings in the Kromko case could happen again because of new state standards in 2015 that require any communication about elections to be presented neutrally.

Newsletter has about 6,000 subscribers

NewsNet goes out daily to about 6,000 subscribers to the email list, which is open to anyone, city spokesperson Andy Squire said. One could argue the city uses a negligible amount of city resources to distribute it every day, Lusk said, but a court is likely to look at the purpose of the communication to distinguish the line between advocacy and education.

TV ads, in the case of Kromko, would be easier to prove as more of a direct communication than a daily newsletter, he said.

“Generally, the line is the statement of facts versus statement of purpose… What the court is going to be looking at is one, what the purpose of the communication was, and they'll look at the totality of the circumstances around that communication,” he said.

Two opposing views of Prop. 421 appear in the official voter guide, which will be physically mailed to voters and was also emailed in the Sept. 23 NewsNet edition. It cost $240 to submit an argument for or against the measure, Squire said, which is the actual cost to print the page.