SAN DIEGO UNIFIED SCHOOL DISTRICT Office of General Counsel Normal Street, Room 2148 San Diego, CA (619) Fax: (619)

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1 JO ANNE SAWYERKNOLL GENERAL COUNSEL JOSE A. GONZALES RICARDO J. SOTO SAN DIEGO UNIFIED SCHOOL DISTRICT Office of General Counsel 4100 Normal Street, Room 2148 San Diego, CA (619) Fax: (619) I.~ SATELLITE OFFICE Facilities Management 4860 Ruffner Street. Rm7 San Diego, CA Fax: (858) TAD SETH PARZEN (858) SANDRA T.M. CHONG Prop. MM Staff Attorney (858) SENT VIA FACSIMilE AND FIRST ClASS MAll October 3, 2002 Robin Lo Whitlow Executive Director San Diego Educators Association San Diego Mission Road, Suite 100 San Diego, California Re: Political Activities Usina District Resources and on School Premises Dear Ms. Whitlow: Yesterday, our office was informed that the San Diego Education Association (SDEA) had sent envelopes through the District mail service containing campaign literature supporting the election of John de Beck and Jeff Lee to the Board of Education. Specifically, the envelope contained a bumper sticker with the statement "Vote with Your Teachers John Deseck & Jeff Lee -Teachers' Choice for School Board," a button with the statement "Vote with Your Teachers Deseck & Lee for School Board," and a card with the statement "Vote with your Teachers for Jeff Lee and John de Seck" on one side and a list of reasons on the other side. Our office has been provided with a copy of the bumper sticker, button and card. In addition, Valerie Voss, principal at Sherman Elementary School, informed our office that teachers at her school received several documents in their mailboxes yesterday supporting the election of Mr. de Beck and Mr. Lee to the Board of Education. Two of the documents included the SDEA logo and urged volunteers and contributions for Mr.. de Beck and Mr. Lee. The other two documents placed in the teachers' mailboxes were the Candidate's Statement of Qualifications for Mr. de Beck and Mr. Lee. Our office has been provided with a copy of the documents. Please be advised that Education Code section 7054 prohibits the use of school district resources for the purpose of urging the support or defeat of any ballot measure or candidate, including any candidate for election to the governing board of the school "The /IIissioll ()f StIll Diego City Schools is to improve ~tltt/ellt achievement by supporting te(lchillg (lil(i /earllillg it, the C/tlSSroonL "

2 Robin Whitlow 2 October 3' 2002 district. The dissemination of the above identified materials through the District mail service and school site offices constitutes a use of school resources for political activities prohibited by Education Code section As a result, our office has advised the mail service to halt any further dissemination of the materials. Please ensure that your staff and members are aware of the limitations contained in section 7054 so that similar conduct does not occur in the future. Plea'se feel free to contact us if you have any questions or comments regarding this issue. c: Members of the Board of Education A. Bersin, Superintendent T. Smith, Chief of Staff R. Froman, Chief Business Officer D. Gomez, Deputy Administrative Officer B Elections/SDEA political activity

3 Education Code Section (a) No school district or community college district funds, services, supplies, or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate, including, but not limited to, any candidate for election to the governing board of the district. (b) Nothing in this section shall prohibit the use of any of the public resources described in subdivision (a) to provide information to the public about the possible effects of any bond issue or other ballot measure if both of the following conditions are met: (1) The informational activities are otherwise authorized by the Constitution or laws of this state. (2) The information provided constitutes a fair and impartial presentation of relevant facts to aid the electorate in reaching an informed judgment regarding the bond issue or ballot measure. ( c ) A violation of this section shall be a misdemeanor or felony punishable by imprisonment in the county jail not exceeding one year or by a fine not exceeding ony thousand dollars ($1,000), or by both, or imprisonment in a state prison for 16 months, or two or three years.

4 Bm ~~ SAN DIEGO UNIFIED SCHOOL DISTRICT Office of General Counsel JO ANNE sawyerknoll General Counsel 4100 Normal Street, San Diego, CA JOSE A. GONZALES (619) MELANIE PETERSEN Fax: (619) RICARDO J. SOTO Deputy General Counsel 1775 Chatsworth Blvd., Rm. 247 San Diego, CA (619) Fax: (6~ October 12, 1998 Beverly Tucker Chief Counsel California Teachers Association Department of Legal Services 575 Broadway Redwood City, California Re: Use of District Mailboxes Dear Ms. Tucker: The San Diego Educators Association (SDEA) has requested permission to place the current Little SDEAdvocate, an Association newsletter, in teachers' mailboxes located in school site offices. The newsletter, a two-sided one-page document, urges the passage of Proposition MM on a portion of one side, and urges a "no" vote on statewide Proposition 8 on the other side.of the page. The Association also asserts that political campaign materials relating to candidates and issues on the November 1998 ballot are required to be distributed to District teachers through the District's internal mail system. Pursuant to our earlier discussion, you advised me that you would provide our office with authority for the proposition that the District is required by law to comply with SDEA's original request, notwithstanding the prohibition set forth in Education Code section 7054 on the use of District resources for political activities. By letter dated October 2, 1998, a copy of which is attached, you set forth your opinion that union newsletters distributed through school mailboxes may include an "endorsement or opposition to a candidate or ballot measure; pieces advocating unit member support or opposition to a candidate or ballot measure" but that such communications should not "advocate support or opposition for a candidate or ballot measure without reference to the association's position." Although not expressed, your opinion would appear to be based on Government Code section (b) which states, in part, that "[e]mployee organizations shall have...the right to use...mailboxes, and other means of communication, subject to reasonable regulation... The United States Supreme Court has held that federal postal laws do not permit the University of California to carry unstamped letters from a labor union

5 Beverly Tucker 2 October 12, 1998 for delivery to University employees through the University's internal mail system. (Regents of University of California v. PERB (1988) 99 L Ed2d 664. In addition, distribution of the materials appears to be prohibited by Education Code section This section states in part:.'(a) No school district...funds, services, supplies, or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate, including, but not limited to, any candidate for election to the governing board of the district. (b) Nothing in this section shall prohibit the use of any of the public resources described in subdivision (a) to-provide information to the public about the possible effects of any bond issue or other ballot measure if both of the following conditions are met: (1) The informational activities are otherwise. authorized by the constitution or laws of this state. If. (2) The information provided constitutes a fair and impartial presentation of relevant facts to aid the electorate in reaching an informed judgment regarding the bond issue or ballot measure. (c) A violation or felony...." of this section shall be a misdemeanor The materials sought to be distributed expressly urge the support of Proposition MM and expressly urge the defeat of, a "no" vote on Proposition 8. Moreover, we believe it is clear that the distribution of the newsletter through the school mailboxes entails the use of "public resources." Consequently, we believe that the proposed action, if approved by a District official, would subject that official to potential criminal liability and potential personal financial liability. We are also aware of a local federal trial court decision wherein similar issues were raised by the Grossmont Educators Association and the court concluded that the union's First Amendment Rights were not violated by the Grossmont District's prohibition. (Grossmont Education Association, CTA/NEA v. Governing Board of Grossmont Union High School District, et. al. U.S.D.C. Southern District, California, Case NO JM(CGA).) Guidance for permissible political activities on school premises by teachers is found in California Teachers Association v. Governing Board of San Diego Unified School District (1996) 53 Cal.Rptr.474. This was an action brought by SDTA against the District alleging that the District impermissibly prohibited teachers from wearing "Vote'No on Proposition 174" political buttons in the

6 Beverly Tucker 3 October 12, 1998 classroom. The court of appeal upheld the District's policy and identified certain permissible political expression on school grounds outside of the classroom. The court stated therein: (1) school employees have the right to express to each other their respective political viewpoints on school property. (2) the school's ban on political advocacy cannot be enforced in noninstructional settings. (3) political materials may be circulated among teachers during off-duty hours, such as the lunch hour, on school premises. We again request that your dffice review this issue and provide us with authority which would S"upport your client's request. We are also prepared to work with your office to define the parameters of permissible teacher political activity on school grounds within the guidelines set forth in California Teachers Association v. Governing Board of San Diego Unified School District, or as may otherwise be permitted by law. i'1 Thank you for your anticipated courtesy and cooperation. Sincerely, ~ c Jose A. ( l~ JAG:Ig c: Members of the Board of Education Alan Bersin, Superintendent of Public Education Marc Knapp, President, SDEA Tuckerletter101298