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Nebraska Supreme Court Rules on the Use of Public Funds to Campaign Against a Candidate Running on a Wind Energy Platform

on Thursday, 23 October 2014 in Dirt Alert: David C. Levy, Editor

The Nebraska Supreme Court held that a violation of the Nebraska Political Accountability and Disclosure Act (“Accountability Act”), Nebraska Revised Statutes sections 49-1401 to 49-14,141, does not require identification of a candidate, election date, or political party. The Supreme Court, therefore remanded a case to the District Court for Lincoln County to determine whether employees of the Northwest Rural Public Power District (“Northwest”) violated the Accountability Act.

The Accountability Act provides, in part, that public employees shall not use or authorize the use of public resources for the purpose of campaigning for or against the nomination or election of a candidate. In October 2010, Rolland Skinner, then-general manager of Northwest, and Les Tlustos, Northwest’s consumer services director, authorized the purchase by Northwest of three thirty-second radio advertisements. Northwest’s ads played over 150 times on four different radio stations during October and November 2010, and ended after the election in November. During this time, Northwest pulled all of its regular radio announcements.

The ads did not mention any candidate by name, but the ads attacked the key campaign issues of one candidate, Michael Van Buskirk, who was running for Northwest’s Board of Directors. The ads criticized subsidies for wind energy, alleged generation duplication, and rates. Van Buskirk was the only candidate running on a wind energy platform and went on to win the election.

After Northwest rejected Van Buskirk’s request to stop airing the ads, Van Buskirk filed a complaint against Tlustos and Skinner with the Nebraska Accountability and Disclosure Commission (the “Commission”). The Commission determined that the ads were for the purpose of campaigning against Van Buskirk and fined Skinner and Tlustos $2,000 each. Skinner and Tlustos appealed, and Northwest intervened.

The District Court reversed. The District Court held that the ads did not amount to campaigning because they did not identify Van Buskirk by name, office, or otherwise. The District Court explained that the ads were informational only and cited to Northwest’s long history of communicating with its ratepayers. The Commission appealed.

The Nebraska Supreme Court reversed and remanded. The Supreme Court concluded that “campaigning” is the act of engaging in a series of operations or efforts designed to influence public support for or against a particular political candidate, ticket, or measure. The Supreme Court explained that a violation of the Accountability Act does not require identification of a candidate, election date, or political party. The District Court must consider whether Skinner, Tlustos, or Northwest intended the ads to influence public support for or against Van Buskirk. In determining that intent, the District Court must look to more than just the content of the ads.

The Supreme Court remanded the case back to District Court and ordered it to consider all relevant factors, including the content of the ads, Van Buskirk’s platform, whether or not he was the only candidate campaigning on those issues, whether or not the ads took a position for or against the issues, the timing and frequency of the ads, and how those ads compared to other ads by Northwest.

The Supreme Court’s decision expands the previous view of what amounts to “campaigning” and highlights the care that public employees must take when expending public funds.

A full copy of the Supreme Court’s opinion is available here. Neb. Accountability & Disclosure Comm’n v. Skinner, 288 Neb. 804, 853 N.W.2d 1 (2014).

Amy L. Lawrenson

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