• Joeff Davis
• Attorney General Sam Olens speaking earlier this summer at the Republican National Convention

Not long after the Georgia Department of Education announced its neutral stance toward the charter schools amendment, state Attorney General Sam Olens reminded public officials that they — unsurprisingly — should not be using taxpayer resources to oppose the proposed amendment.

Olens sent a letter to John Barge yesterday afternoon explaining why the Georgia Schools Superintendent — or any board members for that matter — cannot publicly lobby for the amendment.

"Local school boards do not have the legal authority to expend funds or other resources to advocate or oppose the ratification of a constitutional amendment by the voters," Olens wrote. "They may not do this directly or indirectly through associations to which they may belong."

The superintendent had previously presented his views in a 29-point anti-charter amendment document posted on the education department's website, a move which was met with negative backlash as well as a few legal complaints. (CL reached out to Barge yesterday, but he declined to comment "on the amendment right now because of potential litigation.")

Last week, Barge consulted with the attorney general about his political activity, prompting Olens to write the three-page letter. In one portion, the attorney general said (read the full letter here):

None of the funding authorities granted to local school boards may be lawfully extended to include electoral advocacy... Georgia law provides that that local government entities, including county school boards and charter schools, may not expend local funds or resources on electoral advocacy.

You have also requested that I advise you regarding any duty that may exist to take enforcement action against local school boards that have violated this prohibition. I will provide that advice in a subsequent letter.

In addition, the AJC's Jim Galloway shared an insightful response from Atlanta lawyer Emmet Bondurant, who examined the attorney general's letter, which cites a previous case Bondurant was involved with:

By his use of the term “indirectly, ” the AG’s letter means only that a local school board could not directly pay for an advertisement for or against an referendum, nor could it use public funds to pay for an advertisement indirectly, by funneling the funds through a third-party organization of which the local school board may, or may not be a member.

This does not mean, however, that local school board members may not speak out and advocate for or against ratification of a ballot measure. The Harrington case, which is the leading case cited in the AG’s opinion, makes that point crystal clear.

Note also that the AG’s opinion applies not only to local school boards, but also to charter schools that receive public funds as well. Although not mentioned in the opinion, the ban on the use of public funds to influence the outcome of an election or referendum, applies with equal force to Governor Deal and other state officials.

Given Glen Delk’s recent threats, I think that it is especially important that the narrowness of the AG’s opinion be made clear to local school board officials, as prohibiting only the expenditure of public funds and resources, and that it does not prohibit local superintendents or school board members from speaking out and campaigning against the charter school amendment.

I also want to point out that although the AG’s ruling is correct, it creates an political imbalance in the campaign for the hearts and minds of voters, by prohibiting local school boards from spending public funds to protect their autonomy and the diversion of public funds to charter schools, while allowing the for-profit charter schools, and wealthy ideologues like Mrs. Walton, to spend unlimited amounts of private funds on TV, print and direct mails aimed at persuading voters to ratify the amendment.

Bondurant's final point hits the nail on the head. Although the attorney general alludes that officials on both sides stay on out of the fray — at least while on-the-clock — he has given the opposition a much sterner warning. It's also interesting to note that while not a school official, Gov. Nathan Deal has edited one of his prior statements urging Georgia voters to approve the change.

The statement, released last March when the amendement first passed, ended with the line: “I hope Georgians will cast their vote for protecting and promoting schools that have a strong record of student achievement.”

However, it now reads: “There’s a great need in our state for protecting and promoting schools that have a strong record of student achievement.”

UPDATE, 4:19 p.m.: Attorney General Sam Olens held a media conference a few minutes ago over the phone with reporters. He didn't add much as he refused to get into hypothetical examples, different fact patterns," or conversations with his clients — including Barge. He did say, however, that he hopes a follow-up letter will be sent out "within the next two weeks" — which should offer clarity on how enforcement action against violators would take place.

UPDATE: 4:56 p.m.: Olens made the following initial statement to open his media conference, before answering questions.

Dr. Barge, my client as state school superintendent, asked me for advice on several matters related whether local schools can campaign for or against the charter amendment. I sent him a letter yesterday answering the main question.

That letter did not break new legal ground. It simply restated what the Georgia Supreme Court made very clear more than 30 years ago: local governments cannot expend taxpayer resources to tell taxpayers how to vote.

This rule applies equally to supporters and opponents of the amendment. And this rule also applies only to the expenditure of public resources — government officials and employees have full First Amendment rights to express their personal opinions. They simply don’t have a right, under the First Amendment or any other legal provision, to expend public resources in communicating their personal opinions.

That’s not a new reading of the law. That’s what the Georgia Supreme Court has said repeatedly for decades; it’s what state statutes say; and it’s a pretty common sense approach, too. The government can’t tax you and then use your tax money to tell you how to vote.

Now, we’ve gotten a lot of questions about this letter today, and I wanted to take a minute to talk with you and address some of them.

Some questions, like whether certain groups have broken the law, I can’t answer because they are fact-intensive questions and I don’t have the facts. I’m not going to get into answering hypothetical questions about what does and doesn’t violate the law when I have an active matter on the issue. We’re currently working on advice to the State School Superintendent on what enforcement mechanisms may be appropriate or necessary. Because that’s active, I’m not going to get into those details right now.

Again, my letter made one simple point: the law does not allow local governments to expend taxpayer resources to tell taxpayers how to vote — no matter whether they’re saying vote yes or vote no.