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Limitations on Incumbency in California

There are prohibitions on certain types of mass mailings or newsletters

By Chris Micheli, January 17, 2022 3:03 pm

California’s Government Code in Title 9, Chapter 9, has a series of code sections related to incumbency of elected officials. Chapter 9 contains Sections 89000 – 89003. Section 89000 provides that the order of names of candidates on the ballot in every election must be determined without regard to whether the candidate is an incumbent.

Section 89001 prohibits any newsletter or other mass mailing to be sent at public expense. Section 89002(a) prohibits a mailing if all of the following criteria are met:

  • An item sent is delivered, by any means, to the recipient at the recipient’s residence, place of employment or business, or post office box.
  • The item delivered to the recipient must be a tangible item, such as a videotape, record, or button, or a written document.
  • The item sent either features an elected officer affiliated with the agency that produces or sends the mailing, or includes the name, office, photograph, or other reference to an elected officer affiliated with the agency that produces or sends the mailing, and is prepared or sent in cooperation, consultation, coordination, or concert with the elected officer.
  • Any of the costs of distribution are paid for with public money or the costs of design, production, and printing.
  • More than 200 substantially similar items are sent in a single calendar month, excluding any item sent in response to an unsolicited request.

Nonetheless, Section 89002(b) provides that a mass mailing of the following items is not prohibited:

  • An item in which the elected officer’s name appears only in the letterhead or logotype of the stationery, forms, including “For Your Information” or “Compliments of” cards or stamps, and envelopes of the agency sending the mailing, or of a committee of the agency, or of the elected officer, or in a roster listing containing the names of all elected officers of the agency.
  • A press release sent to members of the media.
  • An item sent in the normal course of business from one governmental entity or officer to another governmental entity or officer, including all local, state, and federal officers or entities.
  • An intra-agency communication sent in the normal course of business to employees, officers, deputies, and other staff.
  • An item sent in connection with the payment or collection of funds by the agency sending the mailing, including tax bills, checks, and similar documents, in any instance in which use of the elected officer’s name, office, title, or signature is necessary to the payment or collection of the funds.
  • Any item sent by an agency responsible for administering a government program, to persons subject to that program, in any instance in which the mailing of the item is essential to the functioning of the program, the item does not include the elected officer’s photograph, and use of the elected officer’s name, office, title, or signature is necessary to the functioning of the program.
  • Any legal notice or other item sent as required by law, court order, or order adopted by an administrative agency pursuant to the Administrative Procedure Act and in which use of the elected officer’s name, office, title, or signature is necessary in the notice or other mailing.
  • A telephone directory, organization chart, or similar listing or roster which includes the names of elected officers as well as other individuals in the agency sending the mailing, in which the name of each elected officer and individual listed appears in the same type size, typeface, and type color.
  • Specified announcements of certain meetings or events.
  • An agenda or other writing that is required to be made available, or a bill, file, history, journal, committee analysis, floor analysis, agenda of an interim or special hearing of a committee of the Legislature, or index of legislation, published by the Legislature.
  • A business card that does not contain the elected officer’s photograph or more than one mention of the elected officer’s name.

In addition, Section 89002(c) provides definitions for the following terms: “Elected officer affiliated with the agency”; “Features an elected officer”; “Substantially similar”; and, “Unsolicited request.”

Section 89003 prohibits a mass mailing from being sent within the 60 days preceding an election by or on behalf of a candidate whose name will appear on the ballot at that election, except as provided above.

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