POPLAR GROVE, IL. (ECWd) -
After our article referencing Village of Poplar Grove President and Candidate Owen Costanza's electioneering on the village's official social media account, several people expressed their opinion that there is no law prohibiting campaigning on an official Facebook page, so it is not electioneering.
We disagree, and suggest, as the State Official and Employees Ethics Act ("Ethics Act") provides, that it is a Class A misdemeanor if found guilty in a Court.
An official social media account for a public body is public property, subject to the Freedom of Information Act, Local Records Act, Ethics Act, Illinois Constitution, and the protections found in the First Amendment to the United States Constitution.
Just as physical real estate (city hall) is public property, so are government vehicles, computers, telephones, fax machines, cell phones, email accounts , time at a government job,. . . and . . . official government webpages and social media accounts.
As with other public property, electioneering with public property is intentionally misappropriating government property [5 ILCS 430/5-15, et seq] by engaging in prohibited political activity for the benefit of a campaign for elective office.
Electioneering involves 15 specifically enumerated "prohibited political activities" as defined in the State Official and Employees Ethics Act, 5 ILCS 430/1-5, and for Poplar Grove, their own Municipal Ethics Ordinance adopts Section 15, and the Gift Ban portion of that Act.
Chapter 1-5 of the Ethics Act defines prohibited political activity, in part, as follows:
- (1) Preparing for, organizing, or participating in any political meeting, political rally, political demonstration, or other political event
- (7) Soliciting votes on behalf of a candidate for elective office...
- (11) Distributing, preparing for distribution, or mailing campaign literature, campaign signs, or other campaign material on behalf of any candidate for elective office...
- (12) Campaigning for any elective office...
While reading the Ethics Act, you might also want to consider the definition of "Prohibited Source" numbers (2), (3), and (4) which may likely apply to the social media posts in question.
In Section 5-15, it states, in part, "Prohibited political activities.":
- (a) . . . shall not intentionally misappropriate any State (municipal) property or resources by engaging in any prohibited political activity for the benefit of any campaign for elective office . . .
The Illinois Attorney General has determined that Social Media account of public bodies are public record and subject to the Freedom of Information Act (here and here) as digital records have always been within the definition of a "public record."
The Secretary of State has applied the Local Records Act to social media posts and published its "Managing Social Media & the State and Local Records Acts: A Quick Guide for Social Media Policy and Management" - even including relevant legal cases on the last page. This also may encompass private/non government social media pages created and updated by a government actor.
Finally, there is the Illinois Constitution, Article VIII, Section 1, which states "Public funds, property or credit shall only be used for public purposes" - and there is no public purpose for campaigning for elective office using public property, no matter what form the public property takes. Constitutional violations can be used as a predicate for Official Misconduct charges (People v Howard, IL Supreme Court).
What are the penalties for violating Section 5-15 of the Ethics Act?
- Look no further than Section 50-5 of the Ethics Act:
- CRIMINAL: A person is guilty of a Class A misdemeanor if the person intentionally violated any provision of Section 5-15 . . .
- Also included in penalties are discipline or discharge