Ohio State Auditor David Yost Doesn’t Understand How Private Businesses Work.
In a series of demands, news releases, and now a draft finding for recovery, State Auditor David Yost has indignantly opined that online school ECOT had no right to use public money on television ads that criticized the Ohio Department of Education. The problem, however is that while all of this makes for flashy headline for the constantly headline seeking Yost, ECOT didn’t write a check nor did Altair Learning Management or IQ Innovations. In fact, NO public money was utilized. Period.
None of the parties involved were ECOT employees (or agents of ECOT for that matter) and no ECOT employees or monies could be directly linked to the advertisement. In fact, the only link the auditor could muster was that the entity that paid for the advertisement had provided services to ECOT in the past. That’s a weak link to ascertain. A private business is a private business whether or not some of its clients are public entities. Doing business with the government does not mean you have to turn over your entire business’s record and all its spending. (Just ask Governor Kasich about that with JobsOhio.) Nor does it mean that because you spend money to protect your client (your business interests) that the money was somehow “funneled.” If there was a check cut from ECOT to a business for the exact amount and for the specific reason (i.e. “advertisement”) in question, that would be one thing. But no such transaction exists.
But even IF ECOT had directly paid for the ad and airtime -which again, it did not- it would have been 100% legal.
In seeking to punish ECOT and/or its vendors for this permitted activity, Yost is apparently relying upon a provision in Ohio law that prohibits Ohio municipalities and school districts from spending resources on political or ballot issue campaigns. Ohio Revised Code Section 9.03 (C)(1)(e) specifically prohibits a school district or local government from publishing, distributing, or otherwise communicating information that “Supports or opposes the nomination or election of a candidate for public office, the investigation, prosecution, or recall of a public official, or the passage of a levy or bond issue.”
Likewise, section (D) prohibits using public funds directly or indirectly for the benefit of a campaign committee, political action committee, a legislative campaign fund, a political party, a campaign fund, a political committee, a separate segregated fund, or a candidate. But the ECOT-related ad did none of these things.
In fact, the plain language of this same statute clearly authorizes the kind of lobbying activity that was reflected in the ECOT-related ad. Section (B) reads that “the governing body of a political subdivision may use public funds to publish and distribute newsletters, or to use any other means, to communicate information about the plans, policies, and operations of the political subdivision to members of the public within the political subdivision and to other persons who may be affected by the political subdivision.” ECOT was the largest single school district in the state and its students could have come from any county in the state.
In simpler terms, political activity is either donating to candidates or committees, or running ads that either oppose or support a candidate or a ballot issue. Lobbying activity, on the other hand, is when an entity petitions their government for a change in policy. There’s a big difference between the two, although they both may use similar means to accomplish their objectives.
For example, the Ohio Coalition for Equity and Adequacy run by Bill Phillis, and funded by public money through dues from school districts, produced a nearly 16 minute video that advocates for more money for Ohio schools. The video urged viewers to call the Governor, the Ohio Senate, and the Ohio House and adopt the Coalition plan for more school funding.
In 2011, the Ohio Healthcare Association, which lobbies for nursing homes that receive state and federal Medicaid funds, ran ads attacking Governor Kasich for attempting to cut Medicaid payments to their member companies. Governor Kasich called the ads “bullying”, but no one suggested that they were illegal.
Likewise, a search of the JLEC lobbyist directory using the word “school” will show that a whopping 62 local school districts, charter schools, and school associations have retained high priced Ohio lobbyists to advocate for their positions. Take Matt Borges, for example. In 2017 he signed a contract with Perry City Schools to lobby for them at a rate of $5,000 per month.
Even Governor John Kasich has participated in these types of activities. In 2011, the Governor’s Office produced a public service announcement that he starred in to promote awareness of human trafficking in Ohio.
And in 2014 Auditor David Yost issued an opinion where he stated that public officials may use public funds to conduct tele-townhalls. That draft opinion can be found here.
Perhaps these reasons are why David Yost has been less than forthright in exactly how ECOT is breaking Ohio law. In fact, he argues in his draft finding that ECOT violated the law because the ads were for an “improper public purpose”, a rather a vague statement indeed.
The simple and inescapable fact is that the ECOT advertising in question was constitutionally protected activity of a school district in Ohio petitioning the state government. You can’t just declare an ad illegal because you simply don’t like the content. If you do, then you must surely either hate, or simply not understand, the First Amendment and what it stands for.