AGO 96-F-012.

• Court: North Dakota

North Dakota Attorney General Opinions 1996. AGO 96-F-012. STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 96-F-12Date issued: May 16, 1996Requested by: Rod Backman, Director Office of Management and Budget- QUESTIONS PRESENTED - . I.Whether N.D.C.C. § 16.1-10-02, which prohibits the use of state property for political purposes, creates an absolute ban on the use of state capitol buildings and grounds for political purposes. II.Whether N.D.C.C. § 16.1-10-02 prohibits circulation of election petitions, including initiative and referendum petitions, in the state capitol buildings and on state capitol grounds- ATTORNEY GENERAL'S OPINIONS - It is my opinion that N.D.C.C. § 16.1-10-02 does not create an absolute ban on the use of state capitol buildings and grounds for political purposes; it does not prohibit "trivial" uses of state property, which would include mere presence on the capitol grounds or in capitol buildings. It is my further opinion that N.D.C.C. § 16.1-10-02 permits the use of state buildings and grounds for political purposes to the extent such activity is protected by the First Amendment. It is my opinion that N.D.C.C. § 16.1-10-02 does not prohibit circulation of initiative and referendum petitions on capitol grounds or in state buildings. It is my further opinion that the circulation of election petitions on capitol grounds or in state buildings, without more, does not constitute a prohibited "use" of state property under N.D.C.C. § 16.1-10-02. - ANALYSES - I. N.D.C.C. § 16.1-10-02 provides: Use of state services or property for political purposes. No person may use any property belonging to or leased by, or any service which is provided to or carried on by, either directly or by contract, the state or any agency, department, bureau, board, or commission thereof, for any political purpose. The following definitions must be used for the purposes of this section: "Political purpose" means any activity directly undertaken by a candidate for any office in support of his own election to such office; or aid and assistance to any candidate, political party, political committee, or organization, but does not include activities undertaken in the performance of a duty of state office. "Property" includes, but is not limited to, motor vehicles, telephones, typewriters, adding machines, postage or postage meters, funds of money, and buildings. However, nothing in this section may be construed to prohibit any candidate, political party, committee, or organization from using any public building for such political meetings as may be required by law, or to prohibit such candidate, party, committee, or organization from hiring the use of any public building for any political purpose if such lease or hiring is otherwise permitted by law. c. "Services" includes, but is not limited to, the use of employees during regular working hours for which such employees have not taken annual or sick leave or other compensatory leave. A. Trivial Use of State Property Does Not Violate N.D.C.C. § 16.1-10-02. The Legislature's primary intent in prohibiting the use of state property for political purposes is to prevent "a misuse of public funds or a financial misuse of public property for political purposes." Saefke v. Vande Walle, 279 N.W.2d 415, 417 (N.D. 1979). N.D.C.C. § 16.1-10-02 is not to be so broadly construed as to prohibit "trivial" uses of state property. Id. Although what constitutes "trivial" use of state property must be determined on a case-by-case basis, the North Dakota Supreme Court did provide some guidance in the Saefke decision. The court stated: It is a matter of common knowledge that governors and state officials are often interviewed and photographed in their respective offices during election campaigns or in regard to political matters. It would be unrealistic to contend that a governor could not answer political questions proposed by reporters while he sat at his desk in the State Capitol. Legislatures (sic) and state officials are shown sitting at their desks in campaign literature. State officials...