Fraternal Order of Police v. Montgomery County

ALAN M. WILNER J. (Retired, Specially Assigned), There are several issues presented in this appeal. The principal one is whether a charter county — Montgomery County in this instance — is authorized to use its human and fiscal resources to encourage the electorate of the county to support, or oppose, a ballot measure that may have a significant impact on the operations of the county government. The Circuit Court for Montgomery County said “no,” the Court of Special Appeals said “yes,” and we also shall say “yes.” BACKGROUND The Battle Over Effect Bargaining Sections 33-75 through 33-85 of the Montgomery County Code provide for collective bargaining between the county and the certified representative of county police officers below the rank of lieutenant which, in this case, is petitioner, Lodge 35 of the Fraternal Order of Police (FOP).

The provisions most relevant to this appeal are §§ 33-80 and 33-81. Section 33-80(a) lists the matters that are subject to mandatory collective bargaining. Section 33-80(b) lists certain rights and responsibilities of the county that are not subject to mandatory collective bargaining but, under subsection (c), may, in the county’s discretion, be discussed with the union. They include such things as determining the overall budget and mission of the police department; maintaining and improving the efficiency and effectiveness of the department; determining the overall organizational structure, methods, processes, means, job classifications, or personnel by which operations are to be conducted; directing and supervising employees; hiring, selecting, and establishing standards governing promotion of employees; transferring, assigning, and ⁴⁹⁶ scheduling employees; and taking actions to carry out the mission of government in situations of emergency.

The items listed in § 33-80(a), for the most part, are those common in collective bargaining laws — salary and wages; pension, retirement, and other benefits; hours and working conditions; a grievance procedure; and matters relating to the health and safety of employees. Prior to 2011, there was an additional matter (§ 33-80(a)(7)) that also was subject to mandatory bargaining — “the effect on employees of the employer’s exercise of rights listed in subsection (b).” That provision, insofar as Montgomery County was concerned, was unique to collective bargaining with the police union. It was not part of the county collective bargaining law pertaining to firefighters or county employees generally. Indeed, an attempt to add it to that law in 1986 was rejected by the County Council. 1 Subjection of the “effect” of the county’s exercise of rights reserved to it under § 33-80(b) to mandatory bargaining had particular significance because of § 33 — 81(c)(2), which dealt with the procedure for resolving impasses in bargaining over such “effects.” The procedure was a form of final offer arbitration.

Under that section, if the county notified FOP that it “intends to exercise a right listed in Section 33 — 80(b), the exercise of which will have an effect on members of the bargaining unit,” the parties were required to choose an impasse neutral, and, unless they were otherwise able to resolve the dispute, each was required to submit a final offer to the neutral. The neutral was then empowered to select what he or she believed was the more reasonable offer and, if appropriate, to provide retroactive relief. ⁴⁹⁷ Section 33-80(a)(7) was part of the original collective bargaining law for police officers enacted in 1982. The legislative history of that law indicates that the intent of the provision was not to subject the “decision to exercise a management right” to bargaining, but only the method of implementing that decision. The county personnel director at the time stated, by way of example, that a decision to lay off employees would not be subject to bargaining, but the decision as to whom to lay off first would be.

At least one councilmember disagreed with that interpretation, but an attempt to delete the provision failed. On January 31, 2011, the Montgomery County Organizational Reform Commission, created in 2010 by County Council Resolution to recommend changes that would increase the efficiency of county operations, filed its Final Report which, in Recommendation 21, urged that § 33-80(a)(7) be amended to make it consistent with the scope of bargaining for firefighters and other county employees. The Commission noted that, in practice, effect bargaining “has become the exception that makes most management decisions subject to bargaining” and “has hampered the ability of the Police Department to issue directives to govern how police officers must operate.” It added that “FOP has recently delayed the implementation of all directives by refusing to respond to them.” 2 Responding to the Commission’s recommendation, the County Council President introduced Bill No. 18-11 in June 2011 to amend § 33-80(a)(7) by limiting effect bargaining to the “amelioration” of the effect on employees when the county’s exercise of rights under § 33 — 80(b) “causes a loss of jobs in the [bargaining] unit.” The bill also deleted the special impasse procedure under § 33 — 81(c) with respect to effect bargaining. At the County Council hearing on the bill, the county Police Chief listed the kinds of administrative directives that were ⁴⁹⁸ subject to effect bargaining.

He estimated that bargaining over a minor issue normally required between two weeks and 90 days, without impasse arbitration, that impasse arbitration added an additional two to three months, and that a “significant” matter could take up to two years to resolve. He noted that the county’s attempt to create a mandatory electronic reporting system was delayed by three years of bargaining and that he still was required to send all communications to officers in paper form because they had refused to establish county e-mail accounts. The bill was passed by the County Council in July 2011 and was signed by the County Executive on August 1. Pursuant to § 112 of the Montgomery County Charter, the law took effect October 31, 2011 — 91 days after it was signed.

FOP promptly commenced an effort to refer the law to referendum pursuant to § 114 of the County Charter and Art. 11-F, § 7 of the Maryland Constitution. That drive ultimately proved successful. Petitioners were able to collect more than the required number of signatures (five percent of the qualified voters in the county), whereupon the county challenged the validity of several thousand of those signatures. That challenge was not resolved until August 12, 2012, when this Court concluded that the signatures were valid.

See FOP Lodge 35 v. Montgomery Co., 427 Md. 522 , 50 A.3d 8 (2012) (per curiam Order explained later in 436 Md. 1 , 80 A.3d 686 (2013)). Upon the filing of our per curiam Order, Bill No. 18-11 was slated to appear on the ballot at the November 6, 2012 general election as Question B, whether the bill should become law. A “yes” answer would sustain the law; a “no” vote would nullify it. In accordance with § 115 of the County Charter, the effect of the law which, as noted, had taken effect the previous October, was stayed pending the result of the referendum. 3 ⁴⁹⁹ Both sides commenced their respective campaigns to capture the hearts and minds of the county voters.

The County Executive, Isiah Leggett, believing that the requirement of effect bargaining had significantly hampered the ability of the Police Chief to efficiently manage the operation of the County Police Department, directed an effort by the County government to encourage county voters to vote “yes” on Question B. The effort was managed in large part by Patrick Lacefield, Director of the County Office of Public Information. Leggett authorized Lacefield to spend up to $200,000 from the funds appropriated by the County Council to his office in furtherance of the effort. Lacefield ultimately spent $122,350, which went for such things as putting ads in buses, displaying posters in county libraries and bumper stickers on county cars, purchasing ads in the local media, producing and distributing flyers and lawn signs, posting a “Vote for Question B” on the county website, including advocacy materials in its electronic newsletter distributed to about 125,000 county residents, mass mailings to more than 163,000 households in the county, employing political and media consultants, and hiring individuals to distribute campaign literature. Leggett enlisted the support of both the Democratic and Republican Central Committees.

The central message of the county was that FOP had been holding up a variety of policies necessary to the efficient operation of the Police Department, which raised the question of who should be running the Department — the Police Chief or the union leaders? FOP, which contemporaneously was running a vigorous campaign to defeat the new law, objected to the county’s advocacy and, in particular, to the use of county funds and personnel in furtherance of it. FOP complained to the American Civil Liberties Union, the County Inspector General, the State Prosecutor, and the United States Attorney for the District of Maryland, and when it received no relief from them, petitioners (FOP and two of its members, individually), filed this lawsuit on November 5, 2012 — one day before the ⁵⁰⁰ election. The next day, the voters approved Question B, 58 percent voting “yes” and 42 percent voting “no.” The Complaint The complaint was brought both individually and as a class action — the class being Montgomery County police officers below the rank of lieutenant — against the county, Leggett, and Lacefield.

As amended, it contained ten counts. Counts 1 through 6 sought declaratory and injunctive relief as follows: Count 1, against Leggett and Lacefield, sought a declaratory judgment that their conduct violated the campaign finance organization and activity requirements of Title 13, Subtitle 2 and the reporting requirements of Subtitle 3 of the State Election Law Article (EL) and a directive that they comply with those requirements. Count 2, also against Leggett and Lacefield, sought a declaratory judgment that their conduct violated Article 24, § 13-105 of the Maryland Code (since revised as § 1-304 of the Local Government Article (LG)). 4 Count 3, against Leggett and Lacefield, sought a declaratory judgment that their conduct violated §§ 405, 406, and 408 of the Montgomery County Charter, § 19-A-14 of the County Code, and Montgomery County Personnel Regulation 3-8. 5 ⁵⁰¹ Count 4, against the county, sought a declaratory judgment that the county had no power or authority to engage in electioneering and campaigning activities to promote the approval of Question B and that its actions were ultra vires and unlawful. Count 5, also against the county, sought a declaratory judgment that the electioneering and campaigning activities of the county in promoting the approval of Question B were in violation of Maryland law, including EL Title 13 and Art. 24 § 13-105 (LG § 1-304).

Count 6, against the county, sought a declaratory judgment that the county’s electioneering and campaigning activities were in violation of §§ 405, 406, and 408 of the County Charter, § 19-A-14 of the County Code, and County Personnel Regulation 3-8. In addition to the declaratory relief, each of the first six counts also sought costs and other unspecified general relief. Counts 7 through 10 also sought declaratory relief but money damages as well, as follows: Count 7 charged that Leggett’s use of county resources to promote the approval of Question B violated Article 6 of the Md. Declaration of Rights and constituted misconduct in office. 6 It sought a “determination” to that effect and an order that he reimburse the county for the cost of all of the electioneering and campaign activity undertaken by the county, plus reasonable attorneys’ fees: Count 8 sought the same relief against Lacefield. Count 9 purported to be a taxpayer cause of action seeking a declaratory judgment that Leggett’s and Lacefield’s activities in support of Question B constituted an impermissible use ⁵⁰² of public funds and demanded an accounting by them and reimbursement to the county.

Count 10, against the county, Leggett, and Lacefield, alleged that their activities violated “the State Constitutional rights” of FOP and its members and sought a declaration to that effect plus damages and reasonable attorneys’ fees. 7 The county contested the merits of the complaint and argued, in addition, that petitioners had no standing to bring the action, that the claims were barred by laches, and that, because FOP had participated in a campaign in connection with a 2010 ballot question, FOP was proceeding with unclean hands. The Judgment After a 10-day bench trial, the Circuit Court, on March 21, 2014, entered a memorandum and order, followed a week later by a series of declaratory judgments. The court rejected the defenses of lack of standing, laches, and unclean hands. The heart of its decision were declarations by the Court that the county, Leggett, and Lacefield had no authority to do what they did and that their conduct violated the State and local laws, as alleged by petitioners.

In that regard, it declared inapplicable the doctrine of “government speech,” which the county asserted permitted governmental entities to promote or oppose legislative measures, including ballot questions, that may affect its operations. With respect to Counts 7 through 10, however, which sought monetary relief, the court found that Leggett and Lacefield had qualified immunity, and it dismissed those counts. More specifically, the court entered declaratory judgments that: As to Count 1, Leggett and Lacefield constituted a “political committee” under EL Title 18, that they were required to comply with the organization and activity requirements of ⁵⁰³ Subtitle 2 and the reporting requirements of subtitle 3 of that Title, and that they failed to do so. As to Count 2, the activities of Leggett and Lacefield caused county employees to engage in the “partisan political campaign” to support Question B in violation of Art. 24, § 13-105.

As to Count 3, those activities of Leggett and Lacefield also violated § 405, 406, and 408 of the County Charter, § 19A-14(a), (c), (e), and (f) of the County Code, and County Personnel Regulation 3 — 8(b) and (d). As to Count 4, the county had no legal authority under Art. XI-A of the Maryland Constitution, or Art. 25A, § 5 of the Maryland Code (now part of LG Title 10) to engage in electioneering and the “partisan political campaign” to advocate voter approval of Question B. As to Count 5, the county was not subject to the Election Law Article. As to Count 6, the electioneering and “partisan political campaign” activities of the county in advocating voter approval of Question B violated §§ 405, 406, and 408 of the County Charter, § 19A-14(a), (c), (e), and (f) of the County Code, and County Personnel Regulation 3 — 8(b) and (d). In its March 21 Memorandum and Order, the court concluded that, because the conduct of Leggett and Lacefield, even if illegal, was discretionary in nature and did not violate “clearly established statutory or constitutional rights of which a reasonable person would have known,” they enjoyed qualified immunity from monetary damages.

For that reason, the court dismissed Counts 7 through 10. The Appeal Neither side was happy with the Circuit Court judgments, and so there were cross appeals. The respondents objected to the declaratory judgments denying the county’s authority to advocate for or against ballot issues that may have an impact on the operation of the county government and finding that Leggett and Lacefield violated the various laws in implement ⁵⁰⁴ ing the county’s efforts to have the law sustained. They also renewed their defenses of lack of standing and laches.

Petitioners were unhappy with the court’s finding of immunity on the part of Leggett and Lacefield. FOP was seeking reimbursement for the money it claimed it was required to spend in response to the county’s campaign. The Court of Special Appeals reversed the Circuit Court judgments. Montgomery Co. v. Fraternal Order of Police, 222 Md.App. 278 , 112 A.3d 1052 (2015).

It affirmed, however, the Circuit Court’s rejection of the county’s standing and laches defenses. The Court held that, as the certified representative of police officers under the rank of lieutenant, FOP had a fiduciary duty to its members to advocate against Question B, the passage of which would diminish their bargaining rights. That gave it a special interest in challenging the county’s use of public funds and employees to work for approval of that question, different in character and kind from that possessed by the general public. As to laches, the appellate court observed that petitioners were not seeking to overturn the election result, that FOP had pursued several non-judicial remedies before resorting to litigation, and that the declaratory and monetary relief sought was susceptible to post-election adjudication without prejudice to the county.

It concluded that the trial court did not abuse its discretion in finding that there was no unreasonable delay or any prejudice from the filing of the action on November 5, 2012. The major disagreement between the Circuit Court and the Court of Special Appeals, with respect to the county, centered on the contours of the government speech doctrine. The Circuit Court found that the doctrine does no more than exempt government speech from First Amendment scrutiny and does not constitute an affirmative authority for government to advocate and spend money on political campaigns. The Court of Special Appeals had a broader view of the doctrine.

Relying on a number of Federal appellate decisions that applied language from Johanns v. Livestock Mktg. Ass’n, ⁵⁰⁵ 544 U.S. 550 , 125 S.Ct. 2055 , 161 L.Ed.2d 896 (2005), the Court of Special Appeals concluded that the county’s speech was directly related to its governance, was in an area in which it had expertise, and concerned an issue about which the voters were entitled to hear its perspective in deciding how to vote, and therefore constituted government speech. Its ultimate conclusion was that the county “had inherent power to use properly appropriated funds for a governmental purpose, and that advocacy on a nonpartisan ballot measure pertaining to the County’s police force plainly was a governmental purpose.” Montgomery County, supra, 222 Md.App. at 315 , 112 A.3d at 1074 . The appellate court disagreed as well with the trial court’s conclusions regarding Leggett’s and Lacefield’s activity.

It concluded that Leggett and Lacefield did not constitute a political committee and were not required to comply with the requirements of EL Title 13, subtitles 2 or 3, that they did not violate Art. 24, § 13-105, §§ 405, 406, or 408 of the County Charter, § 19A-14 of the County Code, or County Personnel Regulation 3-8. In light of those holdings, it found the cross-appeal moot. As there were no violations, there was no need to consider immunity. Because of the important issues presented, we granted the petitioners’ petition for certiorari and, as well, respondents’ conditional cross-petition seeking review of the rejection of their standing and laches defenses.

DISCUSSION Standing and Laches This Court discussed the doctrine and requirement of standing most recently in Kendall v. Howard Co., 431 Md. 590 , 66 A.3d 684 (2013) and State Center v. Lexington Charles, 438 Md. 451 , 92 A.3d 400 (2014). We pointed out in Kendall that the requirement of standing “is an element in the larger question of justiciability and is designed to ensure that a party seeking relief has a sufficiently cognizable stake in the outcome so as to present a court with a dispute that is capable of ⁵⁰⁶ judicial resolution.” 431 Md. at 603 , 66 A.3d at 691 (quoting from Hand v. Mfrs. & Traders Trust Co., 405 Md. 375, 399 , 952 A.2d 240, 254 (2008)). We added in Kendall that, under Maryland common law, “standing to bring a judicial action generally depends on whether one is ‘aggrieved,’ which means whether a plaintiff has ‘an interest such that [he, she, or it] is personally and specifically affected in a way different from ... the public generally.’ ” Id. at 603 , 66 A.3d at 691 . In a nutshell, a person — individual or organization— has no standing to bring an action in court unless the person has suffered some kind of special damage from the alleged wrong differing in character and kind from that suffered by the general public.

Kendall was a case where there was no such special damage. The plaintiffs were seeking to have the court annul a number of county land use decisions, in the form of legislative resolutions and ordinances, and administrative decisions that they claimed were unauthorized by, and indeed were in violation of, the county charter. They showed no special harm, however, to their property or to themselves as taxpayers, but merely “an abstract, generalized interest in the County’s compliance with [its Charter], which is shared by all members of the general public in [the county],” and that was not enough to provide standing. Id. at 615 , 66 A.3d at 698 .

That is not the case here. Although all citizens living in Montgomery County have a general interest in assuring that the county government does not exceed its legitimate authority and does not expend funds or the labor of its employees for unlawful purposes, petitioners had a more specialized interest in sustaining effect bargaining and assuring that the county did not use unlawful means to repeal that provision. FOP had a statutory duty under § 33-78(c) of the County Code to represent fairly and without discrimination all police officers in the bargaining unit. Part of that duty, and, under § 33-80(a)(7), was to bargain collectively on the effect of the county’s exercise of any of its otherwise exclusive rights under § 33-80(b).

As the legislative history of that provision indicates, it greatly expanded the scope of mandatory bargaining ⁵⁰⁷ in favor of the police officers in the bargaining unit and thus directly affected, in a positive way for them, the conditions of their employment. Both the police officers and FOP, as their exclusive bargaining agent, having successfully petitioned the repeal to referendum, had a clear special interest in protecting that right. In such a political battle, that special interest extended to requiring its formidable opponent to act lawfully. In that regard, our decisions in Teachers Union v. Board of Education, 379 Md. 192 , 840 A.2d 728 (2004) and Patterson Park v. Teachers Union, 399 Md. 174 , 923 A.2d 60 (2007) are particularly relevant.

In Teachers Union, the teachers union, being the exclusive bargaining representative for public school teachers in Baltimore City, filed suit to prevent the State Board of Education from turning control over three public schools in the City to a private company, including the power to hire, assign, discipline, and dismiss teachers in those schools and thereby remove those employees from the scope of the labor agreement that the union had with the City school board. The State Board moved to dismiss the complaint on the ground that the union had no special interest in the Board’s action and therefore no standing to bring the lawsuit. We disagreed, noting that the effect of the turnover was to shrink the size of the bargaining unit and thereby diminish the negotiating power of the union vis a vis the City school board. We followed that approach as well in Patterson Park .

The Circuit Court and the Court of Special Appeals were correct in holding that the petitioners had standing to pursue this lawsuit. In arguing laches, respondents note that petitioners certainly were aware of the county’s efforts to sustain the law on referendum by September 20, 2012, when FOP complained to the County Inspector General about what Leggett and Lacefield were doing, yet they did not file suit until November 5 — a month-and-a-half later and only a day before the election — and did not succeed in serving respondents until Decern ⁵⁰⁸ ber 31. They rely on Ross v. Board of Elections, 387 Md. 649 , 876 A.2d 692 (2005). Except for the general discussion of laches in our Opinion, Ross is wholly distinguishable and of no assistance to the petitioners.

Glenn Ross was an unsuccessful candidate for a seat on the Baltimore City Council. Eleven days before the election, running as the Green Party candidate, he asked the State Board of Elections to disqualify the Democratic Party nominee, Paula Branch, on the ground that, because of the failure of her campaign to timely file campaign finance reports, she was not qualified to be on the ballot. The Board, without opining whether that failure constituted a ground for disqualification, declined to remove Branch from the ballot, and she proceeded to defeat Ross soundly, garnering 80 percent of the vote. Three days after the election, Ross filed suit to enjoin the City Board of Canvassers from certifying Branch as the winner.

Cross motions for summary judgment were filed. Ross’s was denied, whereupon he sought a temporary restraining order to preclude Branch from taking the oath of office. That, too, was denied, and Branch was duly sworn into office. As the case proceeded, the State Elections Board moved to dismiss on the ground that the suit was not timely under two provisions of the Election Code — EL §§ 9-209 and 12-202. 8 Branch claimed that the action was barred by laches.

The Circuit Court accepted the Board’s position and dismissed the action as being untimely under EL § 9-209. This Court found that EL § 9-209 was not a proper basis for dismissing the action but that § 12-202, providing a 10- ⁵⁰⁹ day window for seeking judicial review, was applicable. Because the action was an equitable one, however, laches, rather than direct application of the statutory time period, was the proper focus. Laches, we said, was an ancient defense in equity against stale claims.

It was a necessary invention because, historically, statutes of limitations did not apply to claims in equity, although, as a general rule, courts sitting in equity will apply statutory time limitations in determining, at least as an outside limit, whether laches has run. Ross, supra, 387 Md. at 670 , 876 A.2d at 704-05 . We pointed out that there was no inflexible rule as to what constitutes, or does not constitute, laches, but its existence must be determined by the facts and circumstances of each case. Id. at 669 , 876 A.2d at 669 .

Confirming language from Buxton v. Buxton, 363 Md. 634 , 770 A.2d 152 (2001), we added that, where the delay is of lesser duration than the statute of limitations, the defense of laches “must include an unjustifiable delay and some amount of prejudice to the defendant.” Ross, supra, 387 Md. at 669 , 876 A.3d at 704. Although declining to adopt a per se rule that any claim “against a state electoral procedure must be expressed expeditiously,” we did apply laches against Ross, noting that the Court had “imposed a duty on parties having grievances based on election laws to bring their complaints forward for preelection adjudication when possible” and concluding that Ross had not done so. Id. at 671-72, 876 A.2d at 705 . Ross was aware well before the election that Branch was a certified candidate and that she had failed to file campaign finance reports timely.

His decision to wait until after the election to file his suit was (1) unnecessary, (2) prejudiced Branch and the voters of the district, who rightfully relied on the State Board’s certification of Branch as a qualified candidate, and (3) prejudiced the State Board as well. That is not the case here. Unlike Ross, petitioners in this action were not seeking to overturn the results of the election. They accept Bill No. 18-11 as valid law.

Their action is solely ⁵¹⁰ to seek monetary redress for what they regard as unlawful activity by the county, Leggett, and Lacefield that was prejudicial to them and, through their quest for declaratory judgments, to preclude the county and its officials from engaging in that conduct in the future. As the Court of Special Appeals noted, there was no prejudice to respondents, or anyone else, from petitioners’ waiting until the eve of the election to file their suit. The delay itself was not inordinate, and petitioners’ claims can be adjudicated as easily after the election as they could have been before. Indeed, given the considerable amount of discovery necessary to set forth all of the conduct of the respondents and the time required for the parties to assemble their respective cases, navigate through the motion practice, for the court to schedule a trial that took ten days to complete, not to mention post-trial motions and appeals, it likely would have been impossible to resolve the action prior to the election even had the lawsuit been filed near the end of September.

The Circuit Court and the Court of Special Appeals were correct in rejecting the defense of laches. Government Speech: Scope and Limitations The government speech defense is particularly germane to Count 4, which broadly challenged the county’s authority to engage in political campaigns of any kind, but it has ripple effects on the other counts as well. As we shall explain, in the absence of clear and specific prohibitions under State or Federal law, it provides an affirmative basis for government entities to inform the public of their views regarding legislative measures that may significantly affect their operations or programs, including ballot questions. The term “government speech,” in the context of what is before us, is relatively new and arose as part of First Amendment jurisprudence.

The broader question of whether, and to what extent, governments or government officials or agencies are permitted to use public funds or government employees to support or oppose ballot measures or pending legislation that may affect the operations of the government or the agency is ⁵¹¹ not new. The answer to that question traditionally has depended on whether such advocacy, ranging from simple informational bulletins to more aggressive political campaigns, is authorized or prohibited by the assortment of laws governing the agency or the election process. The early cases dealing with the broader question often involved challenges in State court proceedings to efforts by local school or public works agencies to support bond authorizations on the ballot — authorizations needed, in the agency’s view, to allow it to perform its legitimate function. The courts looked closely at the laws governing the agency to determine whether they authorized the expenditure of appropriated money for that purpose and tended to interpret those laws very narrowly.

The narrow construction arose, in part, from the view then current, commonly referred to as Dillon’s Rule (derived from propositions espoused in 1 Dillon, Municipal Corporations, § 237, at 448-50 (5th ed.1911)), that municipal corporations had no inherent powers but only those granted in express words or that necessarily were implied in or incident to those express powers. At least in the early period, there were few, if any, statutes expressly authorizing municipal agencies to advocate for or against ballot measures. In some instances, that narrow focus was influenced as well by a deep concern whether that kind of advocacy was ever a proper function of government. In enjoining such an effort, a New York trial court expressed the view that “[i]t would