CHAPEL HILL — The definition of endorsement has drawn fire in two Triangle tax referendums this fall.
Both Orange and Durham counties have a quarter-cent sales tax on Tuesday's ballot. Durham has an additional half-cent tax proposal to fund transit projects.
County officials defend their campaigns as educational. The John Locke Foundation, which promotes limited government, says the campaigns, which include fliers and a commercial, constitute illegal endorsements.
Orange County has allocated $84,500 in taxpayer money to put the sales tax on the ballot, including $50,000 to tell voters how it would benefit residents.
Durham's referendum campaigns are bankrolled by two private committees, which together have spent about $8,311.
Daren Bakst, director of legal and regulatory studies at the John Locke Foundation, cites an Orange County video and a flier distributed by Durham Public Schools as examples of illegal endorsements. He has asked the counties to remove such information from their websites and to stop disseminating it to students and their parents.
Orange County's video, which cost taxpayers $2,500, shows a mother and daughter discussing the referendum at the breakfast table. The mom explains the tax will benefit the department of economic development, which creates jobs and helps businesses grow.
"This video may be the most egregious endorsement of any sales tax by a governmental unit," Bakst said. "No person could reasonably conclude that Orange County government does not support the sales tax after watching this video."
The Orange County school district's website also featured a county PowerPoint presentation explaining how the tax revenue would benefit its schools. Michael Gilbert, a spokesman for Orange County Schools, said the district did not violate the law, but removed the link to the presentation "to avoid any disputes that would draw attention from the referendum."
A flier on the Durham Public Schools website says, "Quarter Cent Sales Tax = Support for Durham Schools."
"Any reader of the flier certainly will understand that DPS supports the sales-tax increase," Bakst said. "The only possible way to reach a different conclusion would be to believe that a school district does not want to support its own schools. That's absurd."
DPS does not plan to remove the flier from its website.
DPS Superintendent Eric Becoats said the flier is meant to be educational.
"The verbiage on the ballot does not mention public schools and can be a source of confusion," Becoats said. "It is our intention to inform voters that this particular sales and use tax revenue, if approved, would be directed entirely to public education as committed by our county commissioners."
No case law
Last year, the General Assembly passed a law that says counties, municipalities and school boards "shall not use public funds to endorse or oppose a referendum, election or a particular candidate for office."
Because the 2010 law is so new, there is no case law defining what it means to endorse, said Frayda Bluestein, professor of public law and government in the UNC-Chapel Hill School of Government.
Local governments must have decided they need funding for a reason, however, which is why they've asked voters for it by putting it on the ballot, Bluestein said. "It can't be that they have to be completely neutral because they have decided this is something they need," she said.
Staff writers Jim Wise and Lynn Bonner contributed to this report