Zoo Funding Measures and Election Laws

Many zoos and aquariums are funded in whole or in part with public monies. Historically those funds have been provided from the general fund of local governmental entities. In recent years the availability of public funding has decreased. In response, supporters of zoos and aquariums in many areas have sponsored supplemental taxes specifically intended to support their local zoo.  Typically these special taxes are either a supplemental real estate assessment or a supplemental sales tax.  Implementation of these supplemental taxes generally requires a ballot measure.

It is important for zoo operators and promoters to bear in mind the exact legal structure of their organization and its affiliates when seeking such supplemental funding. As a general principle, public monies and public resources cannot be used to influence the results of elections. Separately public resources generally cannot be used for purposes such as political fund-raising and campaigning. Without careful consideration of its organizational structure and the ownership of its assets, a zoo or aquarium risks running afoul of election and campaign finance laws by supporting or otherwise becoming involved in these sorts of ballot measures.

Recently, Measure A1 in Oakland California was on the ballot for the purpose of imposing a supplemental real estate assessment to benefit the Oakland Zoo (sadly it appears that Measure A1 did not pass). The East Bay Zoological Society is a private nonprofit organization which runs the Oakland Zoo under a contract with the City of Oakland. Even though the Zoological Society is a private nonprofit organization, it has been accused of violating several different campaign finance laws in connection with its support of Measure A1.

The Zoological Society posted numerous signs supporting Measure A1 at the Zoo. However the Zoo is located on public property owned by the City of Oakland.   The Oakland City Attorney’s office asserted that placing signs in support of Measure A1 at the Zoo facilities was a violation of campaign finance laws which prohibit the use of public property to influence an election.  The City required the Zoo to remove those signs.

The Zoological Society has also been accused of several other separate campaign law violations.  The Zoological Society formed a pro Measure A1 action committee and listed the Zoo offices (located at the Zoo) as the headquarters of that action committee.  Campaign finance laws prohibit political campaigning on public property.  For example an incumbent candidate cannot use their legislative offices as a location for campaign activities.  The Zoological Society has been accused of violating campaign finance laws by locating its action committee headquarters at the Zoo.

In addition to legislative restrictions, the Oakland Zoological Society was accused of violating the terms of its contract with the City of Oakland.  That contract contains restrictions which prohibit the Zoological Society from using its  property for political purposes including political fundraising and campaigning. Separately, the contract prohibits the Zoological Society from using any City funds to finance political campaigns.   If the Zoological Society did not segregate funds received from the City, and could not document the specific source of the funds used to support Measure A1, the commingling of City and non-City funds arguably taints all Zoo funds. 

The accusations which have been leveled against the Oakland Zoological Society in connection with Measure A1 are unfortunate. The Zoological Society was acting in good faith and not in a secretive or deceptive manner in its support of this Measure.   It is a separate non-profit organization and its actions do not intuitively appear improper.   

Violation of the contractual restrictions contained in its agreements with the City of Oakland in this context are not that troubling by themselves   The Zoological Society's actions in support of Measure A1 probably did not violate the underlying spirit of the contractual restriction on use of City derived funds for political campaigning.  To the extent that these actions were a technical violation of its contract, the issue could be resolved by a simple agreement between the City and the Zoological Society.   The City of Oakland would be unlikely to impose any material sanctions on the Zoological Society.  

The Zoological Society operates the Zoo for the City of Oakland on a management contract basis and not a leased basis.   Other zoos located on public lands lease the property and operate a zoo independently.  Generally speaking leases are less likely to contain these sorts of contractual restrictions.   In this instance, the Oakland Zoo was more restricted than other facilities because of these additional contractual restrictions. 

The election law claims are of greater concern because0 even technical violations of election laws can have more serious consequences.  In addition to the adverse publicity from accusations of campaign finance laws, regulatory agencies can assess fines and other penalties for violation of campaign finance laws. Even more problematic if Measure A1 had passed these allegations could have provided a basis for anti –tax groups (or anti-zoo groups) to challenge the validity of the supplemental tax. 

At the time Measure A1 was under consideration, the Oakland Zoo was under attack by local groups which opposed a Zoo expansion program.   The alleged campaign law violations were reported to the City of Oakland by one of the anti-expansion groups.  This kind of special scrutiny for zoos and aquariums is not unusual.  In today’s environment any action by a zoo or aquarium may be subject to potential scrutiny by animal rights groups.   Any matter involving special taxes is also likely to be scrutinized by anti-tax groups.  Care should always be taken even if no particular opposition is on the horizon, but an organization that is already being challenged by an activist group should be mindful that any action they take will be subject to extra scrutiny.

Zoos and aquariums need to be mindful of these sorts of contractual and legislative restrictions on public fundraising activities. These organizations need to be aware of both their own internal structure as well as applicable restrictions. Best practices for a zoo contemplating support for a local tax initiative should include formation of an affiliated but legally separate fund-raising arm not directly controlled by the organization which operates the zoo. Zoo donors can contribute directly to the related entity to fund support measures.  Good planning and foresight could have eliminated some, if not all, of the problems that occurred in connection with Measure A1.