concurring.
I concur that defendants are not entitled to summary judgment because there are genuine issues of material fact to be tried. A few additional comments appear advisable. The majority correctly states that some courts have drawn a distinction between neutral education and advocacy. It is an important distinction. Public bodies must provide information to voters regarding ballot measures affecting their programs, whoever proposes the ballot measure, both to inform the electorate and to negate a charge of secret, unresponsive government.
It has long been recognized, although the statutes here involved are not new, that a school district, for example, may use public funds to inform district voters of facts pertinent to a school tax levy election. See 35 Op Att’y Gen 169 (Or 1970). The information that public bodies provide, however, must be fairly presented, and public funds cannot be used to advocate that a citizen vote in a particular way at the election or otherwise to “aid, promote or oppose” a ballot measure. See ORS 260.432; Porter v. Tiffany, 11 Or App 542, 502 P2d 1385 (1972).
A school district, for example, can have little hope for public support if it refuses to provide information about a proposed tax levy. Judge (now Justice) Brennan commented on this matter in Citizens to Protect Public Funds v. Board of Education, 13 NJ 172, 98 A2d 673 (1953).
“There is no express statutory provision authorizing the expenditure by boards of education of public funds in the manner done by the defendant board for the printing and distribution of the booklet. The power, however, within the *408limits hereafter stated, is to be found by necessary or fair implication in the powers expressly conferred * * *.
“The power so implicit plainly embraces the making of reasonable expenditures for the purpose of giving voters relevant facts to aid them in reaching an informed judgment when voting upon the proposal. In these days of high costs, projects of this type invariably run into very substantial outlays. This has tended to sharpen the interest of every taxpayer and family man in such projects. Adequate and proper school facilities are an imperative necessity, but the large additional tax burden their cost often entails concerns taxpayers that they be obtained with the maximum economy of cost. At the same time the complexities of to-day’s problems make more difficult the task of every citizen in reaching an intelligent judgment upon the accommodation of endurable financial cost with the acknowledged need for adequate education. The need for full disclosure of all relevant facts is obvious, and the board of education is well qualified to supply the facts. But a fair presentation of the facts will necessarily include all consequences, good and bad, of the proposal, not only the anticipated improvement in education opportunities, but also the increased tax rate and such other less desirable consequences as may be foreseen. If the presentation is fair in that sense, the power to make reasonable expenditure for the purpose may fairly be implied as within the purview of the power, indeed duty, of the board of education to formulate the construction program in the first instance. And the choice of the media of communication to give such facts, whether by the use of a booklet, as in this case, radio broadcast, newspaper advertising, or other means, is within the discretion, reasonably exercised, of the board of education. * * *” 98 A2d at 677
Among the facts which should be determined at trial are whether the material that the county distributed was “promotional” or “informational.” The content and use of the material prepared and distributed with the expenditure of public funds or public employe time must be examined. The distinction to which the majority refers may be decisive.