SIOUX FALLS, SD (KELO) — Polls will open on Election Day in one week, and Initiated Measure 27 is on the South Dakota ballot; it would legalize recreational marijuana for adults who are at least 21 years old.

When Sioux Falls Mayor Paul TenHaken attended a news conference and shared his concern about recreational marijuana on Oct. 26, it caught Melissa Mentele’s attention. She was sponsor of the successful 2020 ballot measure which legalized medical marijuana in the state; she is also a sponsor of Initiated Measure 27. Mentele herself held a news conference on Tuesday in Sioux Falls; she wants to know if TenHaken broke state codified law, which says that the state or a state agency can’t spend public money to influence the success or failure of a ballot question.

“We’re sending the public records request to each individual named that we’ve identified to have violated one of two of these or both of these laws, and then we’ll send all of them to the attorney general,” Mentele said.

The records requests, according to Mentele, will go out on Wednesday. She also referenced the state constitution, which says using public money in an unauthorized manner is a felony.

TenHaken sent KELOLAND News the following via text message: “Fortunately as an elected leader I don’t have to forfeit my First Amendment rights to say IM27 is terrible public policy and people should vote no.” He says his comments are in his personal capacity. KELOLAND News put the question on Tuesday afternoon to Neil Fulton, dean of USD’s Knudson School of Law.

Dan Santella: Can an elected official express support or opposition to a ballot question?

“In their personal capacity they can,” Fulton said. “The statute has a very specific carve-out for the protection of the First Amendment rights of elected officials to speak their mind on issues of public concern, but they have to do so in their personal capacity, not in their official capacity.”

Santella: Okay. So then how do I tell the difference if I’m a citizen?

“It’s a little bit fuzzy sometimes,” Fulton said.

The dean said the focus is on resources.

“What it’s really trying to prevent is really using those public resources to advocate,” Fulton said.