: Brooke Miles,
Executive Director, Office of the Governor
Subject: Request for an advisory
opinion about reporting and allocating the cost of collateral
use of state-owned equipment in connection with a public
officer’s official duties and a public officer’s
political candidate campaign activities.
You have requested an advisory opinion regarding
whether APOC reporting and allocating are required when
a public official, using state equipment, combines official
state business with campaign activity. You have represented
that the principal purpose of the travel is state business
and any campaign activity is secondary or collateral to
the principal official business purpose of the trip. Although
unstated in your letter, it was clear from your statements
to the Commission on September 20 that your request concerns
The short answer is that reimbursement and
some reporting is required. The ban in AS 15.13.145 against
the use of state money to influence the outcome of an election
of a candidate for state office is not violated when a public
official seeking reelection makes a detour during travel
on official business for a campaign activity if the official’s
campaign reimburses the expense of that travel at a commercially
reasonable rate within a commercially reasonable time. The
state is not required to report the transaction as a campaign
contribution or expenditure, but the campaign must report
the reimbursement as a campaign expense. Although the law
does not provide expressly for allocation, we do not rule
out the possibility of allocating the expense between the
official business and campaign activity to determine a rate
for reimbursement if the amount and timing can be defended
as commercially reasonable.
AS 15.13.074. Prohibited contributions.
(f) A corporation, company, partnership, firm, association,
entity recognized as tax-exempt under 26 U.S.C. 501(c)(3)
(Internal Revenue Code), organization, business trust or
surety, labor union, or publicly funded entity that does
not satisfy the definition of group or nongroup entity in
AS 15.13.400 may not make a contribution to a candidate,
group, or nongroup entity.
AS 15.13.145. Money of the state
and its political subdivisions.
(a) Except as provided in (b) and (c) of
this section, each of the following may not use money held
by the entity to influence the outcome of the election of
a candidate to a state or municipal office:
(1) the state, its agencies, and its corporations;
(2) the University of Alaska and its Board of Regents;
(3) municipalities, school districts, and regional education
attendance areas, or another political subdivision of the
(4) an officer or employee of an entity identified in (1)
– (3) of this subsection.
(b) Money held by an entity identified in
(a)(1) – (3) of this section may be used to influence
the outcome of an election concerning a ballot proposition
or question, but only if the funds have been specifically
appropriated for that purpose by a state law or a municipal
(c) Money held by an entity identified in
(a)(1) – (3) of this section may be used
(1) to disseminate information about the time and place
of an election and to hold an election;
(2) to provide the public with nonpartisan information about
a ballot proposition or question . . . .
(d) When expenditure of money is authorized by (b) or (c)
of this section and is used to influence the outcome of
an election, the expenditures shall be reported to the commission
in the same manner as an individual is required to report
under AS 15.13.040.
AS 15.13.400. Definitions
. . .
(A) means a purchase, payment, promise or obligation to
pay, loan or loan guarantee, deposit or gift of money, goods,
or services for which charge is ordinarily made and that
is made for the purpose of influencing the nomination or
election of a candidate, and in AS 15.13.010(b) for the
purpose of influencing a ballot proposition or question,
including the payment by a person other than a candidate
or political party, or compensation for the personal services
of another person, that are rendered to the candidate or
(B) does not include
(i) services provided without compensation by individuals
volunteering a portion or all of their time on behalf of
a political party, candidate, or ballot proposition or question;
(ii) ordinary hospitality in a home;
(iii) two or fewer mass mailings before each election by
each political party describing the party's slate of candidates
for election, which may include photographs, biographies,
and information about the party's candidates;
(iv) the results of a poll limited to issues and not mentioning
any candidate, unless the poll was requested by or designed
primarily to benefit the candidate; or
(v) any communication in the form of a newsletter from a
legislator to the legislator's constituents, except a communication
expressly advocating the election or defeat of a candidate
or a newsletter or material in a newsletter that is clearly
only for the private benefit of a legislator or a legislative
. . . .
(16) “public funded entity” means a person,
other than an individual, that receives half or more of
the money on which it operates during a calendar year from
government, including a public corporation.
2 AAC 50.250. Contributions.
(a) In AS 15.13 and this chapter, except as otherwise provided
in this section, "contribution"
(1) has the meaning given in AS 15.13.400;
2 AAC 50.356. Use of public money.
(2) includes a
(A) subscription, advance, transfer, forgiveness of all
or part of a debt, relaxation of credit, or anything of
value made or provided by a person, group, or nongroup entity
for the purpose of influencing an election for state or
municipal office or influencing the passage or defeat of
a ballot proposition or question; and
(3) does not include . . .
(B) personal contribution as described in 2 AAC 50.254;
(G) provision of a service or facility to a candidate, group,
or nongroup entity if the entity providing the service or
facility is paid at a commercially reasonable rate within
a commercially reasonable time or makes the service or facility
available to all candidates for a particular office;
(a) Funds are specifically appropriated
for the purposes of AS 15.13.145(b) if the appropriating
body provides notice on the public record that the funds
will be used to influence the outcome of an election.
(b) In the absence of a specific appropriation,
an officer or employee of an entity who is identified in
AS 15.13.145(a)(4) may use money held by that entity to
communicate about a ballot proposition or question if the
communication is made in the usual and customary performance
of the officer’s or employee’s duties.
(c) For the purposes of AS 15.13.145(c)(2),
information is nonpartisan if it does not advocate a position
in an election. Nonpartisan information includes the official
language of a ballot question, a neutral ballot summary,
if provided for all candidates seeking a particular office,
the candidates’ names, contact information, or statements.
(d) If an entity or individual identified
in AS 15.13.145(a)(1) – (4) uses money held by the
entity to make an election-related expenditures, the expenditure
must be disclosed on a report of contributions or independent
expenditures under AS 15.13.040(d) and (e) unless the expenditure
is made only to disseminate information about the time and
place of an election or to hold an election.
We understand that the Governor has traveled
for mixed purposes, combining official business with partisan
campaign activity during his reelection campaign. Allowing
the Governor to travel for both official and campaign business
reconciles the need for the Governor to be available at
all times to conduct the public’s business with the
political reality of running for reelection. The question
of the Governor’s travel for mixed purposes was addressed
under the Alaska Executive Branch Ethics Act (“the
Ethics Act”) earlier this year. The Department of
Law issued an opinion providing that the Ethics Act’s
prohibition against the use of state equipment for partisan
political activity did not stop a public officer from participating
in collateral partisan political activity after traveling
on state aircraft for official business if the principal
purpose of the travel was the performance of official duties.
However, it also indicated that travel for the principal
purpose of partisan political activity would violate the
Act and that reimbursement to the state would not cure the
violation. Your question now is how travel allowed under
the Ethics Act should be reported, and whether the expenses
should be allocated, under the campaign disclosure law.
Thus, for purposes of this opinion, we assume that the principal
purpose of the travel is official
business and that campaign activity is secondary or collateral
to that principal purpose.
The Alaska Public Offices Commission administers
the campaign disclosure law, and it is empowered to issue
advisory opinions concerning the application of that law.
The campaign disclosure law, similar to
the Ethics Act, limits the use of state resources for election
campaigns. The limitation, which appears in AS 15.13.145(a),
is on the use of “money held by” the state and
its agencies to influence the outcome of the election of
a candidate. The limitation clearly prohibits cash contributions
and expenditures to influence the election of a candidate.
Whether it extends to in-kind contributions, such as the
use of state equipment or services, is less clear. Although
the legislative history on AS 15.13.145 is not particularly
helpful, we were able to rely upon other provisions of the
law to guide our interpretation of AS 15.13.145(a). We have
concluded that AS 15.13.145(a) prohibits the use of state
equipment or services if the use would be prohibited in
the campaign finance law as a contribution or expenditure.
The campaign disclosure law lists the entities
that may make contributions and expenditures for or against
candidates and the state is not listed. AS 15.13.065 names
only individuals, groups, nongroup entities, and political
parties as able to make contributions. “Contribution”
is broadly defined in AS 15.13.400(4)(A) to include the
provision of goods and services, among other things, if
the purpose is to influence the nomination or election of
a candidate. The meaning of “contribution” is
further defined in 2 AAC 50.250(a)(3), which states, in
part, that the term “contribution” excludes
provision of a service or facility to a
candidate, group, or nongroup entity if the entity providing
the service or facility is paid at a commercially reasonable
rate within a commercially reasonable time or makes the
service or facility available to all candidates for a particular
office . . . .
Because other sections of the campaign disclosure
laws prohibit the state from making contributions and expenditures,
to be consistent, the restriction on the “use of [state]
money” in AS 15.13.145(a) to influence the election
of a candidate also should prohibit the state from providing
an in-kind contribution such as travel. Relying on AS 15.13.400(4)(A)
and 2 AAC 50.250, we conclude that the state may not provide
travel services benefiting the governor’s reelection
campaign unless the campaign pays for the service or unless
the state makes the service available to all candidates.
From this analysis it follows that, if the governor’s
reelection campaign reimburses the state at a reasonably
commercial rate within a commercially reasonable time for
state-provided travel, state-provided travel would not be
a prohibited contribution under AS 15.13.145(a).
Because reimbursement is required to avoid
a violation of AS 15.13.145(a), we must address what constitutes
a commercially reasonable rate for reimbursement. There
are probably many possibilities. One obvious method might
be to determine the state’s actual costs and reimburse
those costs. Another method is suggested in federal regulation,
which addresses how to evaluate the cost of noncommercial
travel for purposes of determining its value as a contribution
in federal elections. The regulation applies commercial
travel rates. A candidate using an airplane owned or leased
by a corporation or individual has not received a contribution
from the corporation or individual if the candidate pays
for that travel at the prescribed rate within seven days
of traveling. The rate paid is the cost of the lowest unrestricted
and non-discounted first class air fare, if first class
air fare is available. If first class air fare is unavailable,
the rate is the lowest unrestricted and non-discounted coach
class air fare. If neither first class nor coach commercial
travel is available, the campaign must pay the charter rate
for a comparable aircraft. 11 CFR § 100.93(c). Failure
to pay for the travel results in an in-kind contribution
from the provider. Using either of these methods for determining
the value of state-provided travel would satisfy the requirement
of payment at a commercially reasonable rate.
Both of these methods require the campaign
to absorb the full cost of the travel, even though the purpose
of the travel was mixed. You asked whether allocation is
required. It is not. The campaign finance laws do not address
allocating the expenses between official and campaign activities
when paying for a service or facility, but we do not believe
the law’s silence necessarily precludes allocation.
The question under 2 AAC 50.250(a)(3)(G) is whether, under
the circumstances, allocation is commercially reasonable.
We believe that it could be. For example, determining the
actual expenses and allocating those expenses between activities
and reimbursing the state for the campaign’s share
should satisfy the requirement in the regulation that payment
be at a commercially reasonable rate.
In this opinion we have considered a couple
of options to compute payment for state travel that would
satisfy 2 AAC 50.250(a)(3)(G) and avoid AS 15.13.145(a)’s
prohibition against the state’s use of money to influence
the election of a candidate. There are likely other payment
methods that would be reasonable. Determining a method for
computing payment seems better suited to the regulatory
process, but until the Commission is able to adopt regulations,
we provide the following method as commercially reasonable:
an unrestricted, nondiscounted first class fare for any
traveler who participates in the secondary or collateral
campaign activity. If first class commercial travel is unavailable,
payment should be at the fare for unrestricted, nondiscounted
coach commercial travel. Charter rates for a comparable
aircraft would be appropriate if commercial travel is unavailable
to the particular destination. We do not preclude other
methods, however, and leave the option open to the campaign
and affected state agency to propose a rate for reimbursement
that can be defended as commercially reasonable.
The final question is whether the use of,
and reimbursement for, state equipment must be reported.
AS 15.13.145(d) requires the state to report any authorized
use of state money “to influence an election.”
We have concluded that the use of state equipment for an
official purpose that may have the collateral or incidental
effect of assisting an official’s reelection campaign
is not prohibited under AS 15.13.145(a) if it is reimbursed
at a commercially reasonable rate and time. Because the
expenditure is not intended or used “to influence
an election,” the state is not required to report
it under AS 15.13.145(d).
This does not mean, however, that the campaign
fund or candidate paying for the travel is exempt from reporting.
The reimbursement would be covered as a campaign expenditure
and be reported as provided in AS 15.13.040.
If an elected public official travels for
the principal purpose of official business and also engages
in collateral campaign business while traveling, the prohibition
in AS 15.13.145(a) against the use of state money to influence
an election is not violated if the campaign pays a commercially
reasonable rate for the travel within a commercially reasonable
Only the Commission has the authority to
approve an advisory opinion. 2 AAC 50.905. The Commission
will rule on staff’s proposed advice at a teleconferenced
meeting on Tuesday, October 31. If you wish to testify when
the Commission considers this matter, please let me know.
The Commission may approve, disapprove, or modify the proposed
advice. An advisory opinion must be approved by an affirmative
vote of at least four members or it will be considered disapproved.
Both staff’s proposed advice and the Commission’s
final advisory opinion apply only to the specific facts
and activity for which the advice was requested.
The Commission approved the advice in this letter
by an affirmative vote of 5-0 on October 31, 2006. The advice
in this opinion applies only to the specific activity for
which the advice was requested.
A copy of the original letter requesting the above
advisory opinion is available upon request at the Alaska
Public Offices Commission. 907/276-4176.
1. In contrast to AS 15.13.145(a), the limitation in the
Ethics Act is quite explicit. AS 39.52.120(b)(6) prohibits
“the use of state funds, facilities, equipment, services,
or another government asset or resource for partisan political
2. During a hearing before the House State Affairs Committee
on House Bill 368, Representative David Finkelstein explained
the intent of proposed section 15.13.145:
REPRESENTATIVE FINKELSTEIN moving forward referred the committee
members to Sec. 15.13.145, "MONEY OF THE STATE AND
ITS POLITICAL SUBDIVISION." He explained the approach
was to allow money spent by a government entity on ballot
propositions based on the approval of the local government
body. He cited a civic concern was a possible issue, however.
The subsection banned contributions from government entities
to candidates. He explained there was a case where a local
government body gave a contribution to a candidate. He explained
most felt it was inappropriate.
(Hse St. Affairs Comm. (Feb. 29, 1996) (considering the
House version of SB 191, which became Ch. 48 SLA 96).)
3. “Groups” and “nongroup entities”
are defined in AS 15.13.400 and do not include government
4. AS 15.13.067 limits the making of expenditures to elect
candidates to candidates, individuals, groups, and nongroup
5. Expenditure” for the purpose of influencing the
nomination or election of a candidate is defined as the
“transfer of money or anything of value, or promise
or agreement to purchase or transfer money or anything of
value.” AS 15.13.400(6)(i).
6. 2 AAC 50.250(a)(3)(G). The origin of the exclusion in
2 AAC 50.250(a)(3)(G) was Advisory Opinion AO97-09-CD at
2 (approved June 19, 1997). That opinion considered a labor
union’s questions about how the limits on union and
corporate political activities (newly enacted in 1996) would
be applied, and the Commission determined that the prohibition
against a labor union’s contributions to candidates
did not prohibit the union from providing a service to a
candidate if the union were reimbursed at a commercially
reasonable rate and time or, alternatively, made the service
available equally to any candidate.
7. But see Advisory Opinion AO97-03-CD (approved Feb. 27,
1997), which interpreted AS 15.13.145(d) to require the
Alaska Judicial Council to report to the Commission as expenditures
the costs of the judicial evaluations that AS 22.10.150
requires the Council to conduct and distribute before judicial
retention elections. The approval notice notes that “the
advice in this opinion applies only to the specific activity
for which the advice was requested.”