State of Alaska

Department of Administration

Alaska Public Offices Commission

Alaska Department of Administration, Alaska Public Offices Commission

AO 08-05-CD

Number:           AO 08-05-CD

Requested by:   William Doolittle, MD
                          Chair, Board of Trustees
                          The Alaska Mental Health Trust Authority

Prepared by:    Holly Roberson Hill
                          Executive Director

Date issued:      July 11, 2008

Subject:           May the Alaska Mental Health Trust Authority use Trust funds, consistent with AS 15.13.145, for the purpose of advising Alaskans about the potential impact of Ballot Measure 4, when such funds have not been specifically appropriated for that purpose?

SHORT ANSWER:
           
The short answer is no. As a state corporation, the Alaska Mental Health Trust Authority may not use funds to influence the outcome of an election concerning a ballot proposition or question, unless the funds have been specifically appropriated for that purpose by a state law or a municipal ordinance. Without a specific appropriation, the Mental. Health Trust Authority may only disseminate information about the time and place of an election or provide the public with nonpartisan information about a ballot proposition.

LAW:

Alaska Statutes

AS 15.13.140. Independent expenditures for or against ballot proposition or question.

(a) This chapter does not prohibit a person from making independent expenditures in support of or in opposition to a ballot proposition or question.
(b) An independent expenditure for or against a ballot proposition or question
(1) shall be reported in accordance with AS 15.13.040 and 15.13.100 - 15.13.110 and other requirements of this chapter; and
(2) may not be made if the expenditure is prohibited by AS 15.13.145.

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 educational attendance areas, or another political subdivision of the state; and
(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 ordinance.
(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 or about all the candidates seeking election to a particular public office.
(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 15.13.150. Election educational activities not prohibited.

This chapter does not prohibit a person from engaging in educational election-related communications and activities, including

(1) the publication of the date and location of an election;
(2) the education of students about voting and elections;
(3) the sponsorship of open candidate debate forums;
(4) participation in get-out-the-vote or voter registration drives that do not favor a particular candidate, political party, or political position;
(5) the dissemination of the views of all candidates running for a particular office.

AS 47.30.011. Alaska Mental Health Trust Authority.

(a) The Alaska Mental Health Trust Authority is established as a public corporation of the state within the Department of Revenue.
(b) The purpose of the authority is to ensure an integrated comprehensive mental health program and to administer the office of the long term care ombudsman established in AS 47.62.010.
(c) The authority
(1) shall, as provided in AS 37.14.009 , administer the trust established under the Alaska Mental Health Enabling Act of 1956;
(2) may sue and be sued;
(3) may retain the services of independent counsel when, in the judgment of the authority's board of trustees, independent counsel is needed;
(4) shall insure or indemnify and protect the board, a member of the board, or an agent or employee of the authority against financial loss and expense, including reasonable legal fees and costs, arising out of a claim, demand, suit, or judgment by reason of alleged negligence, alleged violation of civil rights, or alleged wrongful act resulting in death or bodily injury to a person or accidental damage to or destruction of property if the board member, agent, or employee, at the time of the occurrence, was acting under the direction of the authority within the course or scope of the duties of the board member, agent, or employee;
(5) shall exercise the powers granted to it under AS 37.14.041 , subject to the limitations imposed by AS 37.14.045 ; and
(6) shall administer the office of the long term care ombudsman established in AS 47.62.010.
(d) The provisions of AS 44.62.330 - 44.62.630 do not apply to the Alaska Mental Health Trust Authority.

AS 47.30.016. Membership of the board.

(a) The authority shall be governed by its board of trustees.
(b) The board consists of seven members appointed by the governor and confirmed by the legislature. The members appointed under this subsection shall be appointed
(1) based upon their ability in financial management and investment, in land management, or in services for the beneficiaries of the trust;
(2) after the governor has considered a list of persons prepared by a panel of six persons who are beneficiaries, or who are the guardians, family members, or representatives of beneficiaries; the panel shall consist of
(A) one person selected by the Alaska Mental Health Board established by AS 47.30.661 ;
(B) one person selected by the Governor's Council on Disabilities and Special Education;
(C) one person selected by the Advisory Board on Alcoholism and Drug Abuse established by AS 44.29.100 ;
(D) one person selected by the Alaska Commission on Aging established by AS 47.45.200 ;
(E) one person selected by the Alaska Native Health Board; and
(F) one person selected by the authority.
(c) A member of the board appointed by the governor under (b) of this section may not
(1) be an officer or employee of the state; or
(2) within the preceding two years or during the member's term of office have an interest in, served on the governing board of, or been employed by an organization that has received, during that same period, money from the mental health trust settlement income account under a grant or contract for services.
(d) A quorum of the board is four members.
(e) A member of the board is entitled to
(1) an honorarium of $200 for each day or any part of a day spent at a meeting of the board, at a meeting of a subcommittee of the board, or as a representative of the board; and
(2) per diem and travel expenses authorized for boards and commissions under AS 39.20.180.

AS 47.30.036. Duties of the board.

The board shall

(1) preserve and protect the trust corpus under AS 37.14.009 ;
(2) coordinate with other state agencies involved with programs affecting persons in need of mental health services;
(3) review and consider the recommendations submitted under AS 44.29.140(2), AS 47.30.666 (6), AS 47.45.240 (a)(10), and AS 47.80.090(13);
(4) adopt bylaws governing its meetings, selection of officers, proceedings, and other aspects of board procedure;
(5) make an annual written report of its activities to the governor and the public and notify the legislature that the report is available; and
(6) fulfill its obligations under AS 47.30.046 .

Alaska regulations:

2 AAC 50.352. Ballot measure activity

(a) A person, including a corporation or labor union, may make contributions to influence the outcome of a ballot proposition.
(b) A person who makes contributions to influence the outcome of a ballot proposition
(1) must report those contributions as required by AS 15.13.040 ; and
(2) may not make
(A) anonymous contributions; or
(B) contributions using the name of another, as set out in 2 AAC 50.258.
(c) A corporation, company, partnership, firm, association, organization, business trust, labor union, or publicly funded entity may report its contributions and expenditures under AS 15.13.040 (d) and (e) as an individual if
(1) all contributions and expenditures to influence the outcome of a ballot measure election are made from the organization's general day-to-day operating account; and
(2) the organization does not assess, collect, pool, or solicit money or anything of value for the purpose of influencing a ballot measure election.
(d) A corporation, company, partnership, firm, association, organization, business trust, labor union, or publicly funded entity that does not meet the requirements in (c) of this section must register and report as a group.
(e) An individual who makes expenditures to influence the outcome of a ballot proposition election need not report those expenditures if the individual makes them in accordance with AS 15.13.040(h).

2 AAC 50.356. Use of public money

(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, or 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)(l)-(4) uses money held by the entity to make an election-related expenditure, 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.

FACTS

You have submitted a request for an advisory opinion along with a draft of a print ad and two TV spots which you intend to disseminate to the public to advise Alaskans about the potential impact of Ballot Measure 4 on Trust revenues. ("An Act to Protect Alaska's Clean Water"). You have asked whether the Alaska Mental Health Trust Authority may use Trust funds, which have not been specifically appropriated for that purpose, consistent with AS 15.13.145.

The Alaska Mental Health Trust Authority is a public corporation of the state. AS 47.30.011. Under AS 15.13.145, a state corporation may use its money 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 ordinance. AS 15.13.145(b). You have informed us that the money for the proposed advertising has not been specifically appropriated for the purpose of influencing the election on Ballot Measure 4.

Money held by a state corporation may be used to disseminate information about the time and place of an election or to provide the public with nonpartisan information about a ballot proposition or question. AS 15.13.145(c). Under state regulations, information is considered nonpartisan if it does not advocate a position in an election. Nonpartisan information includes the official language of a ballot question, or a neutral ballot summary. 2 AAC 50.356(c).

The draft print advertisement includes the language "[t]hat's why the Trustees of the Alaska Mental Health Trust are concerned Ballot Measure 4- Clean Water Act will so restrict mining in Alaska that our ability to continue generating revenue for beneficiary programs will be impacted." The proposed TV spots include phrases such as "that's why we're concerned about Measure 4's impact on our beneficiaries" and "that's why we're concerned Ballot Measure 4 will impact our ability to raise revenue for Trust beneficiaries." The materials provided with your request for advisory opinion also include references to "unintended consequences", namely a reduction of assets used to fund mental health programs if mining operations arc restricted on Mental Health Trust lands.

ANALYSIS

The print ad and TV spots are clearly intended to influence the outcome of the election on Ballot Measure 4. The overall intent of the materials appears intended to elicit the conclusion from the audience that voting "yes" on Ballot Measure 4 will restrict mining operations in Alaska. You have stated that the Alaska Mental Health Trust Authority holds assets of over one million acres of land, including minerals rights to that land and derives revenue from mining operations which are then used to benefit people with mental illness, in accordance with the mission of the Alaska Mental Health Trust Authority under AS 47.30.011. The materials you have submitted encourage the audience to think about the unintended consequences of voting "yes", namely a reduction in mental health services for the Alaskan public.

The proposed advertisements do not fall within the ambit of the "non-partisan information" allowed by AS 15.13.145(c). For the purposes of AS 15.13.145 (c)(2), information is nonpartisan if it does not advocate a position in an election. See 2 AAC 50.356(c). Nonpartisan information includes the official language of a ballot question, or a neutral ballot summary. Id. As drafted, the print ad and TV spots go beyond the official language of the ballot question and do not provide a neutral ballot summary. The clear intent of the advertisements is to influence the audience against the ballot measure; they are therefore partisan in nature.

CONCLUSION

The Alaska Mental Health Trust Authority is a state corporation. AS 47.30.011. As a state corporation, the Alaska Mental Health Trust Authority may not use funds to influence the outcome of an election concerning a ballot proposition or question, unless the funds have been specifically appropriated for that purpose by a state law or a municipal ordinance. AS 15.13.145. In requesting this advisory opinion, the Alaska Mental Health Trust Authority states that funds have not been specifically appropriated for the purpose of influencing the ballot measure election.

Without a specific appropriation, the Mental Health Trust Authority may only disseminate information about the time and place of an election or provide the public with nonpartisan information about a ballot proposition. In this context non-partisan means not advocating a position on the ballot measure, i.e. providing only the official ballot language or a neutral summaiy thereof. The materials provided to the Alaska Public Offices Commission do not provide the official ballot language or a neutral summary, and do advocate a position on the ballot measure. The proposed advertisements are therefore not nonpartisan and are prohibited by AS 15.13.145.

Only the Commission has the authority to approve an advisory opinion. 2 AAC 50.905. The Commission will rule on staffs proposed advice at its next regularly scheduled meeting, set for August 5th and 6th. 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 staffs proposed advice and the Commission's final advisory opinion apply only to the specific facts and activity for which the advice was requested.

If you rely on staffs proposed advisory opinion in good faith and the Commission subsequently rejects the proposed advice, staff will take no enforcement action on your activities up to that point if you acted under the specific facts described. If you have any additional questions or would like to discuss this proposed, advice, please contact me at (907) 276-4176.

The Commission approved the advice in this letter by an affirmative vote of 5-0 on August 5, 2008. 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. Call (907)276-4176 or (800)478-4176.