State of Alaska

Department of Administration

Alaska Public Offices Commission

Alaska Department of Administration, Alaska Public Offices Commission

AO 08-07-CD

Number:           AO 08-07-CD

Requested by:   Jeff Jessee, Alaska Mental Health Trust Authority
                         Chief Executive Officer

Prepared by:    Holly Hill
                         Executive Director

Date issued:      September 10, 2008

Subject:           What is the legality of using Alaska Mental Health Trust Funds for advertisements regarding the Trust and Ballot Measure 4?

This letter responds to your second request for advice regarding the legality of using Alaska Mental Health Trust funds for advertisements regarding the Trust and Ballot Measure 4. This opinion has been modified at the request of the Commission, following presentation to the Commission and the verbal request of Mr. Jessee to withdraw one of the ads of which he requested an opinion.

Question Presented

May the Alaska Mental Health Trust Authority (“the Trust Authority”) use trust funds, consistent with AS 15.13.145, to place a print advertisement which informs the public that The Mental Health Trust receives significant funds from resource extraction on Trust property?

Short Answer

The short answer is yes. As a state corporation, the Alaska Mental Health Trust Authority may not use its 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. However, the draft advertisement, by itself is not likely to be perceived as influencing the outcome of the election on a ballot measure, and it is in keeping with the Trust Authority’s mission to educate the public and its ongoing public relations campaign.

Facts

The Mental Health Trust Authority has proposed running a print advertisement which describes the link between resource extraction and mental health in Alaska by explaining that the Mental Health Trust receives a substantial amount of revenue from its resource rich land holdings.  A copy of the text of the advertisement is attached as Appendix 1. The Trust Authority proposed running this advertisement both before and after the election on Ballot Measure 4.  The opponents of Ballot Measure 4 claim that its passage would curtail mining and resource extraction in Alaska.  There has been no specific appropriation for the Trust Authority to influence Ballot Measure 4.  The Trust Authority has been engaged in an ongoing campaign to educate the public about the Mental Health Trust Authority and its mission.

Analysis

The Alaska Mental Health Trust Authority is a public corporation of the state. AS 47.30.011. 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).

In the past we have issued several advisory opinions on the use of state funds to influence the outcome of an election on a ballot measure.  In AO-99-03CD we were confronted with the question of whether the Governor could address an upcoming special election in his regular end-of-session letter to constituents.  We noted that if an action is part of an official’s usual and customary duties, like answering constituent inquiries or responding to questions at a press conference, “the presumption is that the action is primarily intended to satisfy the official’s duties to the public and not to influence the outcome of the election.”  We concluded that because the Governor’s letter was part of his usual and customary correspondence with constituents and did not expressly urge a vote for or against the proposition, it was not subject to the campaign disclosure law.   The “usual and customary performance of duties” standard has since been codified at 2 AAC 50.356(b)

In AO-06-02CD we were asked whether, in fulfilling his responsibility to hold public hearings on the Stranded Gas Development Act, the Commissioner of Revenue could respond to inquiries regarding an upcoming ballot initiative that would impose a tax on gas reserves.  The Commissioner’s position was that the reserves tax would create an unfavorable investment climate for the gas line project.  We concluded that

So long as the discussion of the gas reserve tax takes place in the context of the larger question of the fiscal impact of the proposed gas line contract, thereby fulfilling the notice and public comment provisions of the Alaska Stranded Gas Development Act, it is not for the purpose of influencing the outcome of the gas reserves tax ballot initiative and the expenditures need not be reported to APOC.

We went on to note that “discussion of and dissemination of documents regarding the gas reserves tax outside of this context would likely constitute election related activity, which would require a specific appropriation and reporting of expenditures to APOC.”

With these authorities in mind we turn to the advertisement proposed by the Trust Authority.  The proposed advertisement would not appear to its readers to be intended to influence the outcome of a ballot measure.  The advertisement does not mention the ballot measure, and does not appear to be specifically related to the ballot measure election.  There is no language in the advertisement that would lead a reader to conclude that the Trust Authority was taking a position on the ballot measure. 

Even if the advertisement had any incidental effect on the outcome of the election on Ballot Measure 4, the advertisement is not prohibited because advertisement is primarily intended to satisfy the Trust’s statutorily imposed obligations, and not influence the outcome of the election.  The Mental Health Trust Authority is charged with ensuring “an integrated comprehensive mental health program…”  AS 47.30.011.  Educating the public about the Trust and Trust Authority can reasonably be viewed as essential to Authority’s statutory mission, and the advertisement appears to be in keeping with the ongoing public information campaign in which the Trust Authority is attempting to raise awareness about The Trust. 

Conclusion

The Alaska Mental Health Trust Authority, as a state corporation, may not, without a specific appropriation, use funds to influence the outcome of an election concerning a ballot proposition or question.  However, the advertisement at issue here does not appear to be an attempt influence the outcome of an election concerning a ballot proposition or question.  Therefore the advertisement is not 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 staff’s 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 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.

If you rely on staff’s 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 4-0 on September 24, 2008. The advice in this opinion applies only to the specific activity for which the advice was requested.

The original request letter with appendices’ is available by request through APOC and is in PDF format.

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. (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. (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 4762.010.

(d) The provisions of AS 44.62.220 - 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 47.20.661;

    • (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 AS47.30.046.

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 14.13.145(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 AS15.13.145(a)(1)-(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.