State of Alaska

Department of Administration

Alaska Public Offices Commission

Alaska Department of Administration, Alaska Public Offices Commission

AO 09-01-CD

Number:          AO 09-01-CD

Requested by:   Matt Claman, Anchorage Acting Mayor

Prepared by:    Vullnet Greva,
                         Campaign Disclosure, Groups

Date issued:      January, 2009

Subject:           The legality of the Municipality of Anchorage and the Acting Mayor sharing in the cost of an opinion poll.

This letter responds to your January 7, 2009, request for advice regarding whether you, in your capacity as Acting Mayor and the Municipality of Anchorage can contract for and conduct an opinion poll, with the majority of the cost being paid for with Municipal funds.  If this activity may be undertaken, would it be legal for you, as Matt Claman, citizen, to pay for the one question regarding your performance as the Acting Mayor.

Short Answers

Yes, it is legal for the Municipality of Anchorage to contract and pay for a poll regarding the performance of the city and substantive issues facing the city.

Yes it is legal for you to contract and pay for a poll regarding your performance as Mayor.

No, your proposed cost allocation is not appropriate and consistent with AS 15.13.145. See discussion in analysis section.

Facts

Mr. Claman presents the following factual scenario:

The Municipality of Anchorage has, from time to time, contracted with research firms to conduct opinion research on how the city government is doing.  The polls typically involve 5 or more questions about how the city is doing, how the assembly is doing, and opinions on particular issues facing the city.

Assume the following facts for a proposed poll:

  1. The poll will ask 5 questions (excluding demographic questions about the person answering the 5 questions).
  2. 4 of the 5 questions involve the performance of the city and/or substantive issues facing the city (e.g., whether to build a new roadway).
  3. 1 of the 5 questions involves the performance of the mayor.
  4. The total cost of the poll is $2,500.

As 4 of the questions address general municipal performance and municipal issues, while one of the questions addresses the performance of the mayor, it appears appropriate for the municipality to pay 4/5 of the total cost of the poll ($2,000) and for the mayor to pay for 1/5 of the total cost of the poll ($500).

APOC staff additionally notes that Mr. Claman is the acting Mayor of Anchorage, and that the filing period for candidates to run in the next mayoral election does not open until January 30, 2009.

Analysis

We see no prohibition in the laws administered by APOC that would prevent the city from conducting a poll regarding the performance of the city or a poll regarding substantive issues facing the city.  While a municipality may not expend funds to influence the outcome of an election of a candidate to municipal office, AS 15.13.145, the facts, as presented, do not indicate that the Municipality’s portion of the proposed poll will influence the outcome of an election.  Effective governance requires information and input from the governed.  A poll is one method that may be used to gather information necessary to manage the city.

Nor is there a prohibition against Mr. Claman conducting a poll to determine the public perception of his performance as Acting Mayor.  While a person generally may not make a political campaign expenditure before that person files for nomination for the office which the person seeks, a person may make expenditures for opinion surveys or polls.  AS 15.13.100.  Because AS 15.13.100 specifically allows any person to conduct an opinion poll before filing for office we do not need to address the question here of whether a poll by a sitting official is a “political campaign expenditure” or not. 

Although both the Municipality and Mr. Claman have the right to conduct opinion polls, we do have serious concerns regarding the proposed cost sharing arrangement.  While simply splitting the costs based on the number of questions asked has a superficial appeal we do not believe that this accurately reflects either the costs incurred in conducting the poll or the respective benefits accruing to the Municipality and Mr. Claman. Because polls in general are designed as a whole, each question has influence on the other questions, so the first four questions may influence how a person responds to the fifth.  Moreover, because Mr. Claman is the Acting Mayor, questions regarding the Municipality and Mr. Claman can not be separated so cleanly.  Although the Mayor is not the City, he is a large part of the city government and questions regarding the performance of the city will reflect on the performance of the Mayor.  Therefore, the information gathered by such a poll cannot be precisely quantified and broken down by percentages. 

Nor can we ignore the fact that by sharing the cost burden of the poll, the Municipality would be subsidizing a poll for a potential mayoral candidate.  Were Mr. Claman to commission a separate poll consisting solely of the one question he wishes to include in the municipal poll, the cost would not be 1/5 the cost of the municipal poll, it would be significantly higher.  Mr. Claman has not announced his candidacy for mayor nor has he ruled out this possibility. This subsidy would not be available to other persons who may be interested in running for mayor.   We therefore believe that the proposed cost division would amount to an expenditure of municipal funds that would have an influence on the outcome of the upcoming mayoral election, in violation of AS 15.13.145.

Conclusion

An individual may pay the expenses incurred to contract for a poll or survey without being a declared candidate, as described in AS 15.13.100.  However, the expenditures for the polls or surveys must be included in the first report required by     AS 15.13 after filing for office. The fact that you are not a candidate at this time does not prohibit you from making expenditures to pay for a poll to determine how you are doing in your capacity as Acting Mayor of the Municipality of Anchorage.

The Municipality may use its money to pay for a poll to determine public perception of its performance and ask about issues confronting the city.  The Municipality may not use its money to influence the outcome of the election of a candidate to municipal office. By sharing the costs of a poll with Mr. Claman the city would be offering him a benefit not available to others and this would have an influence on the outcome of the upcoming mayoral election in violation of AS 15.13.145. 

Only the Commission has the authority to approve an advisory opinion. AS 15.13.374. The Commission will rule on staff’s proposed advice at its next regularly scheduled meeting, set for February 11, 12 and 13, 2009.  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 February 12, 2009. 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.

Law

Sec. 15.13.100. Expenditures before filing.

A political campaign expenditure may not be made or incurred by a person in an election or by a person or group with the person's knowledge and on the person's behalf before the date upon which the person files for nomination for the office which the person seeks, except for personal travel expenses or for opinion surveys or polls. These expenditures must be included in the first report required under this chapter after filing for office. (§ 1 ch 76 SLA 1974; am § 23 ch 189 SLA 1975; am § 25 ch 14 SLA 1987)

Sec. 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. (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

Sec. 24.45.171. Definitions.

In this chapter

  • (1) "candidate"

    (A) means an individual who files for election to the state legislature, for governor, for lieutenant governor, for municipal office, for retention in judicial office, or for constitutional convention delegate, or who campaigns as a write-in candidate for any of these offices; and

    (B) when used in a provision of this chapter that limits or prohibits the donation, solicitation, or acceptance of campaign contributions, or limits or prohibits an expenditure, includes

    (i) a candidate's campaign treasurer and a deputy campaign treasurer;

    (ii) a member of the candidate's immediate family;

    (iii) a person acting as agent for the candidate;

    (iv) the candidate's campaign committee; and

    (v) a group that makes expenditures or receives contributions with the authorization or consent, express or implied, or under the control, direct or indirect, of the candidate;

    (4) "contribution"

    (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 political party;

    (B) does not include

    (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;

    (6) "expenditure"

    (A) means a purchase or a transfer of money or anything of value, or promise or agreement to purchase or transfer money or anything of value, incurred or made for the purpose of

    (i) influencing the nomination or election of a candidate or of any individual who files for nomination at a later date and becomes a candidate;

    (ii) use by a political party;

    (iii) the payment by a person other than a candidate or political party of compensation for the personal services of another person that are rendered to a candidate or political party; or

    (iv) influencing the outcome of a ballot proposition or question;

    (B) does not include a candidate's filing fee or the cost of preparing reports and statements required by this chapter;

    (C) includes an express communication and an electioneering communication, but does not include an issues communication;


Administrative Regulations

2 AAC 50.274. EARLY CAMPAIGNING

(a) An individual wishing to campaign for municipal elective office shall comply with AS 15.13.100 by filing for office with the municipal clerk or by submitting a letter of intent with the commission. An individual wishing to campaign for state elective office shall comply with AS 15.13.100 by filing a declaration of candidacy with the lieutenant governor or by submitting a letter of intent with the commission.
           
(b) A letter of intent submitted under (a) of this section is valid only for the next election or until it is withdrawn by the individual, whichever occurs first. A letter of intent must include a statement certifying that the individual will comply with the requirements of AS 15.13. A letter of intent need not include the specific seat for which the individual may file but must state whether the individual will seek state or municipal office. (Eff. 1/1/2001, Register 156)