State of Alaska

Department of Administration

Alaska Public Offices Commission

Alaska Department of Administration, Alaska Public Offices Commission

AO 09-06-POFD

Number:  AO 09-06-POFD

Requested By: Governor Palin

Prepared By:    Holly R. Hill

Date Issued:     March 10, 2009

Subject:   Request for an advisory opinion regarding the reporting of gifts sent to the   Governor as a result of her vice-presidential candidacy. AO 09-06-POFD

Commission Decision: The Alaska Public Offices Commission disapproved the advice in   this request for an advisory opinion, AO 09-06-POFD, by a vote of   4 to 0, on April 24, 2009.  The Commission found that the request   was not specific enough, under AS 15.13.374, and did not provide   a specific transaction or activity that the requesting person is   presently engaged in or intends to undertake in the future, including   a description of all relevant facts.

QUESTION PRESENTED

If a public official receives a gift, and returns that gift to the individual who gave it, must the public official report the gift under Alaska’s Public Official Financial Disclosure Laws?

SHORT ANSWER

The short answer is no.  A proffered gift which is not accepted by a public official does not need to be reported on a Public Official Financial Disclosure form.

FACTS

Governor Sarah Palin was the 2008 Republican candidate for Vice-President of the United States, and as a result of her candidacy, the Governor and her family received numerous gifts.  The Governor requests advice as to whether gifts that are returned to the individual who gave the gift need to be reported on her Public Official Financial Disclosure form.

ANALYSIS

The Governor, like other public officials, is required to file an annual report of her financial and business interests.  AS 39.50.130.  This report must list all “gifts from a single source with a cumulative value exceeding $250 in a calendar year, received by the person, the person’s spouse or domestic partner, or the person’s dependent child.” AS 39.50.030(b)(1). For each reportable gift the filer must report the source of the gift, the recipient of the gift, and the amount or value of the gift.  Id.The relevant regulations define a gift as “a payment or item to the extent that consideration of equal or greater value is not received; and includes forgiveness of a loan; provision of accommodations; provision of a ticket for travel or for an entertainment event; provision of food or beverages other than food or beverages for immediate consumption; the granting of a discount or rebate not extended to the public generally for a good or service; and provision or loan of goods or services for personal or professional use, including office expenses connected with holding public office, unless made in exchange for consideration of equal or greater value. 2 AAC 50.200.  A “gift” does not include a political contribution; a commercially reasonable loan made in the ordinary course of business in exchange for consideration of equal or greater value; or an inheritance. Id.

Neither the statutes nor the regulations address the situation where an unsolicited item is given to a public official and the public official returns it to the giver.  We have not found any prior advisory opinions or court rulings that shed any appreciable light on the subject either.  However, we do not believe requiring reporting of a returned gift is consistent with the purposes behind the disclosure laws.  The disclosure laws are intended to make known to the public the financial and business interests of public officials, so that members of the public may judge for themselves if there is a conflict of interest or improper self dealing by government officials.  If a gift is not used, is returned, and the recipient reaps no benefit from temporary possession of the item, there is no private or business interest created.  The official will have received no economic or personal advantage from having been the recipient of the item.

Moreover a public official should have some control over her own affairs, and some choice as to whether or not to engage in a transaction that will result in a reporting requirement.  If the official has no opportunity to refuse a gift, a gift giver could unilaterally create an unavoidable reporting requirement for that official. 

We therefore conclude that in order to trigger the disclosure laws the official must either accept the gift through some affirmative action, or through inaction by failing to return it.  We are aware that there numerous possible variations on the basic fact pattern of a returned gift.  Variables could include the value and nature of the gift, the intention of the giver, the length of time the gift is in the public official’s possession, whether or not the official made any use of the gift, when the official became aware of the gift, etc.  We cannot address all of these situations in the context of an advisory opinion based on upon a limited set of facts presented to us.   Our conclusion here is limited to the situation described above—where a public official receives a gift, and that official does not use the gift, returns it to the giver, and receives no benefit from having had temporary possession of the gift. 

CONCLUSION

AS 39.50.030 requires the reporting of gifts valued over $250 from any one donor.  A “gift” is defined by 2 AAC 50.200. Where a public official receives a gift, and that official does not use the gift, returns it to the giver, and receives no benefit from having had possession of the gift, then it is not reportable under AS 39.50. We do not express any opinion as to how such gifts should be regarded under the Alaska Executive Branch Ethics Act, AS 39.52.110 et seq.

COMMISSION DECISION

On April 24, 2009, the Commission disapproved the advice in this advisory opinion by a vote of 4 to 0.  The Commission found that the request was not specific enough, under AS 15.13.374, and did not provide a specific transaction or activity that the requesting person is presently engaged in or intends to undertake in the future, including a description of all relevant facts.

 

LAW

Alaska Statutes

Sec. 39.50.020. Report of financial and business interests.

(a) A public official other than the governor or the lieutenant governor shall file a statement giving income sources and business interests, under oath and on penalty of perjury, within 30 days after taking office as a public official. Candidates for state elective office other than a candidate who is subject to AS 24.60 shall file the statement with the director of elections at the time of filing a declaration of candidacy or a nominating petition or becoming a candidate by any other means. Candidates for elective municipal office shall file the statement at the time of filing a nominating petition, declaration of candidacy, or other required filing for the elective municipal office. Refusal or failure to file within the time prescribed shall require that the candidate's filing fees, if any, and filing for office be refused or that a previously accepted filing fee be returned and the candidate's name removed from the filing records. A statement shall also be filed by public officials no later than March 15 in each following year. On or before the 90th day after leaving office, a former public official shall file a final statement covering any period during the official's service in that office for which the public official has not already filed a statement. Persons who are members of boards or commissions not named in AS 39.50.200 (b) are not required to file financial statements.

(b) A public official or former public official other than an elected or appointed municipal officer shall file the statement with the Alaska Public Offices Commission. Candidates for the office of governor and lieutenant governor and, if the candidate is not subject to AS 24.60, the legislature shall file the statement under AS 15.25.030 or 15.25.180. Municipal officers, former municipal officers, and candidates for elective municipal office, shall file with the municipal clerk or other municipal official designated to receive their filing for office. All statements required to be filed under this chapter are public records.

Sec. 39.50.030. Contents of statements.

(a) Each statement must be an accurate representation of the financial affairs of the public official or candidate and must contain the same information for each member of the person's family, as specified in (b) and (d) of this section, to the extent that it is ascertainable by the public official or candidate.

(b) Each statement filed by a public official or candidate under this chapter must include the following:

(1) for all sources of income over $1,000 during the preceding calendar year, including taxable capital gains, and for all gifts from a single source with a cumulative value exceeding $250 in a calendar year, received by the person, the person's spouse or domestic partner, or the person's dependent child,

(A) each source of the income or gift;

(B) the recipient of the income or gift;

(C) the amount of the income or value of the gift;

(D) a brief statement describing whether the income was earned by commission, by the job, by the hour, or by some other method;

(E) the approximate number of hours worked to earn the income; and

(F) unless required by law to be kept confidential, a description sufficient to make clear to a person of ordinary understanding the nature of each service performed and the date the service was performed;

(2) the identity, by name and address, of each business in which the person, the person's spouse or domestic partner, or the person's dependent child has an interest or was a stockholder, owner, officer, director, partner, proprietor, or employee during the preceding calendar year, except that an interest of less than $1,000 in the stock of a publicly traded corporation need not be included;

(3) the identity and nature of each interest in real property, including an option to buy, owned at any time during the preceding calendar year by the person, the person's spouse or domestic partner, or the person's dependent child;

(4) the identity of each trust or other fiduciary relationship in which the person, the person's spouse or domestic partner, or the person's dependent child held a beneficial interest exceeding $1,000 during the preceding calendar year, a description and identification of the property contained in each trust or relation, and the nature and extent of the beneficial interest in it;

(5) any loan or loan guarantee of more than $1,000 made to the person, the person's spouse or domestic partner, or the person's dependent child, and the identity of the maker of the loan or loan guarantor and the identity of each creditor to whom the person, the person's spouse or domestic partner, or the person's dependent child owed more than $1,000; this paragraph requires disclosure of a loan, loan guarantee, or indebtedness only if the loan or guarantee was made, or the indebtedness incurred, during the preceding calendar year, or if the amount still owing on the loan, loan guarantee, or indebtedness was more than $1,000 at any time during the preceding calendar year;

(6) a list of all contracts and offers to contract with the state or an instrumentality of the state during the preceding calendar year held, bid, or offered by the person, the person's spouse or domestic partner, or the person's dependent child, a partnership, limited liability company, or professional corporation of which the person is a member, or a corporation in which the person or the person's spouse, domestic partner, or dependent child, or a combination of them, hold a controlling interest; and

(7) a list of all mineral, timber, oil, or any other natural resource lease held, or lease offer made, during the preceding calendar year by the person, the person's spouse or domestic partner, or the person's dependent child, a partnership, limited liability company, or professional corporation of which the person is a member, or a corporation in which the person or the person's spouse, domestic partner, or dependent child, or a combination of them, holds a controlling interest.

(c) [Repealed, Sec. 26 ch 25 SLA 1975].

(d) In addition to the requirements of (b) of this section, each statement filed under this chapter by a public official in the executive branch of state government other than the chair or a member of a state commission or board must include a disclosure of the formation or maintenance of a close economic association involving a substantial financial matter as required by this subsection. The disclosure must be sufficiently detailed so that a reader can ascertain the nature of the association. A public official shall disclose a close economic association with

(1) a legislator;

(2) a public official who is not an elected or appointed municipal officer;

(3) a lobbyist; or

(4) a public officer if the person required to make the disclosure is the governor or the lieutenant governor.

(e) If a public official required to disclose a close economic association under (d) of this section forms a close economic association after the date on which the public official files the financial disclosure statement required by (a) of this section, disclosure of the association must be made to the commission within 60 days after the formation of the association.

(f) When making a disclosure under (d) of this section concerning a relationship with a lobbyist to whom the public official is married or who is the public official's domestic partner, the public official shall also disclose the name and address of each employer of the lobbyist and the total monetary value received from the lobbyist's employer. The public official shall report changes in the employers of the spouse or domestic partner within 48 hours after the change. In this subsection, "employer of the lobbyist" means the person from whom the lobbyist received money, or goods or services having a monetary value, for engaging in lobbying on behalf of the person.

(g) The requirements in this section for disclosures related to a person's domestic partner do not apply to an elected or appointed municipal officer.

(h) In this section,

(1) "close economic association" means a financial relationship that exists between a public official required to disclose a close economic association under (d) of this section and some other person or entity, including a relationship where the public official serves as a consultant or advisor to, is a member or representative of, or has a financial interest in an association, partnership, limited liability company, business, or corporation;

(2) "lobbyist" has the meaning given in AS 24.60.990 (a);

(3) "public officer" has the meaning given in AS 39.52.960 .

Sec. 39.50.130. Report of financial interests of governor and lieutenant governor.

The governor and lieutenant governor shall each file a report of financial interests required by this chapter. If the governor or lieutenant governor fails to file the report when due, salary, per diem, and travel expenses after the due date are forfeited and may not be paid until compliance, and the person is guilty of a misdemeanor and upon conviction is punishable by a fine of not less than $100 nor more than $1000.

Sec. 39.50.200. Definitions.

(a) In this chapter,

(1) "assistant to the governor or the lieutenant governor" includes any executive, legislative, special, administrative, or press assistant to the governor or lieutenant governor, and any person similarly employed in a policy-making position;

(2) "child" includes a biological child, an adoptive child, and a stepchild;

(3) "commission" means the Alaska Public Offices Commission created under AS 15.13.020 (a);

(4) "domestic partner" means a person who is cohabiting with another person in a relationship that is like a marriage but that is not a legal marriage;

(5) "instrumentality of the state" means a state department or agency, whether in the legislative, judicial, or executive branch, including the University of Alaska;

(6) "judicial officer" means a person appointed as a justice to the supreme court or as a judge to the court of appeals, superior court, district court, or magistrate court;

(7) "mother or father" includes a biological parent, an adoptive parent, and a step-parent;

(8) "municipal officer" includes a borough or city mayor, borough assemblyman, city councilman, school board member, elected utility board member, city or borough manager, members of a city or borough planning or zoning commission within a home rule or general law city or borough, or a unified municipality;

(9) "public official" means

(A) a judicial officer;

(B) the governor or the lieutenant governor;

(C) a person hired or appointed in a department in the executive branch as

(i) the head or deputy head of the department;

(ii) the director or deputy director of a division;

(iii) a special assistant to the head of the department;

(iv) a person serving as the legislative liaison for the department;

(D) an assistant to the governor or the lieutenant governor;

(E) the chair or a member of a state commission or board;

(F) state investment officers and the state comptroller in the Department of Revenue;

(G) the chief procurement officer appointed under AS 36.30.010 ;

(H) the executive director of the Alaska Workforce Investment Board;

(I) each appointed or elected municipal officer; and

(J) the members of the board of trustees, the executive director, and the investment officers of the Alaska Permanent Fund Corporation;

(10) "source of income" means the entity for which service is performed or that is otherwise the origin of payment; if the person whose income is being reported is employed by another, the employer is the source of income; but if the person is self-employed by means of a sole proprietorship, partnership, limited liability company, professional corporation, or a corporation in which the person, the person's spouse or domestic partner, or the person's dependent children, or a combination of them, hold a controlling interest, the "source" is the client or customer of the proprietorship, partnership, limited liability company, or corporation, but, if the entity that is the origin of payment is not the same as the client or customer for whom the service is performed, both are considered the source.

(b) In this chapter "state commission or board" means the

(1) [Repealed, Sec. 30 ch 81 SLA 2000].

(2) Alaska State Council on the Arts (AS 44.27.040 );

(3) Alcoholic Beverage Control Board (AS 04.06.010 );

(4) State Assessment Review Board (AS 43.56.040 );

(5) [Repealed, Sec. 1 ch 54 SLA 1981].

(6) Board of Education and Early Development (AS 14.07.075 );

(7) Alaska Public Broadcasting Commission (AS 44.21.256 );

(8) Alaska Public Offices Commission (AS 15.13.020 );

(9) [Repealed, Sec. 16 ch 61 SLA 1995].

(10) Alaska Commercial Fisheries Entry Commission (AS 16.43.020 );

(11) Fishermen's Fund Advisory and Appeals Council (AS 23.35.010 );

(12) [Repealed, Sec. 140 ch 4 FSSLA 1992].

(13) State Commission for Human Rights (AS 18.80.010 );

(14) [Repealed, Sec. 86 ch 59 SLA 1982].

(15) Alaska Judicial Council (art. IV, Sec. 8, Alaska Constitution);

(16) Commission on Judicial Conduct (art. IV, Sec. 10, Alaska Constitution);

(17) [Repealed, Sec. 24 ch 22 SLA 2001].

(18) Local Boundary Commission (AS 44.33.810 );

(19) Occupational Safety and Health Review Board (AS 18.60.057 );

(20) Board of Parole (AS 33.16.020 );

(21) State Personnel Board (AS 39.25.060 );

(22) [Repealed, Sec. 20 ch 110 SLA 1981].

(23) [Repealed, Sec. 132 ch 9 FSSLA 2005].

(24) Regulatory Commission of Alaska (AS 42.04.010 );

(25) University of Alaska Board of Regents (AS 14.40.120 );

(26) Alaska Royalty Oil and Gas Development Advisory Board (AS 38.06.020);

(27), (28) [Repealed, Sec. 86 ch 59 SLA 1982].

(29) [Repealed, Sec. 132 ch 9 FSSLA 2005].

(30) [Repealed, 1983 Initiative Proposal No. 2, Sec. 6].

(31) Workers' Compensation Board (AS 23.30.005 ) and Workers' Compensation Appeals Commission (AS 23.30.007 );

(32) Alaska Commission on Postsecondary Education (AS 14.42.015 );

(33) Alaska Municipal Bond Bank Authority (AS 44.85.020 );

(34) [Repealed, Sec. 1 ch 54 SLA 1981].

(35) Alaska Medical Facility Authority (AS 18.26);

(36) Alaska Oil and Gas Conservation Commission (AS 31.05);

(37) Alaska Housing Finance Corporation (AS 18.56.010 - 18.56.900);

(38) [Repealed, Sec. 44 ch 24 SLA 2003].

(39) [Repealed, Sec. 4 ch 75 SLA 1979].

(40) Board of Fisheries (AS 16.05.221 (a));

(41) Board of Game (AS 16.05.221 (b));

(42) Alaska Permanent Fund Corporation (AS 37.13.040 );

(43) [Repealed, Sec. 69 ch 14 SLA 1987].

(44) Alaska Seafood Marketing Institute (AS 16.51.010 );

(45) Council on Domestic Violence and Sexual Assault (AS 18.66.010 );

(46) [Repealed, Sec. 27 ch 18 SLA 1993].

(47) [Repealed, Sec. 38 ch 168 SLA 1990].

(48) [Repealed, Sec. 16 ch 33 SLA 1996].

(49) [Repealed, Sec. 10 ch 29 SLA 1999].

(50) [Repealed, Sec. 9 E.O. No. 84 (1993)].

(51) [Repealed, Sec. 102 ch 21 SLA 2000].

(52) [Repealed, Sec. 10 ch 58 SLA 2006].

(53) the board of directors and the executive director of the Alaska Aerospace Development Corporation (AS 14.40.821 );

(54) Alaska Retirement Management Board (AS 37.10.210 );

(55) Alaska Workforce Investment Board (AS 23.15.550 );

(56) Board of Agriculture and Conservation (AS 03.09.010 );

(57) the board of directors and chief executive officer of the Alaska Natural Gas Development Authority (AS 41.41.020 );

(58) Big Game Commercial Services Board (AS 08.54.591 );

(59) Alaska Industrial Development and Export Authority (AS 44.88);

(60) the board of directors of the Knik Arm Bridge and Toll Authority (AS 19.75.031 and 19.75.041);

(61) Alaska labor relations agency (AS 23.05.360 - 23.05.390);

(62) the Board of Trustees of the Alaska Mental Health Trust Authority (AS 47.30.016 );

(63) the board of directors of the Alaska Railroad Corporation (AS 42.40.020 - 42.40.060).

Alaska regulations:

2 AAC 50.075. Reporting sources of income from gifts

For the purposes of reporting a source of income under AS 39.50.030 (b), a filer shall report the name of the donor of a gift or a series of gifts if the

(1) value of the gift or the cumulative value of the series of gifts from the donor is over $250;

(2) gift or series of gifts is received by the filer or the filer's family member; and

(3) donor is not related to the recipient as a spouse, domestic partner, parent, child, sibling, grandparent, aunt, uncle, niece, or nephew.

History: Eff. 7/20/95, Register 135; am 1/1/2001, Register 156; am 2/20/2005, Register 173

Authority: AS 15.13.030

AS 39.50.030

AS 39.50.050

2 AAC 50.200. Definitions

As used in AS 39.50 and 2 AAC 50.010 - 2 AAC 50.200, unless the context requires otherwise,

(1) "candidate" means a candidate for

(A) state elective office; and

(B) elective municipal office;

(2) "child" has the meaning given in AS 39.50.200 (a);

(3) "commission" means the Alaska Public Offices Commission created under AS 15.13.020 (a);

(4) "executive branch public official" means a public official within the definition given in AS 39.50.200 (a), except for a judicial officer or a municipal officer;

(5) "filer" means a public official as defined in AS 39.50.200 (a);

(6) "gift"

(A) means a payment or item to the extent that consideration of equal or greater value is not received;

(B) includes

(i) forgiveness of a loan, payment of a loan by a third party, or an enforceable promise to make a payment except when full and adequate consideration is received;

(ii) the provision of accommodations;

(iii) the provision of a ticket for travel or for an entertainment event;

(iv) the provision of food or beverages other than food or beverages for immediate consumption;

(v) the granting of a discount or rebate not extended to the public generally for a good or service; and

(vi) the provision or loan of goods or services for personal or professional use, including office expenses connected with holding public office, unless made in exchange for consideration of equal or greater value; and

(C) does not include

(i) a political contribution;

(ii) a commercially reasonable loan made in the ordinary course of business in exchange for consideration of equal or greater value; or

(iii) an inheritance;

(7) "judicial officer" has the meaning given in AS 39.50.200 (a), but does not include a judicial officer who holds a judicial office for less than 30 days;

(8) "municipal officer" has the meaning given in AS 39.50.200 (a);

(9) "source of income" has the meaning given in AS 39.50.200 (a);

(10) repealed 2/20/2005;

(11) "statement" means a statement or report of income sources and business interests required under AS 39.50;

(12) "family member" means a spouse, domestic partner, or dependent child;

(13) "public official" has the meaning given in AS 39.50.200 (a).

(14) "domestic partner" has the meaning given in AS 39.50.200 (a).

On April 24, 2009, the Commission disapproved the advice in this advisory opinion by a vote of 4 to 0.  The Commission found that the request was not specific enough, under AS 15.13.374, and did not provide a specific transaction or activity that the requesting person is presently engaged in or intends to undertake in the future, including a description of all relevant facts.

 

AS 39.50.010 states:

  1. It is declared by the people of the State of Alaska that the purposes of this chapter are
    1. to discourage public officials from acting upon a private or business interest in the performance of a public duty;
    2. to assure that public officials in their official acts are free of the influence of undisclosed private or business interests;
    3. to develop public confidence in persons seeking or holding public office, enhance the dignity of the offices and make them attractive to citizens who are motivated to public service; and
    4. to develop accountability in government by permitting public access to information necessary to judge the credentials and performance of those who seek and hold public office.