State of Alaska

Department of Administration

Alaska Public Offices Commission

Alaska Department of Administration, Alaska Public Offices Commission

AO 09-07-POFD

Number: AO 09-07-POFD

Requested By: Tracie Paladijczuk

Prepared By:    Jerry D. Anderson

Date Issued:     April 10, 2009

Subject:   Request for an Advisory Opinion regarding AOGCC personnel and reporting    requirements under public official financial disclosure.

Commission Decision:     On April 24, 2009, the Alaska Public Offices Commission heard  and approved your advisory opinion request by a vote of 4 to 0,  with minor editorial changes that did not affect the result.

QUESTION PRESENTED:

Are the following positions clerical and secretarial positions exempt from filing the Public Official Financial Disclosure:  1) PCN 080100 Statistical Technician II,  2) PCN 080101 Statistical Technician II,  3) PCN 080103 Natural Resource Technician II, and 4) PCN 080167 Special Assistant to the Commissioner  I ?

SHORT ANSWER:

There is no reporting requirement by the PCNs 080100, 080101, and 080103 as they are determined to be clerical and/or secretarial staff exempt from the public official financial disclosure requirement under AS 31.05.025.  PCN 080167 is not a clerical or secretarial position under 31.05.023 and AS 31.05.025.  Therefore PCN 080167 must file a Public Official Financial Disclosure as required under AS 31.05.025.

FACTS:

Ms. Paladijcyuk has requested an Advisory Opinion under AS 15.13.374 on the public official financial disclosure hereinafter “POFD” requirement for specific individual employees of the Alaska Oil and Gas Conservation Commission hereinafter “AOGCC”.  Two of the positions identified are Statistical Technicians II, one is a Natural Resource Technician II and one is the Special Assistant to the Commissioner I. 

The Statistical Technician II positions 080100 and 080101 are defined by the major duties, functions and tasks of collecting, collating, reviewing, compiling and inputting data, and providing programming support as described by online position descriptions.

The Natural Resources Technician I/II position 080103 is subject to strict confidentiality requirements in managing specialized data and responding to public requests for records.  This position manages all commission well history records and performs various clerical tasks relating to very technical and very valuable material and records as described by the online position description.

The Special Assistant to the Commissioner I position 080167 is characterized as primarily in a staff assistant role.  This is specifically contrasted with a Special Assistant to the Commissioner II position which is defined as having a direct role in the substantive management of the department’s core business activities and the accomplishment of departmental goals and objectives.  The Special Assistant to the Commissioner I position however is tasked with preparing reports, representing the Commissioner at meetings, serving as the Commissioner’s media representative and liaison, draft or assist in preparing position papers, and to monitor or analyze state and federal legislation.  This position is also exempt by language in the class specifications.

 

ANALYSIS:

The intent of Public Official Financial Disclosure under AS 39.50 is found in AS 39.50.010 including “(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; …” Under AS 31.05.025, entitled conflict of interest,  the Members and employees of the [AOGCC] commission, except clerical and secretarial staff, are subject to AS 39.50.  This statute is interpreted to mean that the Member and employees of AOGCC who are not clerical or secretarial staff are required under AS 39.50.020 to file a POFD statement. 

The major duties, functions and tasks of the Statistical Technician II positions and the Natural Resources Technician I/II position fall into clerical type tasks.  The collecting, collating, reviewing, compiling and inputting data are both skilled and clerical tasks.  They do not involve policy or other decisions on behalf of the Commission.   These positions therefore fall under the clerical and secretarial exemption of AS 31.05.025.  In contrast to the Technician positions, the Special Assistant to the Commissioner I position handles matters in the decision making and substantive analysis roles outside the clerical description and is exempt by position classification.  The Special Assistant to the Commissioner I position is part of the employees subject to AS 39.50 and therefore has a POFD reporting requirement under AS 39.50.020.

CONCLUSION:

PCN’s 080100 and 080101 who are Statistical Technicians II, and PCN 080103 who is a Natural Resource Technician II are not subject to AS 39.50 reporting requirements by the filing of a POFD statement as they are deemed part of the clerical staff of the AOGCC.  The PCN 080167 who is the Special Assistant to the Commissioner I is subject to AS 39.50 reporting requirements and must file a POFD statement.

COMMISSION DECISION:

On April 24, 2009, the Alaska Public Offices Commission heard and approved this advisory opinion request by a vote of 4 to 0, with minor editorial changes that did not affect the result.

APPLICABLE LAW:

Sec. 39.50.010. Findings and purpose. (a) 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.

(b) The people of the State of Alaska declare that

(1) public office is a public trust that should be free from the danger of conflict of interest;

(2) the public has a right to know of the financial and business interests of persons who seek or hold public office;

(3) a compelling state interest requires that candidates for office and office holders disclose their personal and business financial interests;

(4) reasonable disclosure requirements do not violate an individual's right to privacy when the individual seeks or holds public office and a compelling state interest in the disclosure exists; and

(5) reasonable disclosure requirements do not have the effect of chilling the exercise of the right of a qualified person to seek or hold public office.

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

Created on 12/22/2008 12:05:00 PM - 6 - AS 39.50.030 Public Official Financial Disclosure AS 39.50.030 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. 15.13.374. Advisory opinion. (a) Any person may request an advisory opinion from the commission concerning this chapter, AS 24.45, AS 24.60.200 - 24.60.260, or AS 39.50.

(b) A request for an advisory opinion

(1) must be in writing or contained in a message submitted by electronic mail;

(2) must describe a specific transaction or activity that the requesting person is presently engaged in or intends to undertake in the future;

(3) must include a description of all relevant facts, including the identity of the person requesting the advisory opinion; and

(4) may not concern a hypothetical situation or the activity of a third party.

(c) Within seven days after receiving a request satisfying the requirements of (b) of this section, the executive director of the commission shall recommend a draft advisory opinion for the commission to consider at its next meeting.

(d) The approval of a draft advisory opinion requires the affirmative vote of four members of the commission. A draft advisory opinion failing to receive four affirmative votes of the members of the commission is disapproved.

Sec. 31.05.025. Conflict of interest.

(a) Members and employees of the commission, except clerical and secretarial staff, are subject to AS 39.50.

(b) A member of the commission is disqualified from voting upon any matter before the commission in which the member has a conflict of interest.

Sec. 31.05.023. Commission staff.

(a) The commission shall employ such staff as it considers necessary to carry out its responsibilities.

(b) The professional staff of the commission and the personal secretary of each commissioner are in the exempt service under AS 39.25.110.

(c) The secretarial and clerical staff of the commission, except the personal secretary of each commissioner, are in the classified service.

(d)  In addition to its staff of regular employees, the commission may contract for and engage the services of consultants and experts the commission considers necessary.

COMMISSION DECISION:

On April 24, 2009, the Alaska Public Offices Commission heard and approved this advisory opinion request by a vote of 4 to 0, with minor editorial changes that did not affect the result.