State of Alaska

Department of Administration

Alaska Public Offices Commission

Alaska Department of Administration, Alaska Public Offices Commission

09-09-POFD

NOTICE: THIS ADVISORY OPINION HAS BEEN UPDATED

The Alaska Public Offices Commission heard and approved Advisory Opinion 09-09-POFD on April 24, 2009.

On February 25, 2010, the Commission heard and approved Staff’s recommendation to reverse the decision in AO 09-09-POFD and not require Division Operations Managers, including Susan Aspelund, to file a POFD statement by a vote of 4-0.

Staff’s memorandum in support of the request that the Commission reverse AO 09-09-POFD is included below, as is the original opinion issued in AO 09-09-POFD. Copies of the exhibits referenced in the memorandum are available upon request at the Alaska Public Offices Commission (907-276-4176).

Memorandum

TO:     APOC Commissioners

FROM:     Jerry D. Anderson, Asst. Director, APOC

DATE:     January 25, 2010

SUBJECT:      Recommendation to Commission
                          Regarding AO 09-09-POFD ASPELUND

Timeline of Events:

March 16, 2009 
Susan L. Aspelund requests an advisory opinion under AS 15.13.374 whether Division Operations Managers are required to file a Public Official Financial Disclosure (POFD) under AS 39.50.  [See Exhibit 1]

April 24, 2009
Alaska Public Offices Commission heard and approved an Advisory Opinion in AO 09-09-POFD by a vote of 4-0 with minor editorial changes.  [See Exhibit 2]

December 17, 2009
Department of Administration Commissioner Annette Kreitzer requests a reconsideration of AO 09-09-POFD.  [See Exhibit 3]

January 8, 2010
The Commission asked the staff to review the letter from Department of Administration and make a recommendation to the Commission no later than January 29th.  The Commission further suggested that the Department of Administration could respond to Staff’s recommendation on or before February 9th.

Analysis of AO 09-09-POFD and request for reconsideration:

The Advisory Opinion 09-09-POFD was narrowly tailored to the specific position of “Division Operations Manager of the Division of Commercial Fisheries of the Department of Fish and Game (PCN 11-1068).”  In the letter dated December 17, 2009 Commissioner Kreitzer states that “AO 09-09-POFD recently included Division Operations Managers in the list of State officials required to file Public Official Financial Disclosures.”  Commissioner Kreitzer requests that the Advisory Opinion be reconsidered.  An employee directory search of the job title “Division Operations Manager” returned 28 individuals with that title including Susan Aspelund who was the subject of the AO 09-09-POFD Advisory Opinion [See Exhibit 4].

The original analysis of AO 09-09-POFD focused on whether a change to the title from Deputy Director I to Division Operations Manager involved a change in duties that would cause the requirement to file a POFD to no longer be appropriate.  The applicable statute AS 39.50.020 and accompanying definition of “public official” under AS 39.50.200(a)(9) do not include the position of Division Operations Manager.  The title of Division Operations Manager is not included in the definition of “public official.” 

Ms. Aspelund had been hired in Position Control Number (PCN) 11-1068, or Division Operations Manager. PCN 11-1068 had been changed in September 2008 to reflect the position title change to Division Operations Manager as explained in Exhibit 3 and as shown on Exhibit 5.  Our previous analysis focused on the fact that the duties of that particular PCN had not changed with the change in title. We also evaluated Ms. Aspelund’s own representation of herself as a Deputy Director. [See Exhibit 1.] Ms. Aspelund was a new employee at the time she filed her Public Official Financial Disclosure and appears not to have been aware of the recent change in title of her position from Deputy Director to Operations Manager.  Our previous analysis did not take into account the purpose of the reclassification.

A review of the Class Specifications for the Division Operations Manager job class includes the statement that it is “distinguished from the Division Director job class in that the latter is the principal executive officer of an organizational unit established by statute or by the Governor and recognized as a division.  The Division Operations Manager serves as the principal assistant to the Division Director.” [See Exhibit 6].

In the request for reconsideration, [Exhibit 3], Commissioner Kreitzer points out that the reclassification from Deputy Director I to Division Operations Manager recognized “more of an operational/management focus” in the Division Operations Manager as compared to a Deputy Director who has the “principal responsibility for the determination of policy or the way in which policies are carried out, …”   A call to the Division of Personnel confirmed that during the class study which reclassified Deputy Director I positions to Division Operations Manager positions, the duties of all positions descriptions of Deputy Directors were reviewed. The duties as written reflected two major groups of employees: those who served as partners with a Director of a Division in creating policy, procedure and legislation; and those who oversaw programs and were more involved in day to day operations. It is fair to state that position descriptions of Division Operations Managers reflect considerably less time allocated to determination of policy level issues than Deputy Directors. This distinction in duties was already reflected in existing position description; therefore the position descriptions themselves did not need to be altered. This explains why the duties of PCN 11-1068 remained the same and why our analysis was faulty.  

With a greater role in policy determination the Deputy Director has a much greater exposure to conflict of interest and potential actions that are the subject of the findings and purpose enumerated in AS 39.50.010.  In fact, a Director is typically a range 27 and a Deputy Director designation is typically a range 25, while a Division Operations Manager is typically a range 24 position, reflecting a greater level of pay for the greater policy level work.  This analysis of whether a position performs policy level work has been accepted by the commission in previous decisions. See AO 09-08-POFD (Myers). Myers was in the position of AGIA Coordinator, which was not listed in the statute, but determined by the Commission to be subject to reporting requirements based on the similarity in authority and position to other appointments also subject to POFD reporting requirements. 

The statutes under AS 39.50 and accompanying regulations provide no specific guidance as to determining the applicability of POFD reporting requirements other than the definitional section.  Based on our analysis of the level of policy making of PCN 11-1068 and the rationale for reclassifying some Deputy Director I positions to Division Operations Manager as explained in Commissioner Kreitzer’s Letter, Exhibit 3, and clarified by the Division of Personnel, the change from a Deputy Director to a Division Operations Manager would make that position not subject to the POFD reporting requirements using the definition under AS 39.50.200(a)(9). 

Recommendation:

The recommendation of the Staff is therefore to reverse the decision in 09-09-POFD and not require Division Operations Managers including Susan Aspelund to file a POFD Statement.

Advisory Opinion

Number: AO 09-09-POFD

Requested By: Sue Aspelund  Deputy Director, Division of Commercial Fisheries  Alaska Department of Fish and Game

Prepared By:   Jerry D. Anderson,   Assistant Director

Date Issued:   April 8, 2009

Modified:  February 25, 2010

Subject: Request for an Advisory Opinion on applicability of Public Official Financial Disclosure requirements to a Division Operations Manager in the Division of Commercial Fisheries of the Department of Fish and Game PCN 11-1068.

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. 

Commission Decision: On February 25, 2010, the Commission heard and approved Staff’s recommendation to reverse the decision in AO 09-09-POFD and not require Division Operations Managers, including Susan Aspelund, to file a POFD statement by a vote of 4-0.

QUESTION PRESENTED:

Is a public official financial disclosure statement required under AS 39.50.020 for the position of Division Operations Manager of the Division of Commercial Fisheries of the Department of Fish and Game (PCN 11-1068)?

SHORT ANSWER:

There is a reporting requirement under AS 39.50 for the position of Division Operations Manager of the Division of Commercial Fisheries of the Department of Fish and Game. A person employed in this position is required to file a statement under AS 39.50.020.

FACTS:

Ms. Aspelund is the Division Operations Manager of the Division of Commercial Fisheries of the Department of Fish and Game and has requested an Advisory Opinion under AS 15.13.374 regarding the public official financial disclosure (“POFD”) requirement for his position.  APOC staff obtained information from online position descriptions regarding this specific position with Fish and Game. The Division Operations Manager position was created by title change on 09/01/2008.  The last full position description was effective 7/21/2008.  Prior to the title change the position was a Deputy Director of the Division.  It does not appear that the responsibilities of the position were changed, only the title. 

ANALYSIS:

AS 39.50.020 requires public officials to file a statement giving their income sources and business interests.  “Public Official” is defined at AS 39.50.200(a)(9) to mean:

  1. a judicial officer;
  2. the governor or the lieutenant governor;
  3. a person hired or appointed in a department in the executive branch as;
      1. the head or deputy head of the department;
      2. the director or deputy director of a division;
      3. a special assistant to the head of the department;
      4. a person serving as the legislative liaison for the department;
  4. an assistant to the governor or lieutenant governor;
  5. the chair or a member of a state commission or board;
  6. state investment officers an dthe state comptroller in the Department of Revenue;
  7. the chief procurement officer appointed under AS 36.30.010;
  8. the executive director of the Alaska Workforce Investment Board;
  9. each appointed or elected municiapal officer; and
  10. the members of the board of trustees, the executive director and the investment officers of the Alaska Permanent Fund Corporation.

The position of the Division Operations Manager is not specifically listed in this section.  However the position of “the deputy director of a division” is listed at 39.50.200(a)(9)(C)(ii).  The renaming of this particular position from Deputy Director of the Division of Commercial Fisheries to Division Operations Manager of the Division of Commercial Fisheries, without a change in job description or responsibilities cannot relive the holder of the position from the obligation to file a public official financial disclosure.

The position description of Division Operations Manager in this case includes  “Act[ing] on behalf of the division director by making decisions and agreements when representing the division in meetings with division staff or other parties”, … “Serve as Acting Director in the absence of the Director” and “On behalf of the director, represent the Division of Commercial Fisheries in program coordination, policy development, problem solving, and issue resolution within the division, with other divisions within the department, and with other state agencies.”   These duties outline that of a Deputy Director of a Division which has a reporting requirement.  The Division Operations Manager is a range 24 position, as was the Deputy Director position before it.  In the email received by the APOC the requester still uses the title “Deputy Director” as her title instead of the current Division Operations Manager, and the Department of Fish and Game still lists Ms. Aspelund as a deputy director on its website.

The reason for the title change on September 1, 2008 is unknown to us.  However, if public officials had the ability to circumvent the reporting requirements by changing the title applied to a position, the financial disclosure laws would quickly be deprived of any substance.  Where, as here, the title of a job changes, but the job description and responsibilities do not, the reporting requirement should remain the same. 

Based on this analysis the Division Operations Manager is a public official as defined under AS 39.50.200 and is subject to AS 39.50 reporting requirements and should file a public official financial disclosure statement.

CONCLUSION:

The Division Operations Manager of the Division of Commercial Fisheries of the Department of Fish and Game (PCN 11-1068) is subject to AS 39.50 reporting requirements and must file a POFD statement based upon a specific position analysis.

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. 

On February 25, 2010, the Commission heard and approved Staff’s recommendation to reverse the decision in AO 09-09-POFD and not require Division Operations Managers, including Susan Aspelund, to file a POFD statement by a vote of 4-0.

APPLICABLE LAW:

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. 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 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. 39.50.200. 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 36.30.10;

((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;

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. 

On February 25, 2010, the Commission heard and approved Staff’s recommendation to reverse the decision in AO 09-09-POFD and not require Division Operations Managers, including Susan Aspelund, to file a POFD statement by a vote of 4-0.