Requested by: David Ramseur
Deputy Chief of Staff
Office of the Governor
Prepared by: Karen Boorman, Executive Director
Date issued: June 9, 1999
Subject: Application of AS 15.13.145 to End of Session Communication
This opinion responds the June 4, 1999, request for guidance from the Commission regarding how the campaign disclosure law applies to the Governor’s end of the session correspondence addressing the September 14 special election and other matters.
Because the Governor’s statements about the advisory question are made in his regular correspondence to his constituents at the end of session and because it does not expressly urge readers to vote for or against the question, the costs associated with production and distribution of the letter are not subject to the campaign disclosure law.
Application of Campaign Disclosure Law to Advisory Questions
AS 15.13.065(c)—"advisory questions" are considered ballot propositions for the purposes of the campaign disclosure law.
Money of the state and its political subdivisions
AS 15.13.145. (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.
You indicate that every year following adjournment of the legislative session, the Governor corresponds with his constituents about the session. You have provided the Commission with a copy of a draft letter dated June 4, 1999, which is part of this year’s communication. Among other items, the letter addresses the September 14 special election regarding use of a portion of the Permanent Fund earnings to finance public services.
You ask whether the language in the letter raises any problems under the campaign disclosure law.
To be subject to the campaign disclosure law, an action must be "intended to influence the outcome of an election." In the case of a public official corresponding with his or her constituents about a ballot proposition, it is difficult to distinguish between an official’s intent to influence a public vote and his or her duty to promote the public interest. If the official believes that a certain outcome is in the best interest of the State, the two goals may be inseparable.
If the action is part of an official’s usual and customary duties, like responding to constituent inquiries or answering 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. As a result, the action is not covered by the campaign disclosure law. The presumption does not apply, however, if the official acts outside his or her usual and customary duties—for example, by actively soliciting opportunities to voice his or her opinions on the proposition--or if the official expressly urges the public to vote for or against a ballot proposition. In that case, the action is subject to the campaign disclosure law.
Here, the Governor annually corresponds with his constituents at the end of each legislative session about the session’s outcome. Thus, the correspondence is part of a usual and customary practice, rather than a new mailing specific to the ballot proposition. In addition, the letter does not expressly urge readers to vote for or against the proposition. As a result, costs associated with the production and mailing of the letter are not subject to the campaign disclosure law.
Because the Governor’s letter is a usual and customary correspondence with his constituents and because it does not expressly urge readers to vote for or against the proposition, it is not subject to the campaign disclosure law.
The Commission approved the advice in this letter by an affirmative vote of 5-0 on June 24, 1999. 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. 907/276-4176.