Appeal
from the Superior Court No. 4FA-14-02074 CI of the State of
Alaska, Fourth Judicial District, Fairbanks, Michael P.
McConahy, Judge.
Michael J. Walleri, Gazewood & Weiner, PC, Fairbanks, for
Appellant.
Laura
Fox, Assistant Attorney General, Anchorage, and James E.
Cantor, Acting Attorney General, Juneau, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
CARNEY, JUSTICE
I.
INTRODUCTION
This
appeal arises from a complaint filed with the Alaska Public
Offices Commission (APOC) against then-city council member
John Eberhart for actions taken during his campaign for mayor
of Fairbanks. The complaint alleged that Eberhart had
improperly used government resources in his mayoral campaign.
After investigating the complaint and holding a hearing, APOC
fined Eberhart $37.50 for improper use of government
resources in violation of a state statute. Eberhart appealed
to the superior court, which affirmed APOC's decision.
Eberhart asks this court to find that APOC misinterpreted and
misapplied relevant statutes, violated the First Amendment,
and violated its own procedural rules. We affirm APOC's
decision, holding that Eberhart's arguments lack merit.
II.
FACTS AND PROCEEDINGS
In
April 2013 Fairbanks city council member John Eberhart filed
a letter of intent to become a candidate for the office of
mayor. In July Eberhart emailed the city clerk asking for all
of the ordinances and resolutions that he and his election
opponent, Vivian Stiver, had sponsored or co-sponsored as
city council members. Eberhart used his city email account to
send the request. After receiving the information, Eberhart
asked the clerk to notify him "if anyone else requests
such information about me." In August Eberhart filed his
formal declaration of candidacy for mayor and listed his city
email address under "contact information [that] can be
provided to the public and to the media."
In
early February 2014 a Fairbanks resident filed a complaint
against Eberhart with APOC. The complainant alleged that
Eberhart had used his private employer's corporate
resources to make a campaign telephone call, had worked on
his campaign during hours for which he was being paid by his
employer, and had illegally used city resources - his city
email address - in his campaign. In support of the alleged
email violation, the complainant attached the official
candidate list published by the city clerk listing
Eberhart's city email address as contact information and
an excerpt from the Fairbanks city code[1] prohibiting
elected officials from using city resources on behalf of a
candidate.
After
receiving the complaint APOC staff opened an investigation.
Staff requested copies of all emails sent from Eberhart's
city email account from April 1 to October 1, 2013. In late
February 2014 APOC staff asked Eberhart to explain the email
exchange in which he had asked the city clerk to provide the
ordinances and resolutions he and his opponent had sponsored.
Eberhart's
attorney responded with a letter asking APOC to dismiss the
complaint. The letter asserted that the telephone call and
whether Eberhart was paid for campaign time should not be
investigated and objected that the complaint did not allege
specific facts or identify a specific statute or regulation
as required. The letter did not respond to the email address
allegation at all. In response APOC staff argued that the
resident's complaint should not be dismissed and defended
it as adequate to sustain an investigation. Staff argued that
whether Eberhart had "used city resources for campaign
purposes" was a factual question best left to APOC.
APOC
staff issued its investigative report on March 10 without
receiving a response from Eberhart regarding the email
exchange. The report concluded that Eberhart had violated a
state statute by using the city email system to help his
campaign. The report concluded that most of Eberhart's
emails had "nothing to do with campaigning" or were
permissible "nonpartisan educational election-related
communications." But it identified the email exchange
with the city clerk as a possible violation because it
appeared to have been "made in furtherance of the
campaign" as Eberhart sought only his own and his
mayoral opponent's records. Because "the cost of
sending the three emails was de minimus" [sic]
and did "not cause significant harm to the public,"
the report recommended a $37.50 fine be
imposed.[2]
On
March 12 Eberhart filed an answer to the investigative report
arguing again that the complaint was inadequate. He also
asserted that his actions were constitutionally protected as
political speech and "a legitimate use of government
resources in furtherance of the legislative deliberative
process of the City government." Eberhart claimed that
the complainant and APOC staff were engaged in "a
malicious prosecution." APOC set a hearing for May 1.
In late
April 2014 Eberhart filed a prehearing memorandum. In it he
asserted that the burden was on APOC staff to prove that his
email influenced the election, not on him to show a
legitimate purpose. He invoked the deliberative process
privilege and his free speech rights under the First
Amendment. He also argued that APOC staff had improperly
expanded the investigation beyond the complaint and were
biased against him.
Eberhart
testified at the May hearing, but he objected that the
questions infringed on his First Amendment rights and invaded
his deliberative process privilege. Eberhart claimed that his
opponent's supporters had been attacking him at city
council meetings and he had asked for the resolutions and
ordinances to defend himself against such attacks. He
specifically testified that he did not intend to use the
records in the campaign when he requested them. An APOC staff
investigator testified that she had requested the email
records to see whether Eberhart had used his city email
address for campaign purposes.
The
parties disputed whether the investigation into the contents
of Eberhart's emails had expanded the original
investigation or was merely part of it. Eberhart argued that
APOC staff was pursuing a municipal officer for using public
information legitimately obtained on the job in his election
campaign.
APOC
issued a final order finding that Eberhart had violated AS
15.13.145(a)(4).[3] The order noted that in a previous case
APOC[4]
had found that "the use of municipal assets or property
such as an email system for campaign purposes [was]
prohibited by this section." APOC "conclude[d] that
it [was] more likely than not that the request, focused on
[Eberhart]' s record and his opponent's record
(rather than on the record of all other city council
members), was to obtain information that could be used to
influence the mayoral election." The order also
acknowledged that the use of resources could be considered
de minimis and therefore agreed with the
recommendation to reduce the civil penalty to $37.50 from a
possible $150.[5]
Eberhart
appealed the order to the superior court, listing 14 points
on appeal. Among them he challenged whether APOC had
substantial evidence to support its findings. The court
rejected all of Eberhart's claims on appeal.
Eberhart
appeals.
III.
STANDARD OF REVIEW
"When
the superior court has acted as an intermediate court of
appeal, we review the merits of the administrative
agency's decision . . . ."[6] "[W]hen the
interpretation at issue implicates agency expertise or the
determination of fundamental policies within the scope of the
agency's statutory functions[, ]"[7] then "[w]e
give deference to [an] agency's interpretation of a
statute so long as it is reasonable[.]"[8]"[W]hen the
statutory interpretation does not involve agency expertise,
or the agency's specialized knowledge and experience
would not be particularly probative[, ]"[9] then "we
will substitute our own judgment for questions of
law."[10] "Constitutional issues are
questions of law subject to independent
review."[11]
IV.
DISCUSSION
A.
Eberhart Has Abandoned Any Argument That The Agency's
Factual Findings Were Not Supported By Substantial
Evidence.
APOC
argues that Eberhart did not challenge any of the
agency's factual findings in this appeal.[12] In his reply
brief Eberhart dismisses APOC's argument as a
"false[] claim[]." He asserts that "[a]ll the
evidence in the record establishes that Eberhart['s]
purpose [in sending the email and requesting the information]
was to address issues arising in City Council meetings."
But he does not point us to anything in his opening brief or
statement of points on appeal to show he had actually
challenged APOC's factual findings prior to this short
statement in his reply brief. Nor is there any reference to
the substantial evidence standard of review for such issues
in his reply brief or elsewhere in his briefing to this
court. In contrast Eberhart specifically argued to the
superior court that APOC's factual findings were not
supported by substantial evidence. We have previously held
that an argument omitted from an appellant's points on
appeal and not mentioned in the opening brief is
abandoned.[13] We have further held that
"[a]ttention to the issue in a reply brief does not
resuscitate it."[14] Accordingly, we do not address the
merits of whether APOC's factual findings were supported
by substantial evidence as that issue has been abandoned by
Eberhart on appeal.
B.
Eberhart's Arguments Related To The Interpretation Of AS
15.13.145 Are Without Merit.
1.
The phrase "to influence the outcome of the
election" does not require proof of actual
influence.
Alaska
Statute 15.13.145 prohibits the use of "money held
by" public entities - including the State, state
agencies, municipalities, and officers or employees of such
entities - "to influence the outcome of the election of
a candidate to a state or municipal office." APOC found
that Eberhart's actions violated the statute because it
was more likely than not that he used his municipal email
"to obtain information that could be used to influence
the mayoral election." Eberhart argues that the statute,
by its plain text, only punishes acts that actually
influenced an election. APOC responds that the words"
'to influence' put the focus on the purpose behind
the spending, not its effects."
The
word "to" can be "used as a function word to
indicate purpose, intention, tendency, result, or
end."[15] As Eberhart argues, courts
"ordinarily resist[] reading words or elements into a
statute that do not appear on its face."[16] But the word
"to" appears on the face of the statute, and one of
its common meanings entails purpose or intent.[17] Accordingly
APOC's interpretation of the statute, that "to
influence" means "for the purpose of
influencing," is both reasonable and in keeping with the
general rule that courts not read additional terms into a
statute.[18]
As APOC
argues, Eberhart's interpretation would be unworkable
because "whether any particular action or event actually
influenced an election is often unknowable." Even AS
15.20.540, which permits an election contest, does not
require challengers to prove that an election official's
"malconduct, fraud or corruption" actually
influenced the election; it requires them only to prove that
the bad acts were "sufficient to change the result of
the election."[19] Contrary to Eberhart's assertion,
Dansereau v. Ulmer does not require evidence of
actual influence-either in an election contest under AS
15.20.540, which is the context of that case, or in the
present context.[20] It would be illogical for AS 15.13.145
to require proof of actual influence resulting from
inappropriate use of public money when that level of proof is
not required to overturn the result of a completed
election.[21]
2.
It was reasonable for APOC to interpret "money" to
include property and assets including the city's email
system.
Eberhart
argues that APOC was wrong to interpret ASl5.l3.l45's ban
on the use of municipal "money" to include his use
of the city email system. He argues that because APOC did not
determine the cost or value to the city of the email, there
is no suggestion that he "used any money belonging to
the City" or cost the city any money, and therefore he
did not violate the statute. His reply brief argues that,
because the legislature did not define "money" in
AS 15.13.400, [22] the legislature intended to define
"money" by its "common usage" which would
"exclude[] emails."
APOC
argues that it has formally and publicly interpreted
"money" to include the use of resources beyond just
cash. It promulgated a regulation interpreting AS 15.13.145,
which establishes that in this context" 'money'
means government money, government property and assets, and
the use of property, assets, or human resources belonging to
a government entity."[23] And a 2008 APOC decision
concluded that AS 15.13.145(a)'s prohibition on the use
of public money to influence a candidate election
"cover[ed] the use of a publicly owned email system,
which is purchased and maintained through public
money."[24]
"Agency
interpretations are not binding on our interpretation of a
statute, "[25]but we "give deference to an
agency's interpretation of a statute when the question
involves fundamental policy decisions or administrative
expertise"[26] unless the interpretation is
unreasonable.[27] When agency expertise "would not be
particularly probative on the meaning of the statute,"
we independently interpret the statute.[28] We do not
need to resolve which standard applies in this case because
APOC s interpretation is the most logical and reasonable
interpretation of the statute.
The
dictionary definition of "money" focuses on cash or
legal tender.[29] But APOC's argument that "the
city's money is used to establish and maintain" its
email system is well taken. It is unlikely that the
legislature, in attempting to "restore the public's
trust in the electoral process and to foster good government,
"[30] intended to bar public cash from being
used to influence elections for a candidate but intended to
allow non-monetary resources, purchased and maintained with
public cash, to be used for the same purpose. The most
reasonable interpretation of the term "money,"
given the definition in 2 AAC 50.356(d), includes the use of
a city-established and maintained resource like the email
system.
C.
It Was Not A Violation Of The First Amendment To Enforce The
Statute Without A Finding That Eberhart Engaged In
Corruption.
Eberhart
argues that the only constitutionally legitimate government
interest for regulating campaign finances is "preventing
corruption or the appearance of corruption,
"[31] and that the First Amendment requires
the enforcing entity to demonstrate its corruption prevention
purpose by proving the existence of corruption each time it
enforces campaign finance laws.[32] Eberhart asserts that the
fine imposed under AS 15.13 was unconstitutional because APOC
did not find any "existence or appearance of
corruption."[33] This argument mistakes the requirement
that a statute ...