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Eberhart v. Alaska Public Offices Commission

Supreme Court of Alaska

August 24, 2018


          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.




         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.


         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.


         "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]


         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 ...

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