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HomeMy WebLinkAboutResolution No. 2010-23Ar city al KENAI. ALASKA Suggested by: Councilors Marquis and Smalley CITY OF KENAI RESOLUTION NO. 2010 -23 A RESOLUTION OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, OPPOSING "(078NC0) BALLOT MEASURE 1" WHICH WILL BE ON THE 2010 ALASKA PRIMARY ELECTION BALLOT. WHEREAS, on August 24, 2010, an initiative will be on the Alaska primary ballot which will ask the voters to decide if public funds can be used for election campaigns; and, WHEREAS, the Kenai City Council believes this law goes much deeper than is stated; and, WHEREAS, municipalities would be affected in the following way: Municipalities will NOT be able to hire lobbyists for capital projects or for help with Legislation; Elected officials will not be able to travel to Juneau to talk with the Legislature unless they pay for their travel and lodging with their own money; and, Municipalities will NOT be able to have ANY person lobby unless they are specifically invited by a Legislator. WHEREAS, the City of Kenai depends on a close working relationship with the state legislature; and, WHEREAS, this initiative would seriously disrupt that relationship, to the detriment of all Alaskans; and, WHEREAS, this initiative would seriously infringe upon the citizens' right to communicate with their elected officials; and, WHEREAS, holders of state or local government contracts of over $500 a year would be prohibited from making political contributions, as well as would their family members; and, WHEREAS, if your sister's husband sells office supplies to any local government, (a purchase order can be construed as a contract), you and the rest of your family will be prohibited from taking part in individual campaigns initiatives and ballot propositions; and, WHEREAS, non profits who receive local or state funds or grants would find their board members and their immediate family could no longer take part in government issues; and, WHEREAS, this bill will bring government in the State of Alaska to a virtual stop; and, Resolution No. 2010 -23 Page 2 WHEREAS, Alaska's recent corruption issues did not involve the campaign finance structure and this initiative would NOT have prohibited legislators from taking cash bribes; and, WHEREAS, the term "anti- corruption" is a very misleading term used by the proponents of the initiative, as in reality it is a basic attack on our Constitutional rights of free speech and our right to petition our government for redress; and, WHEREAS, this initiative has been submitted and funded by a man from New York City who has also filed this initiative in at least three other states; and, WHEREAS, this initiative has passed in only one of those states (Colorado) three years ago and was just recently struck down as unconstitutional. NOW, THEREFORE BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, the City of Kenai stands opposed to the Ballot Measure 1. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA this seventh day of July, 2010. ATTEST: 1 Carol L. Freas, y Clerk PAT PORTER, MAYOR RYAN MARQUIS (907) 283 -7405 Ph. (907) 398 -8058 Cell mar•uisforkenai.com a a To: Mayor Porter, Council Members Boyle, Eldridge, Molloy, Moore, Smalley From: Council Member Ryan Marqui Date: 4 -01 -2010 Subject: Resolution No. 2010 -23: A RESOLUTION OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, OPPOSING "AN INITIATIVE CREATING AN ALASKAANTI- CORRUPTION ACT" WHICH WILL BE ON THE 2010 ALASKA PRIMARY ELECTION BALLOT I'm respectfully requesting your support on this resolution to oppose this unconstitutional and misleading initiative that strikes at the very heart of our right to free speech. I fear that this initiative may solicit significant voter approval based on it being dubbed "Anti Corruption It is my belief that the crafter of this initiative was being intentionally deceiving, in an effort to secure passage. One example of the negative impacts passage of this proposition would have is that it would take the voice away from our community's small business owners. For example, if a local business sold anything to a government and received more than $500, they, as well as their family members, would then be prohibited by law from making any political contributions. If, say a local seamstress repaired a theatre curtain at one of our schools and was compensated more than $500, that seamstress is no longer allowed to contribute to political campaigns and this ban extends to their families. This is just the tip of the iceberg of the harm that this proposition could cause our citizens, local businesses, and local governments. The Honorable Sean R. Parnell Lieutenant Governor P.O. Box 110015 Juneau, Alaska 99811 -0015 December 18, 2007 Re: Review of 07ANCO Initiative Application A.G. file no: 663 -08 -0057 Dear Lieutenant Governor Parnell: I. INTRODUCTION You have asked us to review an application for an initiative entitled "An Initiative Creating An Alaska Anti Corruption Act." We find no legal problems with the bill that warrant denial of certification and so we recommend that you certify the application. II. SUMMARY OF THE PROPOSED BILL The bill is comprised of two sections with the stated objective of reducing the appearance of corruption in government. Section 1 is essentially a prohibition on use of public funds for electioneering, repeating the prohibition against the use of public funds in candidate campaigns that appears in AS 15.13.145, and adding a prohibition against the use of public funds to advocate in ballot measure campaigns. The section also supplements penalties for violating prohibitions against government spending in campaigns. Section 2 prohibits contractors on public works construction projects from making contributions to candidates. It also provides for civil and criminal penalties for violations. Section 1 prohibits the use of tax revenues or public resources for campaign, lobbying or partisan purposes. The law now permits the use of public funds in a ballot measure campaign if the legislature or local legislative body appropriates funds for that purpose but prohibits public spending in candidate campaigns. See AS 15.13.145. Section 1 would prohibit any advocacy in a campaign without regard to legislative authorization. This section prohibits the acceptance of contributions of public funds, duplicating a similar provision in AS 15.13.072, which prohibits the solicitation or Hon. Sean R. Parnell December 18, 2007 A.G. file no: 663 -08 -0057 Page 2 acceptance of unlawful contributions. Section 1 also prohibits the use of public funds to lobby. Current law exempts state public officials from the definition of `lobbyist" in recognition of the need for executive and legislative branches to confer on legislation and budget issues. The prohibition probably was not intended to cover this conferral but, instead, was directed at spending for a professional lobbyist. This section provides that a violation of the section is a class A misdemeanor, duplicating AS 15.56.012, which makes a knowing violation of AS 15.13 a class A misdemeanor, and provides the additional remedy of restitution. It also provides that, if a person violates this section more than once, that person is barred from holding public office or employment with the state or any political subdivision for 10 years. There is no administrative remedy or procedure provided in the section, although current law provides an administrative procedure for conduct that already is a violation under AS 15.13. AS 15.13 380. Subsection (C) of section 1. provides that section 1 does not apply to communications between a legislator and legislative staff or public officer, communications by an elected official with constituents, appearances by a public officer or employee before a public body to provide information, a public employee acting in a personal capacity, or certain public employees who assess the impact of proposals that affect the administration of government. Because communications are not prohibited in the section, it is unclear what subsection (C) means except to ensure that the prohibition against public spending for lobbying is not interpreted to prohibit communication by public officials with legislators and their staff. Subsection (D) of section 1 contains definitions. The definitions are quite broad. Fnr instance, the "use of tag revenues or any other public reso is defined s that the prohibition against the use of such funds for campaign, lobbying or partisan purposes encompasses uses of public funds in support of or in opposition to legislation or ballot measures. It would also prohibit incurring any expense for public employee paycheck designations for donations to an organization that engages in lobbying activities, unless such organization is a qualified 50I (c)(3) entity under the Internal Revenue Code. This prohibition would need to be reconciled with AS 23.40.220, which requires a public employer, including the state, to deduct from payroll the monthly dues and other fees and pay them to a union when authorized by a public employee. The definitions section also contains an applicability section extending the applicability of the section to all state and local government in Alaska, as well as their officers, agents and employees. Section 2 contains a number of prohibitions designed to eliminate the involvement in campaigns of persons who contract with a government entity. Subsection (A) prohibits a person from entering into a government contract if the person employs a current or Hon. Sean R. Parnell December 18, 2007 A.G. file no: 663 -08 -0057 Page 3 former legislator or legislative staff person who is less than two years removed from that position. Violation of this provision is a class A misdemeanor. Additionally, the contract may be forfeited and any amounts paid under the contract returned as restitution. The provision makes an exception for legislators and legislative staff that engaged or were certified in the profession or occupation "within one year" prior to becoming a legislator or legislative staff person. The section does not provide procedures for certification. Because it also fails to authorize regulations, it is unclear how the state would implement the certification provision. Subsection (B) prohibits a legislator, candidate, or public official from soliciting or accepting a campaign contribution from a holder of a government contract. Violation of this provision is a class A misdemeanor. Amounts received in violation of this section must be returned as restitution to the contributor and an equal amount paid as restitution to the state. Repeat violators are barred from holding public office or employment with the state or any political subdivision for two years. Subsection (C) provides that a person holding "no -bid" government contracts is a "holder of a government contract" (likely meaning that a legislator, candidate, or public official may not receive contributions from them under subsection (B)). Persons holding no -bid government contracts also are contractually bound to stop making or soliciting contributions and to stop making independent expenditures (a term used and defined in AS 15.13) to elect or defeat candidates during the term of the contract and for two years after it terminates. Because the prohibitions appear limited to holders of "no -bid" contracts, presumably, other persons who became public contractors after participation in a bidding procedure, can make contributions and independent expenditures regarding candidates for public office. The provision requires double restitution for violations. Repeat violators are barred from holding public office, entering into a contract, or employment with the state or any political subdivision for a period of three years. Subsection (D) provides that subsection (C) may be enforced in superior court by anyone, and that such person is immune from any legal action for so doing. Subsection (E) contains the definitions for section 2. Like the definitions for section 1, they are broad For instance, the definition of "government contract" also includes a collective bargaining agreement with a labor organization. `Holder" of a government contract includes any person that has a five percent interest in a party to the contract. The definitions section also contains an applicability section extending the applicability of the section to all state and local government in Alaska, as well as their officers, agents and employees. Hon. Sean R. Parnell December 18, 2007 A.G. file no: 663 -08 -0057 Page 4 Subsection (H) requires the State of Alaska to publish a summary of all government contracts on its website. The summary must contain details of the contract, including the parties, the term, and estimated amount to be paid. Section 3 provides that if there is existing law that is less protective than this bill, the provisions of the bill will apply. Section 4 is a severability provision similar to AS 01.10.030. III. ANALYSIS Under AS 15.45.070, the lieutenant governor is required to review an application for a proposed initiative and either "certify it or notify the initiative committee of the grounds for denial" within 60 days of receipt. The grounds for denial of an application are that (1) the proposed bill is not in the required form; (2) the application is not substantially in the required form; or (3) there is an insufficient number of qualified sponsors. AS 15.45.080. We discuss these next. A. FORM OF THE PROPOSED BILL The form of a proposed initiative bill is prescribed by AS 15.45.040, which requires that (1) the bill be confined to one subject; (2) the subject be expressed in the title; (3) the enacting clause state, `Be it enacted by the People of the State of Alaska"; and (4) the bill not include prohibited subjects. The prohibited subjects dedication of revenue, appropriations, the creation of courts or the definition of their jurisdiction, rules of court, and local or special legislation are listed in AS 15.45.010 and in article XI, section 7, of the Alaska Constitution. The bill satisfies each of these four requirements. With respect to the requirement that the bill be confined to one subject, we note that the bill proposes restrictions on use of public funds for electioneering, as well as restrictions on participation in campaigns and lobbying by persons with interests in certain government contracts. While these are potentially different subjects, the overall objective of the bill is to reduce corruption in government, and both sets of restrictions are calculated to implement such purpose. We have recently considered the single subject rule in the initiative context, and noted the many cases in which the Alaska Supreme Court has adopted a lenient threshold for determining whether the single subject rule is satisfied. See 2007 Op. Att'y Gen. 10 -12 (July 18; 663 -07- 0191). We think that the unifying theme in 07ANCO is government ethics and that all the sections in the bill fairly relate to this subject. Hon. Sean R. Parnell December 18, 2007 A.G. file no: 663 -08 -0057 Page 5 With respect to the remaining requirements, the subject of the bill is alluded to in the title "creating an Alaska anti corruption act The enacting clause is set out correctly. The bill does not contain any of the prohibited subjects. While we recommend the initiative be certified, we do note some legal issues with the bill. We raise these issues here. Subsections 2(B) and (C) of the bill impose a ban on certain political contributions by holders of government contracts. As we have previously observed, the U.S. Supreme Court is vigilant with respect to protecting First Amendment rights in the campaign finance context. 2007 Op. Att'y Gen. 1 -2, (Aug. 8; 663 -07- 0191). Although the Alaska Supreme Court has upheld a number of contribution bans in State v. Alaska Civil Liberties Union, 978 P.2d 597, 607 -633 (Alaska 1999), the bans proposed here (particularly with regard to the bans on campaign spending by persons holding small public contracts) are quite broad and may not pass muster. We are particularly concerned about the prohibitions on campaign expenditures (defined in AS 15.13), which the courts have been extremely careful to protect. Although the constitutionality of this bill's ban on political contributions by holders of government contracts could be challenged at some point, courts in Alaska will not entertain such challenges until after the measure has been enacted by the people. See Alaskans for Efficient Government, Inc. v. State, 1 P.3d 296, 298 (Alaska 2007) (constitutional issues not identified as prohibited subjects may only be considered after initiative becomes law). We also note that section 1 prohibits the use of public funds for on a ballot measure campaign. As a constitutional matter, the legislature may appropriate money for any public purpose. Alaska Const. art. IX, 6. While our courts have not ruled on whether an appropriation for such purposes is for a public purpose, the courts have adopted a fairly broad test. See DeArmond v. Alaska State Dev. Corp., 376 P.2d 717, 721 (Alaska 1962) (public purpose is what legislature says it is unless arbitrary and without basis in fact). Thus, it is conceivable that if this ballot measure were enacted, the legislature could, consistent with the constitution, appropriate funds in violation of this provision. We doubt that the courts would enforce against the legislature a statute that restricts the constitutional power of appropriation. Acceptance of such appropriated funds, however, could expose the recipient to criminal and civil sanctions. We also note in this regard, that the Alaska Constitution prohibits an initiative from repealing an appropriation. Alaska Const. art. XI, 7. This measure does not repeal an existing appropriation —it merely seeks to prevent the legislature from using its appropriation power for certain purposes in the future. Thus, we do not think that this provision violates the restriction against initiatives repealing an appropriation. And, as just noted, we doubt that such provision would be enforceable against the legislature. Hon. Sean R. Parnell December 18, 2007 A.G. file no: 663 -08 -0057 Page 6 B. THE FORM OF THE APPLICATION The form of an initiative application is prescribed in AS 15.45.030, which provides: The application must include the (1) proposed bill; (2) printed name, the signature, the address, and a numerical identifier of not fewer than 100 qualified voters who will serve as sponsors; each signature page must include a statement that the sponsors are qualified voters who signed the application with the proposed bill attached; and (3) designation of an initiative committee consisting of three of the sponsors who subscribed to the application and represent all sponsors and subscribers in matters relating to the initiative; the designation must include the name, mailing address, and signature of each committee member. AS 15.45.030. The application meets the first and third requirements as well as the latter portion of the second requirement regarding the statement on the signature p With respect to the first clause of the second requirement, the Division of Elections within your office determines whether the application contains the signatures and addresses of not less than 100 qualified voters. C. NUMBER OF QUALIFIED SPONSORS The Division of Elections within your office will determine whether there are a sufficient number of qualified sponsors. IV. PROPOSED BALLOT AND PETITION SUMMARY We have prepared the following ballot -ready petition summary and title for your consideration: Hon. Sean R. Parnell December 18, 2007 A.G. file no: 663 -08 -0057 Page 7 INITIATIVE PROHIBITING PUBLIC FUNDS FOR ELECTION CAMPAIGNS; ALSO PROHIBITING CAMPAIGN CONTRIBUTIONS BY HOLDERS OF GOVERNMENT CONTRACTS This summary has a Flesch test score of 57.1. We believe that the summary meets the readability standards of AS 15.60.005. V. CONCLUSION This bill would ban the use of public funds for political campaigns and lobbying. Funds could not be used to support or oppose a ballot measure. The bill would limit political involvement in government contracts. It would ban political contributions by holders of government contracts. It would ban legislators and their staff from being employed by holders of government contracts for two years after leaving state service. The bill has criminal and civil penalties. Should this initiative become law? For the above reasons, we find that the proposed bill is in the proper form, and therefore recommend that you certify this initiative application. MAB /rca Please contact me if we can be of further assistance to you on this matter. cc: Whitney Brewster Director of Division of Elections Office of the Lieutenant Governor Sincerely, TALIS J. COLBERG ATTORNEY GENERAL By: Michael A. Barnhill Senior Assistant Attorney General AN INITIATIVE CREATING AN ALASKA ANTI- CORRUPTION ACT BE IT ENACTED BY THE PEOPLE OF THE STATE OF ALASKA: Section (1) The laws of Alaska are amended to create a section to read as follows: Public resources from any source not to be used or received to further any political agenda (A) No public body, public officer, person in the employ of the state, any of its political subdivisions, any school district, or candidate for public office may, directly or indirectly, direct, permit, receive, require, or facilitate the use of tax revenues or any other public resources for campaign, lobbying, or partisan purposes, including payment of dues or membership fees of any kind to any person, league, or association which, directly or indirectly, engages in lobbying, campaigns, or partisan activity. No candidate, political committee, or political party may accept any contribution from any state, state agency, political subdivision of the state, foreign govemment, federal agency, or the federal government. A violation of this section is a Class A misdemeanor. (B) Any person who knowingly spends or receives funds in violation of this section shall pay full restitution for the greater of the public cost or for the market value of any misappropriated resources. The second or subsequent violation by a public officer or employee shall render that person ineligible to hold public office or employment with the state or any of its political subdivisions for ten years. (C) The provisions of this section do not limit public officials in the performance of their constitutional duties, and do not apply to: (1) Communications among and between a member and a staff member of a legislative body; (2) Comments by an elected official or communications from an elected official that are designated for constituents; (3) Appearances by a public officer or employee pursuant to a specific request to appear before a public body to provide information; (4) Communications between an elected or appointed public officer and a legislator or a legislative staff member; (5) A public employee acting in an uncompensated personal capacity, undirected in any manner by, and who does not purport to represent the interests of, a public employer; and Page 1 of 5 (6) An authorized employee of the office of the Governor, the Supreme Court, or the Alaska Department of Revenue, whose responsibilities are to assess the impact of proposals which affect the administration of government. (D) Definitions. Terms as used in this section mean: (1) "Direct, permit, receive, require, or facilitate the use of tax revenues or any other public resources for campaign, lobbying, or partisan purposes includes (i) the use of public funds or credit, facilities, rights of access, equipment, supplies, or trademarks to influence any state, municipal, or school board election; (ii) undertaking, promoting, or distributing studies, surveys, analyses, descriptions, or other communications using public resources in a manner specifically calculated to induce support of, or opposition to, proposed legislation or ballot questions; and (iii) incurring any public administrative expenses or activities to allocate or designate portions of public employee income to entities that engage in lobbying activities, other than charitable organizations qualified as exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code, or the corresponding section of any other future tax code. (2) "Campaign," includes (i) communications or expenditures related to the pursuit of a public office, either electoral or appointive; (ii) all lobbying activity; or (iii) efforts paid in whole or in part by public revenues or resources to coordinate or induce members of the general public or any segment thereof to directly influence legislative activity by communicating with members of a legislative body, supporting or opposing legislation, or supporting or opposing a petition drive or ballot question. (3) "Lobbying," means attempts to directly influence legislative activity by communication with any member or employee of a legislative body, or with any government official or employee who may participate in the formulation of legislation. (4) "Person," includes any individual, business entity, governmental entity, organization, committee, political party, campaign fund, and association. (5) "Public officer or person in the employ of," includes any person who is elected, appointed, or employed by this state, or any political subdivision or school district in this state, including persons who are independent contractors or consultants hired by the state, a political subdivision, or school district in this state. (E) This section applies to the State of Alaska, home rule and general law municipalities, and state, independent and municipal school districts, and State, municipal and school district officers, agents, and employees. Section (2) The laws of Alaska are amended to create a section to read as follows: Restrictions to reduce corruption relating to certain public contracts. (A) No person may enter into a government contract if such person also employs, hires, or retains the services of a current or former legislator or legislative staff member who is less than two years removed from such public position. A person who knowingly violates Page 2 of 5 this prohibition is guilty of a class A misdemeanor and shall, in addition to other penalties, forfeit any contractual rights to any payment or reimbursement, and shall make restitution to the state in the amount of funds accrued during the period of violation. This subsection shall not apply to a bona fide position, trade, occupation, or profession in which a person engaged or obtained certification within one year prior to becoming a legislator or legislative staff member. (B) Beginning on the date a govemment contract is awarded and extending until two years following the conclusion of that contract, no holder of the public office with ultimate responsibility for the award of the contract, no candidate for that office, and no person acting on behalf of either may knowingly solicit, accept, or direct a contribution from the holder of the government contract or an immediate family member of the holder. No candidate or other person may knowingly accept or make a contribution that is solicited or directed in violation of this subsection. A person who knowingly violates this prohibition is guilty of a class A misdemeanor and shall, in addition to other penalties, make full restitution to the donor and shall pay restitution in a like amount to the state. If the person has previously been convicted of violating this prohibition, the person shall be ineligible to hold public office or employment with the state or any of its political subdivisions for two years, (C) Any person entering into a no -bid government contract awarded by the State or any of its subdivisions shall be considered a holder of a government contract and shall contractually agree to cease making, inducing, or soliciting contributions or independent expenditures, directly or indirectly, through any officer, employee, immediate family member of any officer or employee, vendor, or agent, to or for the benefit of any candidates for any elected office of the state or any of its political subdivisions, or to persons who intend to make such contributions within the state or any of its political subdivisions, for the duration of the contract and two years thereafter. The contractual agreement shall provide that any violation of this provision by the holder of the government contract shall, in addition to other legal consequences, result in forfeiture of any co ntra c tual rights to payment u nder the contract and in payment of restitution to the state in an amount of not less than twice the amount of the contribution. Any person who knowingly violates this provision, or accepts contributions on behalf of a candidate or other entity in violation of this provision, shall pay restitution to the state in an amount not less than twice amount of the contribution. If the treasurer of any entity subject to such agreement obtains knowledge of a contribution made or accepted in violation thereof by that entity, then liability for the violation shall be also attributable to the treasurer unless the treasurer notifies the State of Alaska about the violation in writing within three business days of learning of such contribution. If a person has previously been determined responsible for violating this section, the person shall be ineligible to hold public office, any contract, or employment with the state or any of its political subdivisions for three years. The governor may temporarily suspend any debarment under this Subsection (C) during a declared state of emergency. (D) A violation of Subsection (C) may be established and enforced by the filing of an action in the Alaska Superior Court. This action may be initiated by the State, any municipality or school district, any private group or entity, or any member of the public. If an action to establish and enforce the provisions of Subsection (C) is filed by a person Page 3 of 5 acting in a private capacity, or any other non governmental group or entity, the claim may be prosecuted by the State or the person or entity initiating the action. Any person, government, group or entity that initiates an action pursuant to the subsection shall be immune from any claim or legal action for doing so. (E) Definitions. Terms as used in this section mean: (1) "Contribution," means a purchase, payment, promise or obligation to pay, loan or loan guarantee, deposit or gift of money, goods, or services for which a charge is ordinarily made and that is made for the purpose of influencing the nomination, election, or selection of a candidate for public office, either elective or appointive, or for the purpose of influencing an initiative, ballot proposition, or question, including payment to another person for the purpose of that person's influencing the nomination, election, or selection of a candidate for public office, either elective or appointive, or for the purpose of influencing an initiative, ballot proposition, or question. "Contribution" does not include personal services rendered without compensation by individuals volunteering all or part of their time for these purposes. (2) "Government contract," includes any contract awarded by an agency or department of this state or any public body receiving state subsidy or authorized to levy taxes, for the purchase of goods or services for amounts greater than five hundred dollars, indexed for inflation per the Consumer Price Index after the year 2010. A contract for services includes collective bargaining agreements with a labor organization representing employees but not employment contracts with individual employees; (3) "Holder of the government contract," includes any party to the contract, including partners, owners of five percent or more interest, officers, administrators or trustees of any person who is a party to the contract, or, in the case of collective bargaining agreements, the labor organization and any political committees created or controlled by the labor organization; (4) "Holder of the public office with ultimate responsibility for the award of the contract," means any elected official who may award the contract or appoint an official responsible for awarding the contract, or any elected official ofa public body where the contract is awarded by that public body; (5) "Immediate family member," includes any spouse, child, spouse's child, son daughter -in -law, parent, sibling, grandparent, grandchild, step brother- sister, step- parent, parent -in -law, brother -in -law, sister -in -law, aunt, uncle, niece, nephew, guardian, and domestic partner; (6) "No -bid government contracts," includes all government contracts that do not use open, blind competitive bidding processes for procurement. Collective bargaining agreements qualify as no -bid government contracts if the contract confers an exclusive representative status to bind all employees to accept the terms and conditions of the contract; (7) "Person," includes any individual, business entity, governmental entity, organization, committee, political party, campaign fund, and association. Page 4 of 5 (F) This section applies to the State of Alaska, home rule and general law municipalities, and state, independent and municipal school districts, and State, municipal and school district officers, agents, and employees. (G) Nothing in this section shall affect the right of the State to suspend, debar, or otherwise sanction government contractors as authorized by Title 36 of the Alaska Statues and implementing regulations. (H) The State of Alaska shall promptly publish a summary of each government contract in a searchable website accessible from a conspicuous place on its official website. Any holder ofa government contract shall promptly prepare and deliver to the State of Alaska a true and correct "Government Contract Summary", in digital format as prescribed by the State, which shall: (1) identify the names and addresses of the holders and all other parties to the government contract, (2) briefly describe the nature of the contract, including wether the contract was awarded based on a competitive bidding procedure or was a contract awarded with no bid, and goods involved or services performed, (3) disclose the estimated duration and end date of the contract, (4) disclose the contract's estimated amount, and apportioned sources of payment, and (5) disclose other relevant contract information as specifically required by the State of Alaska, including verbatim copies of all contract documents, to the extent disclosure would not violate federal or other state laws. Section (3) Non Applicability of Less Protective Laws If any provisions of the Alaska Statutes or the Alaska Administrative Code conflict with this Act and are less restrictive or less protective of the public interest than this Act, then this Act shall apply. Section (4) Severability The provisions of this Act are independent and severable, and if any provision of this Act, or the applicability of any provision to any person or circumstance, shall be found to be invalid, the remainder of this Act shall not be affected and shall be given effect to the fullest extent practicable. Page 5 of 5 APR -01 -2010 10:01 AM Rep. Chenault 465 2833 (907) 485.3867 or 465.2450 FAX (907) 465 -2029 Mail Stop 3101 MEMORANDUM February 15, 2010 The Initiative LEGAL SERVICES DIVISION OF LEGAL AND RESEARCH SERVICES LEGISLATIVE AFFAIRS AGENCY STATE OF ALASKA. P. 2/15 State Capitol Juneau, Alaska 99801 -1182 Deliveries to 129 6th St., Rm. 329 SUBJECT: 07ANCO (Anti Corruption Initiative) questions and analysis (Work Order No. 26- LS1439) TO: Representative Mike Chenault Speaker of the House Attn: Tom Wright FROM: Alpheus Bullard T` Legislative Counsel You requested a legal opinion relating to the above described initial and asked several questions as to possible effects of the initiative. Provided below is a legal analysis of the initiative and answers to your questions.' On May 15, 2008, Lieutenant Governor Parnell determined the petition for the initiative entitled "An initiative Creating An Alaska Anti Corruption Act" was properly filed. The initiative should appear an the August 24, 2010 statewide primary election ballot- While the ballot application was certified by the lieutenant governor as compliant with state constitutional and statutory requirements pertaining to initiatives,' this certification Your fourth question, "[Are there, beyond the specific questions already asked, any] practical ramifications [of the initiative]," is addressed by the portion of this memorandum entitled "constitutional issues." r 11' there is a statewide special election before the 2010 primary election, the initiative will be placed an the election ballot for that election (AS 15.45.420). Under AS 15,45.070, the lieutenant governor is required to review an application for a proposed ballot initiative and either "certify it or notify the initiative committee of the grounds for denial." An initiative will be denied by the lieutenant governor if (1) the proposed bill to be initiated is not in the required form; (2) the application is not substantially in the required form, or (3) there is an insufficient number of qualified sponsors. See the attorney general's review of the 07ANCO initiative applieution (No. 663 -08 -0057, December 18, 2007). The form of a proposed initiative is prescribed by AS 15,45.040. This section re quires that (1) the bill be confined to one subject; (2) the subject of the bill shall be expressed in APR 0 20 0 10:01 AM Rep, Chenau11 465 2833 1'. i/ t o Representative Mike Chenuuill February 15,2010 Page 2 should not be interpreted as an a!'finnation of the constitutionality of t initiative's provisions,' Initiative 07ANCO establishes a variety of new rules relating to (1) who may contract with the state or its political subdivisions and (2) who may make contributions to, or independent expenditures on behalf of, certain candidates for public office. The initiative also provides for civil and criminal penalties for violations of its provisions and directs that a state website be established where summaries of all contracts awarded by the state, the state's political subdivisions, and school districts (government contracts) must be listed. INITIATIVE SUMMARY Section One. Public resources from any source not to be used or received to further any political agenda Subsection (l)(A) prohibits public bodies, public officers, persons in the employ of the state, the state's political subdivisions, school districts, or candidates for public office from directly or indirectly using, or allowing to be used, tax revenues or other public resources for campaign, lobbying, or partisan purposes. This prohibition extends to the payment of dues or membership fees of any kind to any entity or person that itself engages in lobbying, campaigns, or partisan activity. It also prohibits candidates, political committees, and political parties from accepting contributions from any saute, state agency, political subdivision of the state, foreign government, federal agency, or the federal government. Violation of this subsection is aclass A misdemeanor, While prohibiting the use of public resources for campaign, lobbying, or partisan purposes may not seem a novel proposal,'' the manner in which subsection (1)(D) \(D' defines the title; (3) the enacting clause of the bill shall be "Be it enacted by the People of the State of Alaska;" (4) the bill may not include subjects restricted by AS 15.45,010, AS 15.45.010 provides that run initiative may not be proposed to dedicate revenue, to malce or repeal appropriations, to create courts, to define the jurisdiction of courts or prescribe their rules, or to enact local or special legislation." This section is a statutory restatement of the Alaska Constitution's art. XI, sec. 7. Unless an initiative is clearly unconstitutional, an initiative's constitutional issues other than the inclusion of prohibited subjects under art. Xl, see. 7 of the state constitution will only be considered after an initiative is enacted. See Alaskans for Efficient Government Inc. v. State, 153 P.3d 296, 298 (Alaska 2007). Article IX, section 6 of the Alaska Constitution prohibits the use of public funds for non public purposes. APR -01 -2010 1002 AM Rep. Chenault 465 2833 Representative Mike Chenault February 15, 2010 Page 3 "campaign and "lobbying (and remains silent as to "partisan purposes results in a departure from what current law provides. Subsection (I)(A) could be interpreted to prohibit the following currently permitted activities; (1) deduction of union dues by the state from a public employee's income (currently allowed under AS 23.40.220); (2) use of public funds to support or oppose legislation or a ballot measure;" (3) lobbying of the federal govcmment by the state (i.e. appropriating funds to Arctic Power to lobby in Washington D,C. on behalf of oil exploration and development in the Arctic 'National Wildlife Refuge); (4) funding of state election campaigns by the state (as was proposed by the "clean elections" initiative that appeared on the August 2005 primary election ballot); and (5) some communications between employees of a political subdivision or an executive branch department and persons in the legislative branches of government concerning legislative action desired by the political subdivision or department. Subsection (1)(A) could also be interpreted to eliminate the limited exceptions to existing prohibitions against the use of government resources allowed under AS 24,60.030(a) or AS 3952.12 0(b) (i.c. telephone or facsimile use that does not carry a special charge by a legislator or legislative employee or the use of the governor's residence for meetings to discuss political strategy). Subsection (I )(B) provides that any person who knowingly spends or receives funds in violation of section 1 of the initiative must "pay lull restitution for the greater of the public cost or for the market value of any misappropriated resources." A second "Campaign" is defined by subsection (1)(D) to include "(i) communisations or expenditures related to the pursuit of a public office, either electoral or appointive; (ii) all lobbying activity; or (iii) efforts paid in whole or in part by public revenues or resources to coordinate or induce members of the general public or any segment thereof to directly influence legislative activity by communicating with members of a legislative body, supporting or opposing legislation, or supporting or opposing a petition drive or ballot question." "Lobbying' is defined by subsection (1)(D) to mean "attempts to directly influence legislative activity by communication with any member or employee of a legislative body, or with any government official or employee who may participate in the formulation of legislation," The legislature may appropriate money for any public purpose under art, lX, sec. 6 of the state constitution. Under AS 15.13.145, certain political subdivisions of the state are permitted to expend funds in support or opposition to a ballot initiative if funds have been specifically appropriated for that purpose by a state law or a municipal ordinance. See the discussion of subsection (1)(C) below. P. 4/15 APR -01 -2010 10:02 AM Rep, Chenault 465 2833 P, 5/15 Representative Mike Chenault February I5, 2010 Page 4 violation of section 1 by a public officer or public employee renders the public officer or public employee ineligible for public office or employment with the state or any of its political subdivisions for ten years. Subsection (1)(C) of the initiative provides thtat the initiative's section 1 does not apply to certain persons and certain communications, comments, and appearances. It provides that subsection (1)(A) does not apply to communications between a legislator and legislative staff, communication between a legislator and the legislator's constituents, appearances by it public officer or employee before a public body for the purpose of providing information, communications between an elected or appointed public official with a legislator or legislative staff member, a public employee acting in a personal capacity, or "authorized employee(s) of the office of the Governor, the Supreme Court, or the Department of Revenue" responsible for assessing "the impact of proposals which affect the administration of government," While subsection (1)(A) does not directly prohibit any communication, comment, or appearance, subsection (1)(D) defines "lobbying" so broadly that the initiative could be interpreted to prohibit the employees of state departments or political subdivisions from communicating with legislative personnel about the needs of their departments or political subdivisions. While the initiative's section 1 mukes exceptions for "appearances by a public officer or employee" whose appearance has been requested, and communications between an elected or appointed public officer and a legislator or legislative staff member are permitted, no exception is made for the employees of a state department or political subdivision ro communicate (unless requested to appear) with legislators or legislative staff. Subsection (1)(D) provides definitions for section 1, Subsection (1)(E) provides that section 1 applies to the state, municipalities, school districts, and the public officers, agents, and employees of the state, municipalities, and school districts. Section Two. Restrictions to reduce eorruption relating to certain public contracts Subsection (2)(A) places restrictions on who may contract with the state, a political subdivision of the state, or a school district, It prohibits persons who employ or "retain() the services of a person who is or was a legislator or legislative staff member, who is less than two years removed from that position (unless the legislator, legislative staff member, or former legislator or legislative stuff member is employed or retained in u trade, occupation, or profession in which the legislator, legislative staff member, or The initiative's language is "state, and independent and municipal school districts." 1 interpret this to be a comprehensive reference to all school districts. In Alaslcn there are borough school districts, city school districts, regional educational attendance areas, and the state boarding school (which operates as a school district), APR -01 -2010 10:03 All Rep. Chenault 465 2833 Representative Mike Chenault February 15,2010 Page 5 former legislator or legislative staff member was engaged, or had obtained certification" for, at least one year prior to becoming a legislator or legislative stall member), from obtaining government contracts.' A lcnowing violation of this subsection is a class A misdemeanor, In addition to the misdemeanor charge, a person who knowingly violates the prohibition set out in this subsection forfeits the person's rights to payment or reimbursement under the contract and must make restitution of any payments received. Subsection (2)(B) restricts the range of persons from whom a public officer or candidate for public office may solicit or accept contributions, It prohibits a public office holder with "ultimate responsibility for the award of a government contract, a candidate for that public office position, or a person acting "on behalf' of either that public office holder who awarded the contract or a candidate for that public office holder's position from "solicit[ing], accept[ing], or direct[ing]" a contribution from a person holding a government contract or an immediate family member of that person. A knowing violation of the prohibition set out in this subsection is a class A misdemeanor. In addition to the misdemeunor charge, a person who knowingly violates this subsection must make hill restitution to the person who made the contribution and pay a matching amount to the state us a penalty. A second violation of subsection (2)(B) renders a person ineligible for public office or employment with the state or any of its political subdivisions for two years. Subsection (2)(C) prohibits persons holding no -bid government contracts from making or soliciting contributions to elect or defeat any candidate for public office in the state or from making independent expenditures" on such a candidate's behalf. This prohibition remains in effect for two years following the termination of the contract. Violation of this provision by the holder of a no -bid govornment contract results in forfeiture of the right to payment under the contract and payment of an amount "not less than twice the The initiative does not supply a definition of "certification," Certification could be interpreted to mean a professional's "accreditation" or degree, or it could be interpreted to require some type of state certification program. 'Z A "government contract" is defined by subseetion. (2)(E) as "any contract awarded by an agency or department of the state or any public body receiving state subsidy or authorized to levy taxes, for the purchase of goods or services for amounts greater than $500... Such contracts include collective bargaining agreements with labor organizations. "Holder of the public office with ultimate responsibility for the award of a contract" is defined by (2)(E) to mean any elected official whu may award the contract or appoint an official responsible for awarding the contract, or any elected official of a public body where the contract is awarded by that public body. Independent expenditures for or against candidates are currently governed by AS 15.13.135. P. 6/15 APR -01 -2010 10:03 AM Rev, Chenault 165 2833 Representative Mike Chenault February 15, 2010 Page 6 contribution" to the state as a penally. if the holder of the no -bid contract is an "entity" that has a treasurer that knows of the contribution, then the treasurer may also beheld liable for the violation. In addition to these penalties, a person who violates this section a second time is ineligible to again contract with the state, hold public office, or be employed by the state or any of its political subdivisions for three years. The governor may suspend a "disbarment" under this section during a declared state of emergency. Subsection (2)(D) provides that subsection (D) may be enforced in superior court by any party, and that party is immune from legal actions for bringing such an action. Subsection (2)(E) provides definitions for section 2. Subsection (2)(F) provides that section 2 applies to the state, municipalities, school districts, and the public officers, agents, and employees of the state, municipalities, and school districts. Subsection (2)(G) provides that section 2 does not affect the authority of the state to suspend, debar, or otherwise sanction a contractor who is subject to AS 36 (Public Contracts). Subsection (2)(H) requires that the state promptly publish a summary of each "government contract" (presumably including those contracts awarded by the state's political subdivisions and school districts) on a website accessible from the states official website. Presumably, too, this is an ongoing obligation for each contract that is entered into on or after the initiative's effective date, and not u one -time only requirement. The subsection also requires persons who have been awarded a government contract to file a "Government Contract Summary" in digital form that would summarize a large quantity of information about the contract.'` Section Three, Non applicability of less protective laws The initiative does riot directly repeal or amend any statute or regulation, Section 3 provides that existing state statutes and regulations that "conflict with [the initiative] and are less restrictive or less protective of the public interest" are superseded by the initiatives provi si ons The initiative does not examine the relationship between the states website and the "Government Contract Summary" that government contractors are required to tile, The information that the contractor is required to file is information that the state (if the state was the government entity that awarded the contract), as a party to the contract, would already have (i.e. "the nature of the contract "the estimated duration and end date of the contract," etc.). This information appears to be meant for publication on the required state website, but the initiative is not clear on the point P. 7/15 APR -01 -2010 10:04 AM Rep. Chenauit Representative Mike Chenault February 15, 2010 Page 7 Section Four. Severability Section 4 provides that if any provision of the initiative, or any provision of the initiative's application to a person or circumstance (if enacted) is found to be unconstitutional, that only the impermissible sections or applications will be severed. CONSTITUTIONAL ISSUES The initiative implicates constitutional issues relating to legislative power, qualifications for state legislative and executive elective office, freedom of speech and association, overbreadth, and equal protection. These issues are discussed below. Prohibiting the legislature from expending public funds for "campaign, lobbying, or partisan purposes" The initiative's section (1)(A) prohibits the expenditure of public funds for campaign, lobbying, or partisan purposes. Article IX, sec. 6 of the state constitution allows the legislature to appropriate funds for any public purpose. The state Supreme Court has held that "where the legislature has round that a public purpose will be served by the expenditure or transfer of public hinds or the use of the public credit, this court will not set aside the finding of the legislature unless it clearly appears that such finding is arbitrary and without any reasonable basis in fact." DeAnnond v. Alaska State Development Corp., 376 P.2d 717, 721 (Alaska 1962), citing re Opinion of the Justices, 177 A.2d 205 (Del. 1962). Consequently, if the legislature were to choose to appropriate funds in relation to a ballot measure or to fund a program for the financing of public elections, a court might not enforce this provision of the initiative. Barring persons from public office Subsections (t)(13), (2)(B), and (2)(C) of the initiative that "render [a) person ineligible to hold public office [...1 with the state or any of its political subdivisions for [i0, 2, and 3J years" might be found by a court to impose an unconstitutional qualification for the offices of governor, lieutenant governor, state senator, and state representative under art. 11, sec. 2 and art III, sec. 2 of the Alaska Constitution." While as a general rule Art 11, see. 2, provides for the qualifications of state legislators: MEMBERS' QUALIFICATIONS. A member of the legislature shall be a qualified voter who has been a resident of Alaska for at least three years and of the district from which elected for at least one year, immediately preceding his filing for office. A senator shall be at least twenty -five years of age and a representative at least twenty-one years of age. Art. 1I, sea. 5 spe ditional disqualifications: 465 2833 P, 8/15 APR -2010 10:05 AM Rep Chenault 465 2833 Representative Mike Chenault February 15, 2010 Page 5 states enjoy broad authority to prescribe the qualifications of their public office holders (see Sugarman v. Dowell, 413 U.S. 634 (1973)), the qualifications for the right to hold certain state elective offices are spelled out in several places in the state constitution and a court might rule that the people (through the initiative process) do not have the authority to set or establish additional qualifications on the right to hold these elective offices,' Under the state constitution art. II, sec. 12, each legislative house "is the judge of the elections and qualification of its members." See State v, Marshall, 633 P.2d 227 (Alaska 1981) (court enforced a statutory provision on a member of a municipal assembly, but noted that statute might not apply to a legislator because of the state constitution art. 11, sec. 12). Because of these constitutional issues, this provision of the initiative might be interpreted by a court to apply only to other elective public offices. DISQUALIFICATIONS. No legislator may hold any other office or position of profit under the United States or the State. During the term for which elected and for one year thereafter, no legislator may be nominated, elected, or appointed to any other office or position of profit which has been created, or the salary or emoluments of which have been increased, while he was a member. This section shall not prevent any person from seeking or holding the office of governor, secretary of state, or member of Congress. This section shall not apply to employment by or election to a constitutional convention. Art, III, secs, 2 and 5, prescribe the qualifications for the office of governor: GOVERNOR'S QUALIFICATIONS. The governor shall be at least thirty years of age and a qualified voter of the State. 1-♦e shall have been a resident of Alaslui at least seven years immediately preceding his filing for office, and he shall have been a citizen of the United States for at least seven years. LIMIT ON TENURE. No person who has been elected governor for two full successive terms shall be again eligible to hold that office until one full term has intervened. Art. III, sec. 7, prescribes the same qualifications are applicable to the office of lieutenant governor; LIEUTENANT GOVERNOR DUTIES. There shall be a lieutenant governor. He shall have the same qualifications as the governor and serve for the same term. He shall perform such duties as may be prescribed by law and as may be delegated to him by the governor. Opinion of the Attorney General, February 9, 1960. P. 9/15 APR -01 -2010 10:05 AM Rep, Chenault 465 2833 Representative Mike Chenault February 15, 2010 Page 9 It', because of the qualifications clause issue, the initiative is interpreted to only prohibit people from employment with the state or its political subdivisions, elective public offices other than that of governor, lieutenant governor, state senator, or state representative, there could be a secondary constitutional problem in regard to the application of the initiative's provisions to these other elective public offices. Courts have found that individuals have a "federal constitutional right," grounded in the equal protection provision of the Fourteenth Amendment, "to be considered for public service without the burden of invidiously discriminatory disqualification." Turner v. Roadie, 396 U.S, 346, 362 (1970). The cases suggest that a state's exercise of its powers in prescribing the qualifications of its officers may be subject to an examination under the equal protection clause. Generally, the principal factors to be taken into consideration in determining whether a provision violates the equal protection clause are "the facts and circumstances behind the law, the interests which the state claims to be protecting, and the interest of those who are disadvantaged by the classification," Williams v. Rhodes, 393 U.S. 23 (1968). The right of an individual to hold political office has generally not been treated as "fundamental," Bullocic v. Carter, 405 U,S, 134 (1972), nor apparently is the opportunity of an individual to stand as a candidate for that office, Clough v. Guzzi, 416 F.Supp. 1057, 1066 (D.Mass. 1976), So, typically, in challenges to constitutional prohibitions against dual office holding or barring other state employment during a person's term of legislative service, absent evidence of invidious discrimination, examination has proceeded using a "rational basis" analysis. See Wilson v. Moore, 346 P.Supp. 635 (N.D.W.Vn. 1972) (upholding bur against eligibility in legislature of one holding other lucrative office or employment under the state), Under a rational basis test, the state needs to demonstrate that its legislative classification rationally relates to a legitimate governmental objective. See Comer v. City of Mobile, 337 Sold 742, at 750 (Ala. 1976) (prohibition in a reenactment of legislation establishing an Ethics Commission against any member appointed under the original Act from again serving as a member of the commission violative of equal protection where the court found "no reasonable relationship between this membership prohibition and the purpose of this legislation.... Assuming application of a rational basis analysis of the initiative's provisions that would operate in practice to bar individuals from public employment and some public offices, the court will consider both the governmental objective sought to be satisfied and the relationship between that objective and the means sought to achieve the objective, To be valid under the equal protection clause, the application of' the initiative to some public employees, public office holders, would -be candidates for these public offices, and prospective employees would have to be reasonable, not arbitrary, and would have to bear a fair and substantial relation to a legitimate governmental objective in preventing corruption and the appearance of corruption. if the initiative's provisions barring certain persons from public office arc not enforced for the offices of governor, lieutenant governor, state senator, and state representative because of the state constitution's art. II, sec. 12 and qualifications clauses, the initiative (in its disparate application) might not be interpreted by a court as bearing a fair and substantial relation to the goal of preventing corruption or its appearance. Allowing a person who has violated the initiative's P. 10/15 APR -01 -2010 10:06 AM Rep. Chenaull 965 2833 Representative Mike Chennult February 15, 2010 Page 10 provisions to run for governor but not a municipal assembly seat may be interpreted as arbitrary, and the initiative might consequently bear a strong lilcelihood of being held by a court as not having a reasonable relationship to deterring corruption or its appearance, Government contractors' ability to make contributions to or expenditures on behalf of a candidate Article I, sec, 5 of the state constitution and the First Amendment ol`the Constitution of the United States protect the freedom of speech and freedom of association. Contributions to political campaigns and independent expenditures made on the behalf of a candidate are protected speech under the First Amendment. See Randall v. Sorrell, 546 U,S. 230 (2006), and Buckley v. Vales, 424 U.S. 1 (1976). Any restriction on the ability of persons who contract with the state, its political subdivisions, or school districts to make contributions or expenditures in support of or in opposition to a candidate for public office is likely to face a First Amendment challenge," The United States Supreme Court has recognized "the prevention of corruption and the appearance of corruption" as a sufficiently important interest to justify restrictions on campaign contributions, see Buckley v. Valeo, 424 U.S. 1, 26 (1976), and the Alaska Supreme Court has held that a bar on out-of-district lobbyist contributions (AS 15.13,074(g)) is narrowly tailored to further this compelling interest, and the restraint does not foreclose lobbyists from engaging in political speech, see State v. Alaska Civil Liberties Union, 978 P2d 597 (Alaslca 1999), cert. denied, 528 U.S. 1153 (2000). However, it is my opinion that restricting all political contributions from all "govemment" contractors and their immediate family members is not narrowly tailored and is further removed from the state's interest in preventing corruption and the appearance of corruption. The relevant legal analysis is whether the prohibitions in the initiative's sections (2)(B) and (2)(C) that prevent a government contractor or an immediate family member of a goyernmcnt contractor From making n contribution to, or an expenditure on behalf of, a candidate for public office are consistent with the state's compelling interest in preventing corruption and the appearance of corruption and do not "burden substantially more speech [or association) than is necessary to further the government's legitimate interests." State v. Alaska Civil Liberties Union, 978 P.2d 597, 619 (Alaska 1999), quoting California Profile Council v. Scully, 989 F. Stipp. 1282, 1296 (E. D. Cal. 1998), quoting Ward v. Rocic Against Racism, 491 US, 781, 799 (1989), While some restrictions on contributions from these contractors and their immediate family members might be permissible, the initiative is not narrowly tailored, but disallows all contributions and independent expenditures by a group of persons captured by an expansive and perhaps a "Holder of a government contract" is defined so broadly that any "administrator" or shareholder owning more than five percent of an entity that contracts with the government is such a contractor under the initiative's section (2). P, 11/15 APR -01 -2010 10:06 AM Rep Chenault 465 2633 Representative Mike Chenault February 15, 2010 Page 11 constitutionally "overbroad" definition of "holder of a government contract, 1 believe a court would interpret this absolute prohibition not as a "distinction in degree" but an impermissible "distinction in kind." Buckley, 424 U.S. at 30. Right of contractors to employ a current or former legislator or legislative staff member The prohibition in section (2)(A) against a person that employs a current or former legislator or legislative staff member from contracting with the state, its political subdivisions, or school districts may be held by a court as a violation of the rights of a person who desires to contract with the state, a legislator, or a legislative staff member. The individual rights afforded by the Alaska Constitution, an. 1, sec. 1, include the right to make certain contracts for personal employment. See State v, Enserch Alaska Construction, Inc., 787 P.2d 624 (Alaska 1989) (the right to engage in an economic endeavor within a particular industry is an "important" right for state equal protection purposes) and Malabed v. N. Slone Borough, 70 P.3d 416 (Alaska 2003) (close scrutiny of enactments impairing the important right to engage in economic endeavor requires that the states interest underlying the enactment be not only legitimate, but important, and that the nexus between the enactment and the important interest it serves be close). In justifying such an infringement on the personal liberty of government contractors, legislators, legislative staff members, former legislators and legislative staff members, a person defending the initiative's section (2)(A) would have to demonstrate a compelling interest in the purposes advanced by the restriction and an absence of less restrictive alternatives in realizing these ends. While the United States Supreme Court has acknowledged that governments have a legitimate interest in regulating the activities of people who have direct access to elected representatives, see McIntyre v. Ohio Elections Commission, 514 U.S. 334, 356 n. 20 (1995) "the activities of lobbyists who have direct access to elected representatives, if undisclosed, may well present the appearance of corruption "statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that u particular mode of expression has to give way to other compelling needs of society." Broadriek v. Oklahoma, 413 U.S. 601, 611 612 (1973) (citations omitted). It is my opinion that a court would most likely rule that a party defending this provision would not meet its burden of demonstrating that no less restrictive alternatives exist to eliminate impropriety, undue influence, and conflicts of interest, and that this restriction might also be invalidated. i Under the overbreadth doctrine, if a statute is so broadly written that it deters free expression, then it may be struck down on its face because of its chilling effect even if it also prohibits acts that may legitimately be forbidden. P.12/15 APR-01 -2010 10:07 All Rep, Chenault 465 2833 Representative Mike Chenault February 15, 2010 Page 12 Questions relating to how the initiative, if enacted by the electorate, might be applied Would a mayor or municipal assembly person be prevented under the initiative from expressing a position of the municipality to a state legislator in an attempt to influence legislation? No. Section (1)(A) of the initiative prohibits public officers from directly or indirectly using any tax revenue or other public resource for campaign, lobbying, or partisan purposes.' Section (1)(C)(3) and (4) provide that this prohibition does not extend to (1) "[a]ppearances by a public officer or employee pursuant to a specific request to appear before a public body to provide information' or (2) "[c]ommunications between an elected or appointed public officer and a legislator or a legislative staff member," Due to these exceptions, the initiative, if enacted, is unlikely to be interpreted to prohibit a mayor or municipal assembly member from expressing a position of the municipality to a legislator in an attempt to influence prospective legislation. Would a private citizen who receives a Permanent Fund Dividend or other benefit from the state he prevented under the initiative jrom expressing the citizen's views to a legislator in an attempt to influence legislation? No, The initiative does not prohibit a resident of the state who receives a Permanent Fund Dividend (PFD) or other state benefit from expressing the individual's views to a legislator in an attempt to influence prospective legislation. The initiative's phrase "use of tax revenues or any other public resource" is unlikely to be interpreted to include a person's PFD or received state benefit." Additionally, the initiative's section (I)(A), p]ublic resources from any source not to be used or received to further any political agenda," applies only to a "public body, public official, person in th em ploy of the state, any of its political subdivisions, any school district, or [a] candidate for public office," and any public official or public employee who acts in an uncompensated personal capacity is excepted from the application of this section under the initiative's section (1)(C)(5). The definitions of "[d]irect, permit, receive, require, or facilitate the use of tax revenues or any other public resource for campaign, lobbying, or partisan purpose," "[c]ampaign," "[I]obbying," and p]ublic officer or person in the employ or are found at the initiative's section (1)(D). 21 While I'm unsure of the sense in which you are employing "state benefit," if it be Medicare, social security, or unemployment insurance, these, once provided, are no longer state resources. Sec the definition of "[cl)irect, permit, receive, require, or facilitate the use of utx revenues or any other public resource for campaign, lobbying, or partisan purpose" at initiative section (1)(D)(1). P, 13/15 APR -01 -2010 10:07 AM Rep, Chenault (Emphasis added.) 465 2833 Representative Mike Chenault February 15, 2010 Page 13 Would the initiative restrict the ability of a legislator to meet with the legislator's constituents and to subsequently engage in legislative action on the constituents' behalf? No. Leaving aside the matter of who the legislator's constituents might be and whether the constituents themselves might be prohibited under the initiative from attempting to influence proposed legislation or ballot initiatives, a legislator who meets or communicates with constituents and then subsequently engages in legislative action as a direct or indirect result of the legislator's contact with the constituents is unlikely to be found in violation of the initiative's section (1)(A) because the legislator is not using tax revenues or state resources for "campaign, lobbying, or partisan purposes" but is, instead, the object of the constituents' lobbying or partisan efforts, Proactive legislative action in response to the initiative Tf it is your opinion that the initiative is likely to be approved by the electorate and you are concerned about the possible effects of the initiative's provisions (as currently drafted), art. XI, sec. 4, of the Alaska State Constitution allows the legislature to enact a law (before the August 2010 statewide primary election or special election at which the initiative is placed on the election ballot) that, if "substantially the same measure" as the proposed initiative, will render the initiative void." Under AS 15,45 210, the lieutenant governor, with the concurrence of the attorney general, is responsible for determining whether an Act of the legislature is substantially the same as a proposed initiative." The test of how similar a measure enacted by the legislature and an initiative must be for the legislative measure to operate to invalidate the Article Xl, sec. 4, Constitution of the State of Aiasi<a states INITIATIVE ELECTION. An initiative petition may be filed at any time. The lieutenant governor shall prepare a ballot title and proposition summarizing the proposed law, and shall place them on the ballot for the first statewide election held more than one hundred twenty days after adjournment of the legislative session following the filing. 1f, before the election, substantially the same measure has been enacted, the petition is void. AS 15.45.210 slates: Determination of void petition. if the lieutenant governor, with the formal concurrence of the attorney general; determines that an act of the legislature that is substantially the same as the proposed law was enacted after the petition bed been filed, and before the date of the election, the petition is void and the lieutenant governor shall so notify the committee. P. 14/15 APR -01 -2010 10:08 AM Rep, Chenault 465 2833 Representative Mike Chenault February 15, 2010 Page 14 initiative was set out in Warren v, Boucher, 543 P.2d 731 (Alaska 1975). The Warren court noted: [T]he legislative act need not conform to the initiative in all respects, and the [constitution's] framers intended that the legislature should have some discretion in deciding how far the legislative act should differ from the provisions of the initiative. The question, of course, is how great is the permitted variance before the legislative act becomes no longer substantially the same. Upon reflection we have concluded that the legislature's discretion in this matter is reasonably broad. The court fashioned the following as a general test: TLAB :plm 10- 072.plm [Of in the main the legislative act achieves the same general purpose as the initiative, if the legislative act accomplishes that purpose by means or systems which are fairly comparable, then substantial similarity exists. It is not necessary that the two measures correspond in minor particulars, or even as to all major features, if the subject matter is necessarily complex or requires comprehensive treatment. The broader the reach of the subject matter, the more latitude must be allowed the legislature to vary from the particular features of the initiative. id. at 736. M reading of the Warren test leads me to the opinion that a legislative bill that was drafted to sidestep the possible constitutional and practical shortcomings of this initiative is likely to be interpreted by a court as "substantially the same" and consistent with the legislature's authority to substitute its judgment and to take corrective action. The subject matter of the initiative, political contributions and government contracts, is fairly complex, and the scope of the initiative's provisions is broad. Correspondingly, the legislature could be held to have the requisite authority to exercise significant discretion in departing from the particular features of initiative 07ANCO. 11' you would like a bill drafted, if you have further questions, or if I may be of further assistance, please do not hesitate to contact me. P, 15/15