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
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.
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.
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).
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.
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...."
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.
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."
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."
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 AS 15.13.145'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,
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."
"Agency interpretations are not binding on our interpretation of a statute,"
The dictionary definition of "money" focuses on cash or legal tender.
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,"
Eberhart cites several cases for the proposition that preventing corruption is the only legitimate governmental interest for restricting campaign finances.
D. APOC Did Not Violate Eberhart's First Amendment Rights By Applying The Statute To Actions That Fall Within A City Council Member's Usual Duties.
Eberhart asserts that APOC's decision to fine him for sending the email implicates the First Amendment because it "penalizes `effective advocacy,'" which the United States Supreme Court held is unconstitutional in Buckley v. Valeo.
E. Substantial Compliance Standard Does Not Apply To AS 15.13.145.
Eberhart argues that the substantial compliance standard should apply to AS 15.13.145 and that he was in substantial compliance with the statutory requirements because even APOC agreed that his violation was trivial. Eberhart contends that our analysis in Grimm v. Wagoner supports his argument — we disagree. Grimm involved a candidate's compliance with financial disclosure rules, specifically AS 39.50.030 (disclosure requirements), not a candidate's improper use of government resources.
Eberhart's second argument is that APOC failed to follow its own standing order on substantial compliance for filings. Eberhart points to a 2010 APOC order establishing that a filing under AS 15.13 or several other statutes is "substantially compliant" with the statute "if it involves no significant harm to the public."
Eberhart assumes that this order applies to violations of the portions of AS 15.13 that do not relate to filings or disclosures, including the bar on the use of government resources to influence the outcome of an election in AS 15.13.145. But just as there is nothing that supports broadening Grimm's substantial compliance holding beyond AS 39.50.060(b), there is nothing in APOC's standing order that would broaden its applicability beyond the specific reporting errors it describes.
Eberhart quotes from the APOC memorandum which accompanied the 2010 order, noting its statement that "APOC will not begin an investigation, initiate a complaint, or assess a fine or penalty if a filer has substantially complied with the filing requirements." But that sentence explicitly refers to filings, and begins: "Under these regulations, APOC will not begin ..." (emphasis added). It follows a list of examples of APOC regulations that evidently explicitly referred to substantial compliance. Again,
F. Eberhart's Arguments Related To APOC's Failure To Follow Established Procedural Rules Are Without Merit.
Eberhart argues that APOC violated its own procedural rules and therefore should have dismissed the complaint. He then asserts that because APOC did not dismiss it, the superior court should have remanded the case with instructions to dismiss the complaint or follow the procedural rules as Eberhart understands them. He first argues that APOC staff were required to dismiss the complaint against him because the staff did not comply with the applicable regulation. He then argues that APOC actually did dismiss "the substance of [the] complaint" at the beginning of the hearing and that APOC therefore "consider[ed] allegations initiated by [itself]" in violation of APOC procedure.
1. Whether APOC should have rejected the complaint because it was noncompliant is not judicially reviewable.
APOC procedural regulations describe the required contents of a complaint that alleges a violation of AS 15.13.
Eberhart argues that the complaint did not provide either the statute or regulation allegedly violated or the basis of the complainant's knowledge of a violation, so the staff was wrong to investigate it. APOC argues that its staff's "decision to investigate [a] complaint is not judicially reviewable." The relevant regulation, 2 AAC 50.870(d), provides an appeal process for a staff decision not to investigate and AS 15.13.380(g) allows either a complainant or a respondent to appeal an APOC order finding a violation to the superior court. Alaska Statute 22.10.020(d) gives the superior court jurisdiction "in all matters appealed to it from a[n]... administrative agency when appeal is provided by law." But no statute or regulation provides for the appeal of a decision to investigate a complaint.
2. APOC's investigation into Eberhart's use of his city email was proper.
Eberhart also argues that APOC "dismissed the substance of [the] complaint" and that the hearing therefore addressed only "allegations initiated by APOC." He argues that APOC regulations only allow APOC staff to "initiate an investigation" if staff "obtains information that, if true, would constitute a substantial violation of AS 15.13" or other statutes.
The original complaint contained three broad allegations: (1) Eberhart used the corporate resources of his employer, specifically his work telephone, to campaign; (2) Eberhart used his city email address, a city resource, to campaign; and (3) Eberhart collected a salary from his employer for time spent campaigning. The first allegation was based on a telephone call between the complainant and Eberhart on April 3, 2013. After Eberhart moved to dismiss the complaint in its entirety, APOC granted the motion to dismiss with regard to the telephone conversation but denied the motion to dismiss with regard to the rest of the allegations. The allegation that Eberhart had used his city email address as his campaign contact was still before APOC. Eberhart's claim that APOC had "dismissed the substance of [the] complaint" is therefore incorrect.
Eberhart's related argument that the allegations addressed at the hearing were "initiated by APOC" hinges on his assertion that the original complaint to APOC did not allege that Eberhart had used his city email address to obtain copies of public records from the city clerk. This argument ignores the inherent nature of an investigation, which begins with known facts and seeks to develop and discover additional facts and evidence. It would be illogical for APOC to be empowered to investigate allegations but then only able to penalize an offending party for the specific misdeeds known to the complainant at the time of filing the complaint, regardless of how egregious more hidden conduct might have been. Eberhart has provided no argument or relevant authority to support such an unusual restriction on APOC's statutorily-granted power to investigate.
G. APOC Did Not Violate The Deliberative Process Privilege.
"The deliberative process privilege is an exception to the public records act intended to `protect  the mental processes of governmental decision-makers from interference.'"
Eberhart argued at the APOC hearing that "inquiring into the purpose of the email[s] invades [the] deliberative process" privilege and objected to being asked questions about whether he had used the materials received in his campaign or for official purposes. APOC's order did not address Eberhart's privilege claim. The superior court concluded that the issue was "moot, as [APOC] reached their conclusion to support the violation from the evidence presented by APOC staff."
Eberhart compares the emails to documents that we held were protected by this privilege in Gwich'in Steering Committee v. State, Office of the Governor.
We AFFIRM the superior court's decision affirming APOC's final order and civil penalty.