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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Eberhart v. Alaska Public Offices Commission (8/24/2018) sp-7276

Eberhart v. Alaska Public Offices Commission (8/24/2018) sp-7276

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  


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                      THE SUPREME COURT OF THE STATE OF ALASKA                                       

JOHN  EBERHART,                                                      )  

                                                                     )     Supreme  Court  No.  S-16187  

                                Appellant,                           )  


                                                                     )     Superior Court No. 4FA-14-02074 CI  

           v.                                                        )  


                                                                     )     O P I N I O N  


ALASKA PUBLIC OFFICES                                                )  



                                                                     )     No. 7276 - August 24, 2018  

                                Appellee.                            )  



                     Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  


                     Fourth Judicial District, Fairbanks, Michael P. McConahy,  



                     Appearances: Michael J. Walleri, Gazewood & Weiner, PC,  


                     Fairbanks,  for  Appellant.                   Laura  Fox,  Assistant  Attorney  

                     General, Anchorage, and James E. Cantor, Acting Attorney  


                     General, Juneau, for Appellee.  


                     Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                     and Carney, Justices.  


                     CARNEY, Justice.  



                     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  

----------------------- Page 2-----------------------

 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                                                                                                                                                                                                                                                                                                                                                                                                    


                                                                             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                                                                                                                                                                                                                                                                                                                                                                          

                                                                                                                                                                                                                                                -2-                                                                                                                                                                                                                                7276

----------------------- Page 3-----------------------


 from the Fairbanks city code                                                                                                                  prohibiting elected officials from using city resources on                                                                                                                                                                                                            

behalf of a candidate.                                                                                    

                                                                After receiving the complaint APOC staff opened an investigation.  Staff                                                                                                             

requested copies of all emails sent from Eberhart's city email account from April 1 to                                                                                                                                                                                                                                                                                                                           

October 1, 2013.                                                                   In late February 2014 APOC staff asked Eberhart to explain the email                                                                                                                                                                                                                                                

exchange in which he had asked the city clerk to provide the ordinances and resolutions                                                                                                                                                                                                                                                                                     

he and his opponent had sponsored.                                                                                                                                             

                                                                 Eberhart's attorney responded with a letter asking APOC to dismiss the                                                                                                                                                                                                                                                                          

complaint.   The letter asserted that the telephone call and whether Eberhart was paid for                                                                                                                                                                                                                                                                                                                         

campaign time should not be investigated and objected that the complaint did not allege                                                                                                                                                                                                                                                                                                              

 specific facts or identify a specific statute or regulation as required.  The letter did not   

respond to the email address allegation at all.                                                                                                                                                                               In response APOC staff argued that the                                                                                                                                              

resident's complaint should not be dismissed and defended it as adequate to sustain an                                                                                                                                                                                                                                                                                                                               

investigation. Staff argued that whether Eberhart had "used city resources for campaign                                                                                                                                                                                                                                                                                           

purposes" was a factual question best left to APOC.                                                                                                                                                                                                          

                                                                APOC staff issued its investigative report on March 10 without receiving                                                                                                                                                                                                                                            

a response from Eberhart regarding the email exchange.                                                                                                                                                                                                                                      The report concluded that                                                                                        

Eberhart had violated a state statute by using the city email system to help his campaign.                                                                                                                                                                                                                                                                                                                                          

The   report   concluded   that  most  of   Eberhart's   emails   had   "nothing   to   do   with  

campaigning"                                                                    or                   were                               permissible                                                       "nonpartisan                                                             educational                                                        election-related  

communications."   But it identified the email exchange with the city clerk as a possible                                                                                                                                                                                                                                                                                           

violation because it appeared to have been "made in furtherance of the campaign" as                                                                                                                                                                                                                                                                                                                                   

Eberhart sought only his own and his mayoral opponent's records. Because "the cost of                                                                                                                                                                                                                                                                                                                                   



                                                                See FGCO 50-461(c) (1960).  

                                                                                                                                                                                                           -3-                                                                                                                                                                                            7276  

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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  


                2              See  AS 15.13.390(a) (outlining possible civil penalties for violations of                                                                                              

state election rules codified in Title 15).  APOC staff outlined the basis for the penalty                                                                                                 

amount   in   its   investigative   report,   explaining:     "The   maximum   civil   penalty   for   a  

violation of AS 15.13.145 is $50 per day for each day the violation continued . . .                                                                                                                   

Eberhart's request to the clerk resulted in three emails, over a period of three days. This                                                                                                       

represents three penalty days, and therefore the maximum penalty for the violation is                                                                                                                   


                                                                                                   -4-                                                                                          7276

----------------------- Page 5-----------------------

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  

                                                 3                                                                                                                 4  

                                                      The order noted that in a previous case APOC  had found that "the  

AS 15.13.145(a)(4).                                                                                                                                                                                        

use of municipal assets or property such as an email system for campaign purposes [was]  


prohibited by this section."  APOC "conclude[d] that it [was] more likely than not that  


the request, focused on [Eberhart]'s record and his opponent's record (rather than on the  


record of all other city council members), was to obtain information that could be used  


to  influence  the  mayoral  election."                                                        The  order  also  acknowledged  that  the  use  of  


resources could be considered de minimis and therefore agreed with the recommendation  



to reduce the civil penalty to $37.50 from a possible $150.   


                3                Alaska Statute 15.13.145(a) states:                                                     

                                 (a) Except as provided in (b) and (c) of this section, each of                                                                   

                                 the   following   may   not   use   money   held   by   the   entity   to  

                                 influence the outcome of the election of a candidate to a state                                                                       

                                 or   municipal   office:     (1)   the   state,   its   agencies,  and   its  

                                 corporations;   (2) the University of Alaska and its Board of                                                                                 

                                 Regents;   (3)   municipalities,   school   districts,   and   regional  

                                 educational attendance areas, or another political subdivision                                                         

                                 of   the   state;   and   (4)   an   officer   or   employee   of   an   entity  

                                 identified in (1)-(3) of this subsection.                          

                4                Hancock v. Marquardt, 07-02-CD (July 2, 2008).  


                5                See AS 15.13.390(a) (outlining possible civil penalties for violations of  



                                                                                                       -5-                                                                                              7276

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                                 Eberhart appealed the order to the superior court, listing 14 points on                                                                                                    

appeal.   Among them he challenged whether APOC had substantial evidence to support                                                                                                              

its findings.                  The court rejected all of Eberhart's claims on appeal.                                                                              

                                 Eberhart appeals.   

III.             STANDARD OF REVIEW                           

                                 "When the superior court has acted as an intermediate court of appeal, we                                                                                                  


review   the   merits   of   the   administrative   agency's   decision   .   .   .   ."                                                                                                                  

                                                                                                                                                                                   "[W]hen  the  


interpretation at issue implicates agency expertise or the determination of fundamental  



policies  within  the  scope  of  the  agency's  statutory  functions[,]"                                                                                                 then  "[w]e  give  



deference to [an] agency's interpretation of a statute so long as it is reasonable[.]" 


"[W]hen the statutory interpretation does not involve agency expertise, or the agency's  

                                                                                                                                                                                          9 then "we  



specialized knowledge and experience would not be particularly probative[,]" 

                5                (...continued)  


state election rules codified in Title 15).  

                6               Studley v. Alaska Pub. Offices Comm'n                                                              , 389 P.3d 18, 22 (Alaska 2017)                                  

(quoting Tolbert v. Alascom, Inc., 973 P.2d 603, 606-07 (Alaska 1999), superseded on  


other grounds).  Eberhart argues that the superior court applied the wrong standard of   

review because it "deferred to APOC on all legal and factual matters." APOC is correct                                                                                                            

that, insofar as his argument is based on the superior court's alleged error, any such error                                                                                                           

is irrelevant and harmless because we review the agency decision directly.  Id.  


                7               Id. at 22 (quoting Marathon Oil Co. v. State, Dep't of Nat. Res., 254 P.3d  


 1078, 1082 (Alaska 2011)).  


                8               Id. (second alteration in original) (quoting Marathon Oil Co., 254 P.3d at  



                9               Id.  (quoting Lakloey, Inc. v.  Univ. of Alaska , 141 P.3d 317, 320 (Alaska  



                                                                                                      -6-                                                                                             7276

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will substitute our own judgment for questions of law."                                                "Constitutional issues are              

questions of law subject to independent review."                                   11  



           A.	         Eberhart Has Abandoned Any Argument That The Agency's Factual  


                       Findings Were Not Supported By Substantial Evidence.  


                       APOC argues that Eberhart did not challenge any of the agency's factual  



findings in this appeal.                    In his reply brief Eberhart dismisses APOC's argument as a  


"false[]  claim[]."              He  asserts  that  "[a]ll  the  evidence  in  the  record  establishes  that  


Eberhart['s]  purpose  [in  sending  the  email  and  requesting  the  information]  was  to  


address issues arising in City Council meetings."  But he does not point us to anything  


in his opening brief or statement of points on appeal to show he had actually challenged  


APOC's factual findings prior to this short statement in his reply brief.  Nor is there any  


reference to the substantial evidence standard of review for such issues in his reply brief  


or elsewhere in his briefing to this court.  In contrast Eberhart specifically argued to the  


superior court that APOC's factual findings were not supported by substantial evidence.  


We have previously held that an argument omitted from an appellant's points on appeal  

                                                                                                13    We have further held that  


and not mentioned in the opening brief is abandoned. 

           10	         Id.  

           11          Patterson v.           GEICO Gen. Ins.                  Co., 347         P.3d   562,   568   (Alaska 2015)   

(quoting  Harrod v. State, Dep't of Revenue                               , 255 P.3d 991, 995 (Alaska 2011)).               

           12          Both parties argued this point at oral argument before us:  APOC argued  


Eberhart had abandoned challenging APOC's factual findings but spent considerable  


time arguing in the alternative the merits of such a challenge.  


           13          Oels v. Anchorage Police Dep't Emps. Ass'n, 279 P.3d 589, 599 (Alaska  




                                                                       -7-	                                                                7276

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"[a]ttention to the issue in a reply brief does not resuscitate it."                                                                                                                                                                  Accordingly, we do not                                                    

address the merits of whether APOC's factual findings were supported by substantial                                                                                                                                                                                                 

evidence as that issue has been abandoned by Eberhart on appeal.                                                                                                                                                                                  

                         B.	                     Eberhart'sArguments                                                                     RelatedTo                                   TheInterpretationOf                                                                  AS15.13.145   

                                                 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                                                                                                                                                                                                                              


                                                 The   word  "to"   can   be   "used   as   a   function   word   to   indicate   purpose,  

intention, tendency, result, or end."                                                                                                15  


                                                                                                                                                As Eberhart argues, courts "ordinarily resist[]  



reading words or elements into a statute that do not appear on its face."                                                                                                                                                                                                   But the word  


"to" appears on the face of the statute, and one of its common meanings entails purpose  

                         14                     Id.  (alteration in original) (quoting                                                                                           Braun v. Alaska Commercial Fishing                                                                            

and Agric. Bank,                                               816 P.2d 140, 145 (Alaska 1991)).                                                                    

                         15                      To, WEBSTER 'S  THIRD  NEW  INTERNATIONAL  DICTIONARY  (2002).  




                                                Bates v. United States, 522 U.S. 23, 29 (1997); see also Alaskans for a  


 Common Language, Inc. v. Kritz, 170 P.3d 183, 192 (Alaska 2007) ("[W]e may not read  


into a statute that which is not there . . . .").  

                                                                                                                                                         -8-	                                                                                                                                             7276

----------------------- Page 9-----------------------


or intent.              Accordingly APOC's interpretation of the statute, that "to influence" means                                                                     

"for the purpose of influencing," is both reasonable and in keeping with the general rule                                                                                    


that courts not read additional terms into a statute.                                                         


                            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  

                                                                            19    Contrary to Eberhart's assertion, Dansereau v.  


to change the result of the election." 

 Ulmer does not require evidence of actual influence -either in an election contest under  


AS 15.20.540, which is the context of that case, or in the present context.20                                                                               It would be  


illogical  for  AS  15.13.145  to  require  proof  of  actual  influence  resulting  from  


inappropriate use of public money when that level of proof is not required to overturn  

              17            See To        , W    EBSTER 'S  THIRD  NEW  INTERNATIONAL  DICTIONARY  (2002).  



                            Eberhart  also  argues  that  2  AAC  50.375,  another  campaign  finance  

regulation, is contrary to APOC's interpretation of "to influence." He is mistaken. That                                                                                   


regulation does not apply to Eberhart's communication with another city employee.  2  


Alaska Administrative Code (AAC) 50.375 (2018).  It governs expense reporting, not  

the source of candidate resources, and the expenses governed in the regulation are those                                                                                  


related to communications with constituents.  

              19            See also Braun v. Borough, 193 P.3d 719, 732 (Alaska 2008) ("[T]he  


challenging party has 'the dual burden of showing that "there was both a significant  


deviation from statutory direction, and that the deviation was of a magnitude sufficient  


to change the result of the election." ' " (quoting DeNardo v. Municipality of Anchorage,  


 105 P.3d 136, 141 (Alaska 2005))).  


              20            903 P.2d 555, 569 (Alaska 1995). In Dansereau we held that the State was  


not entitled to summary judgment because it had not made "a prima facie showing that  


any violation was not of sufficient magnitude to affect the election result."  Id.  at 571  


(emphasis added).  


                                                                                       -9-                                                                                7276

----------------------- Page 10-----------------------

the result of a completed election.                                                     21  


                                   2.	              It was reasonable for APOC to interpret "money" to include  


                                                    property and assets including the city's email system.  


                                   Eberhart argues that APOC was wrong to interpret 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,                                                                                         the legislature intended to define  


"money" by its "common usage" which would "exclude[] emails."  


                                   APOC argues that it has formally and publicly interpreted "money" to  


include the use of resources beyond just cash.  It promulgated a regulation interpreting  


AS  15.13.145, which establishes that in this context " 'money' means government  


money, government property and assets, and the use of property, assets, or human  

                                                                                                                     23     And a 2008 APOC decision concluded  


resources belonging to a government entity." 

that AS 15.13.145(a)'s prohibition on the use of public money to influence a candidate  


election "cover[ed] the use of a publicly owned email system, which is purchased and  


                 21                Eberhart additionally argues that APOC presumed his actions actually                                                                                                     

influenced the election, and that it is constitutionally impermissible to presume influence                                                                                                               

from a contribution.                                  He also argues that whether a particular action actually influenced                                                                             

an election is a factual question that cannot be resolved on summary judgment if there                                                                                                                         

are genuine issues of material fact. But APOC did not make any finding or presumption                                                                                                            

about actual influence. In addition, both arguments would be relevant only if the statute                                                                                                                        

required proof of actual influence; we have held that it does not.                                                                                                       

                 22                Providing definitions that apply to Title 15, Chapter 13.  


                 23                2 AAC 50.356(d).  


                                                                                                           -10-	                                                                                                    7276

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maintained through public money."                                                      



                               "Agencyinterpretationsarenot binding on our interpretationofastatute," 

but we "give deference to an agency's interpretation of a statute when the question  


                                                                                                                                                                       26     unless  the  

involves  fundamental  policy  decisions  or  administrative  expertise"                                                                                                                      


interpretation is unreasonable.27                                              When agency expertise "would not be particularly  


probative on the meaning of the statute," we independently interpret the statute.28   We  


do not need to resolve which standard applies in this case because APOC's interpretation  


is the most logical and reasonable interpretation of the statute.  


                               The dictionary definition of "money" focuses on cash or legal tender.29  But  


APOC's argument that "the city's money is used to establish and maintain" its email  


system is well taken.   It is unlikely that the legislature, in attempting to "restore the  


                24             Hancock v. Marquardt                                 , 07-02-CD (July 2, 2008).                                     Regulated entities are   

held to have constructive notice of how agencies will interpret statutes from their text.                                                                                                                

Marathon Oil Co. v. State, Dep't of Nat. Res.                                                                 , 254 P.3d 1078, 1087 (Alaska 2011)                                        

(finding that thedepartment's                                       consistent interpretation ofa statute                                           sufficiently put parties   

on notice of that interpretation especially as it was a reasonable interpretation of statutory                                                                                     

language);  Alyeska Pipleline Serv. Co. v. State, Dep't of Envtl. Conservation                                                                                                  , 145 P.3d     

561,   570-71   (Alaska   2006)   (holding   that   careful   reading   of   statute   gave   the   party  

constructive notice that it might be subject to fees).                                                    

                25             Grimm v. Wagoner, 77 P.3d 423, 433 (Alaska 2003).  


                26            Alaska Pub. Interest Research Grp. v. State, 167 P.3d 27, 42 (Alaska 2007).  


                27             Marathon Oil Co., 254 P.3d at 1082.  


                28             Id. (quoting Matanuska-Susitna Borough v. Hammond, 726 P.2d 166, 175  


(Alaska 1986)).  


                29             Money, WEBSTER'S  THIRD  NEW  INTERNATIONAL  DICTIONARY  (2002).  


                                                                                               -11-                                                                                        7276

----------------------- Page 12-----------------------


public's trust in the electoral process and to foster good government,"                                                                                                                                  intended to bar                   

public cash from being used to influence elections for a candidate but intended to allow                                                                                                                                            

non-monetary resources, purchased and maintained with public cash, to be used for the                                                                                                                                                       

 same purpose.                                The most reasonable interpretation of the term "money," given the                                                                                                                           

definition in 2 AAC 50.356(d), includes the use of a city-established and maintained                                                                                                                                

resource like the email system.                                                          

                   C.	                It Was Not A Violation Of The First Amendment To Enforce The                                                                                                                                     

                                      Statute Without A Finding That Eberhart Engaged In Corruption.                                                                                                       

                                      Eberhartarguesthattheonlyconstitutionally legitimategovernmentinterest                                                                                                                    

for   regulating   campaign   finances  is  "preventing   corruption   or   the   appearance   of  



                                        and that the First Amendment requires the enforcing entity to demonstrate  


its corruption prevention purpose by proving the existence of corruption each time it  



enforces campaign finance laws.                                                                  Eberhart asserts that the fine imposed under AS 15.13  


was  unconstitutional  because  APOC  did  not  find  any  "existence  or  appearance  of  

                                   33        This  argument  mistakes  the  requirement  that  a  statute  must  have  a  


legitimate purpose for a requirement that an enforcing authority must demonstrate that  


purpose every time it enforces the statute.  


                   30	                Ch. 48,  1, SLA 1996.                            

                   31                McCutcheonv. Fed. Election Comm'n,134S.Ct.1434, 1450 (2014) (citing  


Davis v. Fed. Election Comm'n, 554 U.S. 724, 741 (2008)).  


                   32                 U.S.   CONST.   amend.   I   ("Congress   shall   make   no   law   respecting   an  

establishment of religion, or                                                        prohibiting the free                                       exercise thereof; or                                        abridging   the  

freedom of speech, or of the press; or the right of the people peaceably to assemble, and                                                                                                                                                 

to petition the Government for a redress of grievances.").                                                                                                          

                   33                 APOC argues that Eberhart abandoned this argument due to inadequate  


briefing.  Because the argument is easily dispensed with we do not address the issue of  




                                                                                                                    -12-	                                                                                                             7276

----------------------- Page 13-----------------------

                          Eberhart cites several cases for the proposition that preventing corruption                                              


is the only legitimate governmental interest for restricting campaign finances.                                                                                    

                                                                                                                                                          But as  


APOC  points  out  these  cases  are  specifically  about  campaign  contribution  limits,  


whereas this case implicates an entirely different election-related concern: the improper  


use of government resources.  McCutcheon v. Federal Election Commission, one of the  


cases Eberhart cites, addresses a challenge to a statute establishing aggregate limits on  



"how much money a donor may contribute in total to all candidates or committees." 

Its  reasoning  does  not  apply  to  a  statute  barring  the  improper  use  of  government  


resources to influence elections. We find no support for Eberhart's assertion that APOC  


must prove there was corruption before it can enforce the statute and impose a fine.  


             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.  


                                                                                                                                                   He argues  


that in order to "provid[e] effective advocacy as a City Council member"  he needed to  


research the public record regarding issues raised by members of the public and that he  


was doing such research when he sent the email.  But the Buckley court was concerned  


with whether restrictions on campaign contributions would "prevent[] candidates and  

             34           See McCutcheon                   , 134 S. Ct. at 1438;                    Buckley v. Valeo                  , 424 U.S. 1, 21            

(1976);  State v. Alaska Civil Liberties Union                                        , 978 P.2d 597, 603 (Alaska 1999).                                     

             35          McCutcheon, 134 S. Ct. at 1442 (citing 2 U.S.C.  441a(a)(3) , invalidated  


by McCutcheon, 134 S. Ct. 1434).  


             36           See 424 U.S. at 21 ("[C]ontribution restrictions could have a severe impact  


on political dialogue if the limitations prevented candidates and political committees  


from amassing the resources necessary for effective advocacy.").  


                                                                               -13-	                                                                         7276

----------------------- Page 14-----------------------


political committees from amassing the resources necessary for effective advocacy."                                                 


We echoed that understanding of "effective advocacy" in State v. Alaska Civil Liberties  

                                                                                                              38   The cases  



Union, which discussed limits on contributions to candidates for office. 

again do not apply to Eberhart's actions. Imposing a fine for inappropriate use of his city  


email account does not undermine Eberhart's ability to be an effective advocate for his  


constituents as a sitting member of the city council.  


                    Eberhart also argues that APOC's "rule" would bar sitting elected officials  


from using even public information that they had received as office holders in their  


election campaigns.  But APOC emphasizes that its order did not punish Eberhart for  


using public information, it "penalized him for using his municipal email address to  


obtain the information" for campaign purposes.  Had Eberhart received the information  


in the normal course of his duties, or had he sought it for campaign purposes using his  


own private resources, there would be no violation of AS  


          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  


          37        Id.  

          38        978  P.2d  at  605,  624.  

          39        The  APOC  staff  investigator  who  investigated  the  complaint  testified  at  the  

hearing   that   a   request   sent   from   any   other   email  address   "would   not   have   been   a  


                                                              -14-                                                        7276

----------------------- Page 15-----------------------


(disclosure requirements), not a candidate's improper use of government resources.                                                                                  


Under AS 39.50.060(b), a potential sanction for violating the disclosure requirements is  


election forfeiture. The severity of this potential sanction was a key part of our rationale  

                                                                                                              41    In this case the sanction  



for applying a substantial compliance standard in Grimm.  

applied to Eberhart's failure to strictly comply with AS 15.13.145 was a $37.50 fine.  


More serious violators face only increased fines,42 not the forfeiture of election results  


                                                                                       43   Because the severity of the sanctions  

like the candidate potentially faced in Grimm.  


faced  does  not  compare  to  that  in  Grimm,  adoption  of  the  substantial  compliance  


standard in this case is unnecessary.  


                         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."44                                                                    APOC  


             40          77 P.3d 423, 425-27 (Alaska 2003).                      

             41          Id.   at 431-33.    The court particularly noted that the sanction of election                                             

forfeiture would be "inconsistent with the presumptive validity of election results" and  


"would thwart voter intent in contravention of Alaska law."                                                     Id.  at 432.         These concerns   

are not implicated in the instant case.                                 See  AS 39.50.060(b).                     

             42          See AS 15.13.390.  


             43          77 P.3d at 432-33.  


             44          The criteria for no significant harm to the public established in the standing  


order are:  


                         The error creates no significant harm to the public when there  


                         are no aggravating factors and:  1. the dollar amount missing  


                         from a form or disclosure is de minimus  [sic]; 2. the dollar  


                         amount of the information missing from a form or disclosure  



                                                                             -15-                                                                        7276

----------------------- Page 16-----------------------

rightly argues that the standing order "only address[es] disclosure requirements."                                                                                                                                                                                                                   

                                                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,                                                                                                                                                                                                    

this material explicitly applies to filings.                                                                                                     45  Eberhart has not shown that the substantial  

 compliance standard for filing disclosures applies to the statute he violated.  Nor has he  


made an adequate argument that we should decide that it does.  


                        44	                     (...continued)


                                                is marginal and  the filer self-reported the error; or 3. the


                                                missing or incomplete information is readily available to the


                                                public through another forum.

                        45                      In his reply brief Eberhart asserts for the first time that the standing order  


 should apply to his case because, although he was cited for using government resources  


 in violation of AS 15.13.145, the fine was issued under AS 15.13.390(a), which he  


 characterizes as "a civil penalty for late filing required reports."  This issue has been  


 abandoned because it was not raised until his reply brief.   Oels v. Anchorage Police  


Dep't Emps. Ass'n, 279 P.3d 589, 599 (Alaska 2012).  


                                                                                                                                                    -16-	                                                                                                                                           7276

----------------------- Page 17-----------------------

                      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                                                                                                                                                                             


                                            1.	                  Whether APOC should have rejected the complaint because it                                                                        

                                                                 was noncompliant is not judicially reviewable.                                                                         

                                           APOCprocedural regulations                                                                      describetherequired contents of                                                                        acomplaint   


that alleges a violation of AS 15.13.                                                                                                                                                                                                                                                    

                                                                                                                           Among other things, the complaint must provide  


"the statute or regulation alleged to be violated" and "the basis of the complainant's  



knowledge  of  the  facts  alleged."                                                                                     Upon  receiving  a  complaint,  APOC staff  must  


determine if it contains all of the required information; if the complaint does not comply  



with the requirements "the staff shall . . . reject the complaint."                                                                                                                                              The complainant may  



seek review of a rejection by APOC. 

                      46                   2 AAC 50.870(b).         



                                           2 AAC 50.870(b)(3), (5).  



                                           2 AAC 50.870(c)-(d).  



                                           2 AAC 50.870(d).  

                                                                                                                                     -17-	                                                                                                                             7276

----------------------- Page 18-----------------------

                                                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                                                                                                                                                

                                                                                                                              50       Like many other agency actions, it is not a "final  

 decision to investigate a complaint.                                                                                                                                                                                                                                                       

 decision of an administrative agency."51                                                                                                            Because no such appeal right is provided by  



 law, an appellate court does not have jurisdiction to consider such a claim.                                                                                                                                                                                                    


                                                2.	                    APOC's investigation into Eberhart's use of his city email was  




                                                Eberhart  also  argues  that  APOC  "dismissed  the  substance  of  [the]  


                        50                      Eberhart passingly argues in his reply brief that it was improper for APOC                                                                                                                                                                  

 staff to expand the investigation to obtain five and half months of his city emails but does                                                                                                                                                                                                       

not identify what regulation this might have violated or explain how we could review                                                                                                                                                                                                       

 that   decision.     Because   the   argument   was   not   raised   until   his   reply   brief   and   is  

 inadequately briefed we do not address it further.                                                                                                                         Oels v. Anchorage Police Dep't Emps.                                                                              

Ass'n , 279 P.3d 589, 599 (Alaska 2012) (explaining arguments that are cursorily briefed                                                                                                                                                                                                   

 or not raised until a reply brief will be considered abandoned).                                                                                                                  

                        51	                     Alaska R. App. P. 601(b).  


                        52                     Id. ; see Kyte v. Stallings, 334 P.3d 697, 699-700 (Alaska 2014) (evaluating  


whether a decision was clearly final and therefore started the 30-day appeal period under  


 Appellate Rule 602(a)(2)); Pruitt v. City of Seward, 152 P.3d 1130, 1136 (Alaska 2007)  


 (citing 2 RICHARD  J. P                                                         IERCE, A                       DMINISTRATIVE  LAW TREATISE    15.15 (4th ed. 2002))                                                                                                                      


 (discussing informal agency decisions that are not final).                                                                                                                                                 

                                                                                                                                                   -18-	                                                                                                                                          7276

----------------------- Page 19-----------------------

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.                                

                      Theoriginal complaintcontained threebroad 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- 




                      2 AAC 50.875(a).  

                                                                     -19-                                                                    7276  

----------------------- Page 20-----------------------


granted power to investigate.                             We accordingly reject such a restriction of APOC's                             

investigatory power.                  


            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.' "               "[T]o establish a prima facie claim to this privilege in any given case,  


the government must show that the document whose disclosure is sought is an internal  


communication or one that the government directly solicited and that the communication  



is both predecisional and deliberative." 


                       Eberhart argued at the APOChearing 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."  

            54         See  AS 15.13.030(7).   

            55         APOC  asserts  that  Eberhart  has  waived  arguing  that  the  emails  were  


privileged because he did not sufficiently raise and preserve the argument before APOC  


or before the superior court.  Because the argument is easily dispensed with we do not  


address APOC's waiver argument.  


            56         Fuller v. City of Homer, 113 P.3d 659, 660 n.3 (Alaska 2005) (Fuller II)  


(alteration  in  original)  (quoting  Gwich'in  Steering  Comm.  v.  State,  Office  of  the  


Governor, 10 P.3d 572, 578 (Alaska 2000)).  


            57         Fuller v. City of Homer, 75 P.3d 1059, 1063 (Alaska 2003) (Fuller I)  


(citing Gwich'in Steering Comm., 10 P.3d at 579, 581).  


                                                                        -20-                                                                   7276

----------------------- Page 21-----------------------

                      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                                            .    The  


documents at issue in that case related "to the governor's lobbying efforts to open the  

                                                                                                                59    The documents  



Arctic National Wildlife Refuge for oil exploration and drilling." 

described proposed lobbying strategies and media plans, as well as internal discussion  


of the proposed plans; we affirmed that all of the documents were both predecisional and  


deliberative.60           But Eberhart does not explain why his emails are similar or why they  


should  be  protected;  he  merely  asserts  that  "[t]here  is  little  question  that  the  


communication . . . was an internal communication and that [it] was both predecisional  


and deliberative" and that he therefore "had a prima facie  claim to deliberative process  


privilege."  The burden is on the government, or government actor asserting privilege,  


                                                                                                                             61   Eberhart  

to show that the communication is presumptively protected by the privilege.                                                       


has not met this burden.  His argument that his actions are protected by the deliberative  


process privilege fails.  


V.         CONCLUSION  

                      We AFFIRM the superior court's decision affirming APOC's final order  


and civil penalty.  


           58          10  P.3d  at  580-84.  

           59         Id.  at  576.  

           60         Id.  at  581-583.  

           61         Fuller  I,  75  P.3d  at   1063.   Once  the  government  establishes  a  prima  facie  

claim   of   privilege,   the   burden   shifts   to the   requesting   party   to   demonstrate   that   the  

public's  interest  in  disclosure  outweighs  the  government's  interest  in  confidentiality.    


                                                                     -21-                                                              7276

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