Dunleavy’s state-funded ads targeting legislators may violate state ethics act: Reports

Gov. Mike Dunleavy at a midday news conference on Day 121 of the legislative session on May 15, 2019.

Not much about Gov. Michael J. Dunleavy’s first six months in office has been by the books and not the least of which has been his administration’s eager use of state-funded advertising to play to the base and go after specific legislators.

The governor has used the messages to drum up a decidedly divisive, often factually inaccurate us-versus-them tone and it’s made for a different type of session. Legislators’ inboxes have been hit with messages containing racial slurs and hearings have been filled with accusations that legislators are thieves, thinly veiled threats and demands that they fall in line behind the governor.

It turns out those advertisements may violate the state’s ethics act, according to a newly revealed legal memo acquired by the Alaska Landmine.

The memo was ordered up by Anchorage Democratic Rep. Zack Fields regarding a promoted Facebook post by the governor’s office that targeted the House Majority for passing a budget without a dividend while the Senate included a full $3,000 PFD in its budget.

“The Senate has proposed a full $3,000 PFD, but sadly the House Majority has proposed a $0 PFD.”

The post didn’t mention that the reason the House passed a budget without a dividend is because it intended to take up the issue in a separate bill, which also happens to be how Dunleavy structured his budget. The Senate’s inclusion of the PFD in its budget was also generally seen as a placeholder move that was unlikely to stand.

The governor has also used state-funded advertising to attack specific legislators, all women and all Republicans. The ads have targeted Senate President Cathy Giessel, Sen. Natasha von Imhof and Rep. Tammie Wilson. None of those ads were referenced in this legal memo, and the one targeting Wilson occurred after the memo was ordered.

The memo, which is dated May 20, asks two basic questions to decide whether the ad violates the state ethic’s act prohibition on using state funds for partisan political purposes: “Is the ad ‘for partisan political purposes?’” and “Does the ad have ‘the intent to benefit the public interest at large through the normal performance of official duties?’”

The memo says yes on the first count, noting that while the definition of “political party or group” is nebulous in state law it would very likely include a legislative caucus like the House Majority.

The second issue could be a little more open to interpretation because a PFD could be cast as a public interest, but the memo says the legal history is clear that this wouldn’t fall under that protection. It argues that while the use of public money for campaigning isn’t explicitly prohibited, it must be done in a manner that is “fair and neutral” and that state law must allow it (think of a state campaign for an initiative, for example).

The spending, according to the legal memo, fails to pass either test.

“Based on the foregoing, if a complaint were filed against the governor related to the attached ad, the special counsel and the personnel board may determine that producing and paying for the ad constitutes a prohibited use of state funds by a public officer.”

Like arguments around the constitutionality of education forward funding, the opinion doesn’t do anything on its own. An ethics complaint would need to be brought against the governor for the issue to be formally decided.

Impact

Though the advertisements may have been effective at drumming up interactions and impressions of Facebook, they haven’t done much to change the course of the legislative session in Dunleavy’s favor. With the dividend, Dunleavy’s core campaign promise, still undecided, the ads have served to draw the oft-pugnacious chambers of the Legislature closer together.

Senate President Cathy Giessel, who’s generally considered a far-right Republican, and House Speaker Bryce Edgmon, a moderate rural legislator, have fallen closer and closer into line in the last month of session, often issuing public statements that support each other.

A story by the Anchorage Daily News on the ads even includes a chummy scene between the two:

“Have you ever seen anything like it, Bryce?” asked Senate President Cathy Giessel, R-Anchorage, in a Friday morning meeting.

“No, not anything like this at all,” replied House Speaker Bryce Edgmon, I-Dillingham. “(As) somebody who worked in the Capitol throughout the ’90s, and I’ve been a legislator for well over a decade — I’ve never seen an administration employ tactics like this, and especially, apparently using state funding to do it.”

Still, chumminess in the face of state-funding political advertising hasn’t moved the Alaska Legislature much closer to resolution of its big to-do items left. The Legislature still has to settle on a dividend and pass the budgets.

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