Commissioners to APOC Staff: Try Again.

One of the 17 ads named in the complaint

Some of you have been following the saga here on Mudflats about my APOC complaint against Alaska House District 5 Representative William Thomas, Jr. (R-Haines) and his re-election campaign. The complaint (plus amendment) deals with 17 ads placed and designed by campaign Deputy Treasurer James Studley and charged to various Haines businesses. My complaint asserts that they should be considered illegal campaign ads in total, either illegal in-kind contributions because some of them were paid for by corporations, or illegal independent expenditures because they were coordinated with Studley as well as others campaign staff.

We left the story at the APOC hearing, which actually went very well. My testimony was first and there were a number of questions from the very engaged Commissioners. I felt my strongest points were made regarding the fact that two of the ads (including the one pictured above) the APOC staff agreed fell under the definition of compaign communications, yet 15 other “thank you” ads were given a pass by the APOC Staff (from their report):

“Staff’s investigation revealed that the intent of James Studley and the other Haines business owners was to create “thank you” ads independently of the Rep. Thomas campaign. Each Respondent in this case indicated that the intent of the thank you ads was not to influence the outcome of Rep. Thomas or Senator Kookesh’s re-election, but was to express gratitude for their service in the state legislature,”

I respond to that in my testimony at the hearing:

The staff’s conclusion is in utter conflict with the “Facts” presented in Section III, P4, para 2:

“James Studley thought of the idea to run “thank you” ads following the U.S. Supreme Court’s decision in Citizen United. Mr. Studley’s original understanding was that Citizens United held that businesses could now give contributions to candidates. However, he wanted to play it safe with any action, and to run his ads separately from the Rep. Thomas campaign. In May 2010, he began contacting Haines business owners in an effort to demonstrate local support for Rep. Thomas…”

The Citizens United case had nothing to do with fluffy “thank you” ads, it dealt specifically with campaign communications. Mr. Studley basically lays it out for us that he intended to find a way to campaign for Bill Thomas without having to bother with those pesky campaign laws, which are understandably annoying. Had he not been a member of the campaign, he may have found the road easier.

The Commissioners were full of questions when it was the staff’s turn to present and it was clear that some of my points were already on their mind. It was also clear that the fact Mr. Thomas’ campaign documents fail to show that they placed any advertising at all in the Chilkat Valley News, one of the two biggest papers in District 5, was a surprise to the Commission.

By the way, this was the first time in four campaigns he didn’t purchase any ad space. (Could those “thank you ads” negate the need for further advertising?)

Monday, following nasty ice storms and the Thanksgiving holiday, the Commissioners went into Executive Session to deliberate on the issues presented in the hearing 10 days previous. Today, they made their ruling. The title itself boded well for “our side”:

ORDER REJECTING RECOMMENDATION TO DISMISS COMPLAINT ALLEGATIONS AND REMANDING TO STAFF FOR PREPARATION OF NEW INVESTIGATION REPORT

Below follows the entire report, as it has not yet been included on the website (emphasis mine…on issues I brought up in my testimony):

On October 4, 2010, the Complainant Linda S. Kellen filed complaints against Respondents Representative William Thomas, Joyce Thomas, Doug Olerud, James Studley, and Gregg Richmond. The Commission on October 11, 2010 granted an unopposed motion to consolidate these cases for purposes of drafting a staff report and a hearing. The complaints allege that the Respondents violated AS 15.13 because they did not file the required campaign disclosure reports regarding a series of “thank you” advertisements that ran on a weekly basis from June 17, 2010 to October 7, 2010 in the Chilkat Valley News, a weekly newspaper in Haines, Alaska. During this period, a total of 17 separate “thank you” advertisements ran in the newspaper.

The staff investigated the allegations and issued an investigation report dated November 5, 2010 recommending that the complaints’ allegations be dismissed, with the limited exception that two of the “thank you” advertisements that expressly included the word “vote” should be considered campaign expenditures and contributions that should have been reported to APOC.

On November 19, 2010, the Commission held a hearing regarding the staff’s recommendation to dismiss the complaints’ allegations, with the exception of the two advertisements referred to above. The Respondents did not appear at the hearing. The Complainant appeared and presented a statement protesting the staff’s recommendation to dismiss the complaints regarding the remaining approximately 15 “thank you” advertisements. The Complainant urged that all of the weekly “thank you” advertisements should be considered campaign expenditures and contributions regulated by APOC.

The Commission has carefully reviewed the evidence presented at the hearing and concluded that it cannot affirm the recommendation to dismiss the bulk of the complaints’ allegations at this time. It is important to note that this is not a final determination that the remaining allegations of the complaints have merit. Rather, pursuant to 2 AAC 50.460(c), the Commission at this stage of the proceedings must either accept or reject the staff’s recommendation to dismiss certain allegations. The Commission does not agree that the evidence conclusively supports a dismissal of the remaining allegations without further investigation and presentation of evidence. Thus, the complaints are remanded to the staff in order to prepare a new investigation report pursuant to 2 AAC 50.460(c).

In preparing a new investigation report and performing additional investigation, the Commission directs the staff to respond to the following issues:

(1) Should the weekly advertisements be considered one cumulative communications effort that was made for the purpose of influencing the nomination or election of a candidate and subject to APOC’s regulation of expenditures and contributions under AS 15.13?

(2) Did Mr. Studley coordinate each of the approximately 17 weekly advertisements that ran in the Chilkat Valley News? If so, is that fact significant? Related to that question, can the advertisements be considered independent expenditures?

(3) The volume of the “thank you” advertisements. The thank you advertisements ran for approximately 17 consecutive weeks as opposed to one or two weeks. Should the volume of ads be considered communications regulated by APOC?

(4) The timing of the advertisements. The legislature adjourned on April 18, 2010, the primary election was held on August 24, 2010, and the general election was held on November 2, 2010. Is it significant that the advertisements ran from June 17, 2010 to October 7, 2010?

(5) The language and format of the advertisements. Did the advertisements include similar language and a similar format? Are those facts significant?
(6) Two of the advertisements included language urging readers to “vote.” Is that fact significant regarding whether the other 15 advertisements should or should not be subject to APOC regulation as contributions or expenditures?

(7) Did Representative Thomas have an opponent in either the primary or general elections and are those facts significant?

(8) If one person coordinated the advertisements is the intent of the coordinator relevant to the issue of whether the advertisements should be considered communications regulated by APOC?

(9) The Complainant presented various arguments at the hearing: those arguments should be reviewed and considered.

(10) Mr. Studley submitted a written statement dated November 13, 2010. This statement should be reviewed and follow-up investigation undertaken regarding his assertions that he was at “fault,” and regarding any other pertinent issues such as those raised above.

(11) Based upon the results of further investigation, the investigation report should consider whether to continue or modify its conclusions regarding the violations alleged against each Respondent and the proposed penalties, if any. 1

The Commission also directs the staff to allow the Respondents an additional opportunity to address the issues raised in the complaint and the questions raised above.
Dated: December 1, 2010

BY ORDER OF THE ALASKA PUBLIC OFFICES COMMISSION

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1 The Commission does not disagree with the staff’s conclusion that two of the advertisements that expressly contain the word “vote” are subject to APOC regulation. However, it will await a new investigation report before considering the responsibilities of each Respondent regarding these communications and any appropriate penalties

It was clear that the Commissioners were listening, not just to me but to the testimony provided within the staff report. It seemed that the staff themselves were not.

I recieved a phone call this afternoon congratulating me on “my victory.” It is not a “victory” yet. We will need to see what the APOC staff comes up with in their next report and see whether or not they come to different conclusions.

If they don’t, will the Commission reject their report a second time?

This entire case is extremely significant for many reasons, including the advantage it would give incumbents if these “thank you ads” are allowed to stand as non-regulated communications. Another big reason: Representative Bill Thomas has now been chosen as the House Finance Committee Co-Chair. That means that Rep. Bill Thomas is now Co-chair of the committee that is in charge of (you guessed it) the budget for APOC.

For those who haven’t been following closely (or would like to brush-up) you can read about it HERE, then HERE and again HERE and finally HERE.

Stay tuned for updates…

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