2013-Op.(Mar. 12).
Case Date | March 12, 2013 |
Court | Alaska |
Alaska Attorney General Opinions
2013.
2013-Op.(Mar. 12).
March 12,
2013Patricia
Jacobson Chair and Designated Ethics Supervisor
University of Alaska Board of Regents 202 Butrovich
Building 910 Yukon Drive P.O. Box 755300
Fairbanks, AK 99775-5300Re:
Advisory Opinion Addressing Denali Commission Compensation AGO
File No. AN2010100322Dear Chair Jacobson:
This opinion addresses your request for advice regarding the
Request for Ethics Determination, dated January 28, 2013, forwarded to you by
Pat Gamble, President of the University of Alaska. As chair of the Board of
Regents for the university, you serve as Mr. Gamble's ethics supervisor and are
entitled to receive advice under AS 39.52 240(a).
Mr. Gamble seeks clarification of his responsibilities under the
Executive Branch Ethics Act. Specifically, he asks whether acceptance of
federal compensation for service on the Denali Commission, a federal agency
created to provide job training and encourage economic development in Alaska,
will violate AS 39.52.120. He considers his work with the commission to be part
of his job as the president of the university. To date, he has waived
compensation from the commission for that work because AS 39.52.120(b)(2)
states that a public officer may not receive compensation for performance of
official duties from a person other than the state.(fn1) He reports that, based
on a recent analysis of federal law, the Denali Commission will require that he
be paid federal compensation for commission service in the future. The
commission also will reimburse travel expenses either to him if he pays those
expenses or to the university if the university pays them, as it has in the
past.
As discussed in detail below, acceptance of the compensation from
the Denali Commission is permitted and doing so will not violate the Ethics
Act. Also, the commission's payment of travel expenses in this circumstance is
a gift to the state.
I. BACKGROUND INFORMATION
A. Denali Commission
The Denali Commission is an independent federal agency created by
the Denali Commission Act of 1998(fn2) to, among other things, provide job
training and encourage economic development in distressed communities in Alaska
and to promote modern infrastructure needs, including power, water and
sanitation, in rural Alaska. The federal legislation creating the commission
provides for seven specially named commissioners appointed by the United States
Secretary of Commerce, including the Governor of Alaska, who serves as
co-chair, and the President of the University of Alaska, or for either
position, an individual selected from nominations submitted by the governor or
university president.(fn3)
The Denali Commission Act also provides that the commissioners
"shall be compensated" for their services based on a federal pay schedule and
requires the commission to pay their travel expenses, including per diem based
on federal rates.(fn4) In an opinion dated March 30, 2012, the Comptroller
General of the United States Accountability Office determined that the
commission may not accept waivers of compensation from nonfederal commissioners
because failure to pay the compensation would violate the Antideficiency Act.
That act prohibits federal agencies from accepting voluntary services without
specific statutory authority.(fn5)
Then, in December 2012, the Internal Revenue Service issued a
Letter Ruling determining that the Denali Commission's nonfederal commissioners
are its "employees" and that compensation paid for commission services is
income, which must be included in the person's gross income for federal tax
purposes, whether accepted or not. In reaching the conclusion that the
commissioners are employees, and not agents of their respective offices or
organizations identified in the Denali Commission Act, the ruling finds, among
other reasons, that the Secretary of Commerce appoints the person to serve in
each position and may remove that person; that is, a position is not filled by
operation of the statutory designations alone.
B. Past Recognition of Denali Commission Service as
Function of State Position
Historically, based on President Gamble's disclosure, the
opinions discussed in the preceding section, and a 2003 informal attorney
general opinion,(fn6) we understand that Alaska public officers serving as
commissioners have simply declined to accept compensation from the Denali
Commission based on the prohibition in AS 39.52.120(b)(2) and that the
commission regularly reimburses...
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