9 AAC — Law | Omnilex

Chapter 05 Retail Advertising

9 AAC 05.010 Statement of purpose

Secs. 20 - 900of this chapter interpret the terms "unfair methods of competition" and "unfair or deceptive acts or practices" as those phrases apply to the public advertisement and in-store presentation of retail goods and services. Secs. 20 - 900 of this chapter are intended to clarify the law applicable to major areas of deceptive advertising practices, but are not intended in any way to limit the application of the Unfair Trade Practices Act, AS 45.50.471 - AS 45.50.561, to other deceptive practices, not specifically dealt with in this chapter.

History

Authority: AS 45.50.471; AS 45.50.491
Eff. 4/6/80, Register 74

9 AAC 05.020 Advertisement of price reductions from former price

(a) It is an unfair or deceptive act or practice for any seller to advertise merchandise using words such as "sale," "now on sale," "reduced," "special," or other language indicating a reduction in price, if the seller

(1) advertises the existence of a reduced price which is not a materially significant reduction from the seller's regular price for the merchandise; or

(2) fails to disclose the period of time during which the advertised price will be effective if the time period is less than four days from the date of the advertisement; or

(3) uses a general headline or lead-in for advertised items indicating price reductions when any of the advertised items are not offered at a reduced price, unless the seller discloses in the advertisement which items are not offered at a reduced price or which items are offered at a reduced price.

(b) It is an unfair or deceptive act or practice for any seller to advertise merchandise for sale under special circumstances using phrases such as "selling out," or "going out of business," unless the retail outlet is in fact going out of business, and the advertised merchandise is permanently reduced in price to clear the merchandise.

(c) It is an unfair or deceptive act or practice for any seller to advertise merchandise for sale under special circumstances using phrases such as "must be sacrificed," unless the merchandise so advertised is permanently reduced in price to clear the merchandise.

(d) It is an unfair or deceptive act or practice for a seller to advertise the same merchandise as being "on sale" or reduced from the seller's regular price if, in fact, the "on sale" price is the price for which the goods are actually sold for more than six months out of any 12-month period, or, in the case of seasonal merchandise, for more than one-half of the time it is offered by the seller unless the price is permanently reduced to clear the merchandise. An advertisement in which the seller discloses the last date or period of time when the seller's regular price was in effect meets the requirements of this section.

History

Authority: AS 45.50.471; AS 45.50.491
Eff. 4/6/80, Register 74; am 7/26/80, Register 75

9 AAC 05.030 Price comparisons

It is an unfair or deceptive act or practice for any seller to advertise a price comparison

(1) which is based on any price other than the seller's own regular price, unless the seller discloses the nature and source of the referenced comparison price, such as "manufacturer's list price" or "comparable retail value." If the reference price is not a usual or customary retail price in the trade area, the seller may use the reference price if the seller discloses the location where it is a usual or customary retail price, such as "Seattle price"; or

(2) which is based on the difference between the price of a system, set, or group of items and the price of the items purchased separately, unless the seller in good faith has offered for sale the separate items at the referenced comparison price in the recent, regular course of business or unless the items are customarily sold as separate items; or

(3) which is based on words such as "wholesale," "at cost," "factory price," or similar words unless the price is in fact no greater than normal wholesale cost, including actual freight cost if paid by the seller; or

(4) which is based upon a comparison of price with the price of merchandise materially different in composition, grade or quality, style or design, model, name or brand, kind or variety, or service and performance characteristics, unless the general nature of the differences is disclosed in the advertisement.

History

Authority: AS 45.50.471; AS 45.50.491
Eff. 4/6/80, Register 74; am 7/26/80, Register 75

9 AAC 05.040 Availability of advertised merchandise

(a) It is an unfair or deceptive act or practice for any seller to advertise merchandise for sale at a stated price, if the seller

(1) does not have the merchandise readily available at or below the advertised price in quantities normally sufficient to meet a reasonably expected public demand during the effective period of the advertised price, unless the seller is able to demonstrate that it ordered sufficient quantities of the advertised merchandise in adequate time for delivery; or

(2) fails to disclose in the advertisement all reasonably foreseeable exceptions, limitations and restrictions with respect to the availability of the merchandise, including but not limited to quantities of advertised merchandise available, quantities of advertised merchandise which may be purchased by an individual consumer, limitations on availability at individual stores in a chain, and limitations as to the length of the sale; or

(3) uses any text, statements, illustrations, drawings, or photographs in advertisements which do not fairly describe or depict or which are not representative of the advertised merchandise.

(b) It is an unfair or deceptive act or practice for any seller to advertise merchandise when the merchandise is not immediately available in the trade area unless the advertisement discloses that the item is not available in the trade area and, if not available, that shipping and handling costs are extra if they are not included in the price advertised. A catalog which gives tables for calculating shipping and handling costs meets the requirements of this section.

History

Authority: AS 45.50.471; AS 45.50.491
Eff. 4/6/80, Register 74; am 7/26/80, Register 75

9 AAC 05.050 Advertising reductions on items in a group

It is an unfair or deceptive act or practice for any seller to advertise price reductions on a group of differently priced items using phrases such as "as low as" or "up to 50 percent off" which merely identify the lowest reduced price in the group or the highest percentage or amount of price reduction in the group, if the lowest price or the highest percentage or amount of price reduction is not reasonably representative of a substantial number of the varied items in the group. Advertisements are presumed to meet the requirements of this section when the seller

(1) discloses in what way the items advertised at the lowest price or the greatest price reduction are not representative of the varied items in the group, such as by stating what portion of the total group of items are at the lowest price or subject to the greatest price reduction; or

(2) discloses both the highest and lowest reductions in prices for the advertised group; or

(3) states accurately that the prices of a group of items are reduced by a uniform amount or percentage, such as "all sofas 30 percent off."

History

Authority: AS 45.50.471; AS 45.50.491
Eff. 4/6/80, Register 74

9 AAC 05.900 Definitions

In this chapter

(1) "advertising" (including the terms "advertisement" and "advertise") includes the attempt directly or indirectly through publication, dissemination, solicitation, endorsement or circulation, display, including solicitation or dissemination by mail, telephone or door-to-door contacts, or in any other way, to induce a person to enter or not enter into an obligation or acquire title or any other interest in any merchandise or to increase the consumption of it or to make a loan;

(2) "disclose" means that the statement, representation, or term is presented clearly and conspicuously in the size, sound, color, or other contrasting manner that an ordinary person would readily observe it considering the circumstances, manner, and mode of presentation;

(3) "merchandise" means goods or services or a combination of goods and services;

(4) "person" includes a corporation, company, partnership, firm, association, institution, organization, business trust, or society, as well as a natural person;

(5) "price comparison" means the comparison in any advertisement of the seller's current price for merchandise with any other price or statement of value for the merchandise or the making of other claims of price reduction or savings with respect to that merchandise in comparison to other merchandise;

(6) "regular price" means the actual, good faith price at which the seller openly and actively offered the merchandise to the public on a regular basis, for a reasonable period of time in the recent, regular course of the seller's business. In determining whether merchandise was openly and actively offered, whether a period of time was reasonable, or whether a price was in good faith, the following factors will be considered: the particular merchandise or industry, the season, the number sold at the higher price, shelf life, and other material factors. If a seller has openly and actively offered a good faith price for the 14 selling days immediately before a price reduction, it will be presumed that the higher price was offered for a reasonable period of time in the recent, regular course of business. A seller may use a shorter period of time to establish a regular price, but the seller will then have the burden of showing that the shorter time was reasonable and that the higher price was a good faith price;

(7) "seller" means any person who offers merchandise for retail sale;

(8) "trade area" means the geographic area where the seller does business as determined by the location of the media in which the advertisement is published and the predominant location of the residences of those customers to whom the advertisements are directed or to whom the seller mails advertisements.

History

Authority: AS 45.50.471; AS 45.50.491; AS 45.50.561
Eff. 4/6/80, Register 74; am 7/26/80, Register 75

Chapter 10 Civil Liability for Shoplifting

9 AAC 10.010 Civil liability shoplifting forms

(a) The following adult demand letter may be used to satisfy the condition specified in AS 09.68.110(c):

ADULT DEMAND LETTER

[Store name]

[Store address]

[Date]

[Person's name]

[Person's address]

History

Authority: AS 09.68.110
Eff. 12/30/82, Register 84

Chapter 12 Charitable Solicitation

9 AAC 12.010 Charitable organization registration statement

(a) To file a registration statement or registration renewal statement, a charitable organization must use a registration statement or registration renewal statement on a form or in a format issued by the department. Information provided on the statement must include

(1) the full legal name and federal taxpayer identification number of the charitable organization;

(2) the charitable organization's mailing address, physical address, telephone number, facsimile number, electronic mail address, and Internet address;

(3) the names under which the charitable organization does business or solicits contributions;

(4) the place where, and the date when, the charitable organization was established or incorporated, and the type of organization;

(5) the charitable organization's tax exempt status with the United States Internal Revenue Service and whether the organization's tax exempt status has ever been denied, revoked, or modified;

(6) the names and addresses of the members of the charitable organization's governing body, including officers, directors, trustees, and principal employees;

(7) the general purposes for which the charitable organization is organized and for which contributions are solicited;

(8) the methods by which the charitable organization solicits contributions;

(9) the names and addresses of any paid solicitors that solicit contributions on behalf of the charitable organization;

(10) the dates on which the accounting or fiscal year of the charitable organization begin and end;

(11) a statement containing financial information for the charitable organization's most recent fiscal or accounting year; the statement must include

(A) the total dollar value of revenue received from all sources; and,

(B) total expenditures;

(12) a list of other states where the charitable organization is registered to solicit contributions; and

(13) a statement explaining whether the charitable organization has ever been enjoined or prohibited by a government agency or court in any state or jurisdiction from soliciting contributions.

(b) If the department considers submission of the information necessary to verify information provided on the registration statement or registration renewal statement or to review the charitable organization's compliance with AS 45.68 and this chapter, and on the department's request, the charitable organization shall provide a complete copy of

(1) the most recent Form 990, Form 990-N, Form 990-EZ, Form 990 PF, and Form 990T that the charitable organization filed with the United States Internal Revenue Service, including all schedules and statements; however, a charitable organization that files Form 990 or Form 990-EZ is not required to provide Schedule B in response to a request made under this subsection;

(2) the charitable organization's most recent audited financial statement; and

(3) any contract or written agreement between the charitable organization and any paid solicitor identified in the registration statement or registration renewal statement.

(c) An authorized employee of the charitable organization or member of the organization's governing body must sign the registration statement or registration renewal statement.

(d) The department will not accept a registration statement or registration renewal statement from a charitable organization if

(1) the statement is not complete;

(2) the statement contains material misrepresentations or false information;

(3) the statement is not legible;

(4) an authorized employee of the charitable organization or member of the organization's governing body has not signed the statement; or

(5) the charitable organization has not complied with requirements of AS 45.68.010 or this section.

(e) A charitable organization registration or registration renewal is complete for purposes of AS 45.68.010 on the date the department sends notice to the charitable organization that the registration is complete.

(f) Nothing in this section relieves a charitable organization of the obligation to provide documents to the department under AS 44.23, AS 45.50, AS 45.63, AS 45.68, or another provision of law.

History

Authority: AS 45.68.010; AS 45.68.020; AS 45.68.130
Eff. 3/19/94, Register 129; am 8/6/2006, Register 179; am 3/20/2016, Register 217

9 AAC 12.020 Paid solicitor registration statement

(a) To file a registration statement or registration renewal statement, a paid solicitor must use a registration statement or registration renewal statement on a form or in a format issued by the department. Information provided on the statement must include

(1) the full legal name and federal taxpayer identification number of the paid solicitor;

(2) the paid solicitor's mailing address, physical address, telephone number, facsimile number, electronic mail address, and Internet address;

(3) any additional addresses that the paid solicitor uses to solicit contributions in this state;

(4) the names under which the paid solicitor does business or solicits contributions;

(5) the place where, and the date when, the paid solicitor was established or incorporated, and the type of organization;

(6) the names and addresses of the paid solicitor's owners, officers, directors, and principal employees;

(7) the names, addresses, electronic mail addresses, and telephone numbers of individuals responsible for the activities of the paid solicitor in this state;

(8) a list of other states where the paid solicitor is registered to solicit contributions;

(9) the methods by which the paid solicitor solicits contributions; and

(10) a statement explaining whether

(A) the paid solicitor has ever been enjoined or prohibited by a government agency or court in any state or jurisdiction from soliciting contributions; and

(B) the paid solicitor or any of its owners, officers, directors, or principal employees has ever been convicted of a crime involving charitable solicitations in any state or jurisdiction.

(b) A paid solicitor registration statement must be signed by

(1) the paid solicitor; or

(2) an authorized owner, officer, director, or employee of the paid solicitor, if the paid solicitor is an organization.

(1) the statement is not complete;

(2) the statement contains material misrepresentations or false information;

(3) the statement is not legible;

(4) the statement is not signed by

(A) the paid solicitor; or

(B) an authorized owner, officer, director, or employee of the paid solicitor, if the paid solicitor is an organization; or

(5) the paid solicitor has not complied with requirements of AS 45.68.010 or this section.

(d) A paid solicitor registration or registration renewal is complete for purposes of AS 45.68.010 on the date the department sends notice to the paid solicitor that the registration is complete.

History

Authority: AS 45.68.010; AS 45.68.130
Eff. 3/19/94, Register 129; am 8/6/2006, Register 179; am 3/20/2016, Register 217

9 AAC 12.030 Change of information

A paid solicitor shall file a notice, within seven days, of any change of information required to be provided under 9 AAC 12.020 or change in the sureties, status, or expiration dates of the bond required under 9 AAC 12.060, or any claims or payments made against the bond.

History

Authority: AS 45.68.010; AS 45.68.130
Eff. 3/19/94, Register 129

9 AAC 12.040 Written contract required

A paid solicitor may not solicit contributions on behalf of a charitable organization unless the paid solicitor executes a written contract with the charitable organization, which clearly states the respective obligations of the paid solicitor and the charitable organization. The contract must include the

(1) name of the paid solicitor;

(2) name of the charitable organization;

(3) types of services to be provided by the paid solicitor;

(4) dates those services will begin and end;

(5) script that the paid solicitor will use to solicit contributions;

(6) terms of the agreement between the charitable organization and the paid solicitor relating to

(A) the amount or percentages of amounts to accrue to the charitable organization;

(B) limitations, if any, placed on the maximum amount to be raised by the paid solicitor;

(C) costs of fund-raising that will be the responsibility of the charitable organization, whether paid as a direct expense, deducted from the amounts disbursed, or otherwise; and

(D) the manner in which contributions received directly by the charitable organization, not the result of services provided by the paid solicitor, will be identified and used in computing the fee owed to the paid solicitor; and

(7) signature of an owner or principal officer of the paid solicitor and the president, treasurer, or comparable officer of the charitable organization.

History

Authority: AS 45.68.020; AS 45.68.130
Eff. 3/19/94, Register 129; am 8/6/2006, Register 179

9 AAC 12.050 Contract information as part of registration

(a) A written contract executed between the charitable organization and the paid solicitor which is in effect at the time the paid solicitor files the original registration statement must be submitted to the department along with the registration statement.

(b) Each separate contract must be identified in the paid solicitor's annual registration statement, and a copy of each contract must be provided.

(c) If any new contract is executed before the expiration of a current registration, the paid solicitor shall, within five days, file a copy of the contract with the department.

History

Authority: AS 45.68.010; AS 45.68.020; AS 45.68.130
Eff. 3/19/94, Register 129; am 8/6/2006, Register 179

9 AAC 12.060 Paid solicitor surety bond

(a) A paid solicitor shall file a $10,000 surety bond with the department.

(b) A paid solicitor shall maintain the surety bond for the duration of the period the paid solicitor conducts solicitation activity in the state.

(c) A surety bond required under this section must be on the department's form entitled State of Alaska, Paid Solicitor Surety Bond, as revised as of June 22, 2006 and adopted by reference.

History

Authority: AS 45.68.010; AS 45.68.080; AS 45.68.130
Eff. 3/19/94, Register 129; am 8/6/2006, Register 179

9 AAC 12.065 Paid solicitor financial report

(a) To file a financial report required under AS 45.68.055, a paid solicitor must submit the report on a form or in a format issued by the department. Information provided in the report must include

(1) the name of the paid solicitor as registered with the department;

(2) the name of the charitable organization;

(3) the start and end dates of the fundraising campaign;

(4) the dates covered by the report;

(5) the total gross receipts from residents of this state during the time period covered by the report; and

(6) the distribution of gross receipts from the fundraising campaign in this state during the time period covered by the report, including itemized lists of expenses, commissions and other costs, and the net amount paid to the charitable organization.

(b) The department will not accept a paid solicitor financial report that is not complete, is not signed, is not legible, or does not comply with the requirements of AS 45.68.055 or this section.

History

Authority: AS 45.68.010; AS 45.68.055; AS 45.68.130
Eff. 8/6/2006, Register 179; am 3/20/2016, Register 217

9 AAC 12.070 Membership dues and government grants

In determining whether an organization is exempt from registration under AS 45.68.120(a)(3), the organization may exclude the following:

(1) receipts from membership dues if the organization restricts membership to persons engaged in particular vocation or trade; and

(2) money received in the form of a grant from an agency of a municipal, state or federal government.

History

Authority: AS 45.68.120; AS 45.68.130
Eff. 3/19/94, Register 129

9 AAC 12.080 Registration and renewal fees

(a) For charitable organizations, the fee for each registration or registration renewal statement filed with the department under AS 45.68.010 is $40.

(b) For paid solicitors, the fee for each registration or registration renewal statement filed with the department under AS 45.68.010 is $200.

(c) The department will not accept a registration statement or a registration renewal statement for filing under AS 45.68.010 unless the statement is accompanied by the appropriate registration or registration renewal fee established in this section.

History

Authority: AS 45.68.015; AS 45.68.130
Eff. 9/1/2004, Register 171

9 AAC 12.890 Electronic filing and signatures

A filing required under AS 45.68 or this chapter must be filed electronically in a manner and format that the department prescribes, unless the department waives this requirement because the filer does not have reasonable access to the Internet, or to electronic equipment or software required to make the filing. The department may accept an electronic signature on an electronic record that is filed with the department and that requires a signature under AS 45.68 or this chapter in accordance with AS 09.80.150.

History

Authority: AS 09.80.150; AS 45.68.020; AS 45.68.130 AS 45.68.010; AS 45.68.055
Eff. 3/20/2016, Register 217; am 11/25/2018, Register 228

9 AAC 12.900 Definitions

In this chapter,

(1) "compensation" means salaries, wages, fees, commissions, or any other remuneration or valuable consideration;

(2) "entity" means an individual, organization, group, association, partnership, corporation, agency or unit of state government, or any combination of them.

(3) an "officer or employee" of a charitable organization is one

(A) whose conduct is subject to direct control by that organization;

(B) who does not act in the manner of a paid solicitor in that person's official capacity with the charitable organization; and

History

Authority: AS 45.68.130; AS 45.68.900
Eff. 3/19/94, Register 129

Chapter 14 Telephonic Sellers

9 AAC 14.010 Registration of telephonic sellers

(a) To register, a telephonic seller must file a notice of intent to engage in a telephonic solicitation campaign on a form or in a format issued by the department. Information provided in the notice must include

(1) the telephonic seller's full legal name and the names by which it does business, and the telephonic seller's federal taxpayer identification number;

(2) the telephonic seller's mailing address, physical address, telephone number, facsimile number, electronic mail address, and Internet address;

(3) any additional addresses and telephone numbers from which the telephonic seller will solicit sales;

(4) the form of the telephonic seller's organization and when and where it was incorporated or legally established;

(5) the identity and contact information for the principals, officers, owners, and managers of the telephonic seller;

(6) a detailed description of the goods or services to be offered in the telephonic solicitation campaign;

(7) the mailing address, physical address, telephone number, facsimile number, electronic mail address, and Internet address for any affiliated entity;

(8) the form of the affiliated entity and when and where it was incorporated or legally established;

(9) a list of other states where the telephonic seller is registered to conduct telephonic sales;

(10) a list of states where the telephonic seller's registration to conduct telephonic sales has been denied, suspended, or revoked;

(11) information about criminal convictions, civil judgments, orders, consent decrees, bankruptcy proceedings, and administrative determinations relating to the telephonic seller or its principals, officers, owners, or managers; and

(12) a statement describing how the telephonic seller will comply with AS 45.50.475(a)(2) - (4).

(b) With the notice of intent the telephonic seller must submit documents related to the solicitation campaign as requested by the department, including

(1) the script containing the required representations under AS 45.63.045;

(2) if the telephonic seller does not require its salespeople to use a script,

(A) the outline, materials, or information that the telephonic seller uses or refers to when contacting the buyer; and

(B) a statement describing how the telephonic seller will comply with AS 45.63.045;

(3) a sample of the written contract required under AS 45.63.020, including

(A) the notice of the rights of the buyer under AS 45.63.030(a); and

(B) the information required in 9 AAC 14.040; and

(4) copies of promotional materials associated with the telephonic solicitation campaign.

(c) The principals, owners, officers, managers, or other individuals with similar ownership or supervisory responsibilities must sign the notice of intent, and certify under the penalty of unsworn falsification under AS 11.56.210 that the information provided is true and correct.

(d) The department will not accept a notice of intent from a telephonic seller if

(1) the notice of intent is not complete;

(2) the notice of intent or accompanying documents contain material misrepresentations or false information;

(3) the information provided is not legible;

(4) the appropriate representatives of the telephonic seller have not signed the notice of intent; or

(5) the telephonic seller has not complied with requirements of AS 45.63.010 or this section.

(e) A registration is complete for purposes of AS 45.63.010 on the date the department sends an acknowledgement to the telephonic seller that the telephonic seller has complied with AS 45.63.010.

(f) Nothing in this section relieves a telephonic seller of the obligation to provide documents to the department under AS 44.23, AS 45.50, or another provision of law.

History

Authority: AS 45.63.010; AS 45.63.090
Eff. 3/19/94, Register 129; am 3/20/2016, Register 217

9 AAC 14.020 Change in information

If, before the expiration of a telephonic seller's annual registration period, there is a material change in the information required by 9 AAC 14.010, the telephonic seller shall, within 10 days, file an addendum updating the information with the department. Changes in salespersons soliciting on behalf of a telephonic seller, or salespersons previously listed who no longer solicit on behalf of the telephonic seller, must be updated by addendum every 90 days after the telephonic seller registration form is filed. The addendum for salespersons must include the same information required on the telephonic seller's registration form. An addendum must be submitted in the form of an affidavit setting out the relevant changes of information and must be attached to a copy of the telephonic seller's registration form it is amending.

History

Authority: AS 45.63.010; AS 45.63.090
Eff. 3/19/94, Register 129

9 AAC 14.030 Confirmation of information

Repealed.

History

Eff. 3/19/94, Register 129; repealed 3/20/2016, Register 217

9 AAC 14.040 Information to be provided each prospective buyer

Each telephonic seller shall, in the written contract required under AS 45.63.020, provide the following information to each prospective buyer:

(1) if the telephonic seller represents or implies that a prospective buyer will receive, without charge, an item or items in addition to the primary item for sale, whether the items are denominated as gifts, premiums, bonuses, prizes, or otherwise, the telephonic seller shall provide the following:

(A) the actual physical address of the location from which the telephonic seller is soliciting the prospective buyer and, if different, the complete street address of the telephonic seller's principal location;

(B) the total number of individuals who have actually received from the telephonic seller, during the preceding 12 months, or if the telephonic seller has not been in business that long, during the period the telephonic seller has been in business, the described items;

(D) all terms and conditions the prospective buyer must meet to obtain the items;

(E) the actual market value of the items, with an explanation of the basis for the valuation, together with a statement of the price paid by the telephonic seller for the items; and

(F) a statement of the manner in which the telephonic seller decides which items the prospective buyer will receive;

(2) if the telephonic seller is offering to sell any metal, stone, or mineral, the telephonic seller shall provide the following information:

(A) the actual physical address from which the telephonic seller is soliciting the prospective buyer and, if different, the complete street address of the telephonic seller's principal location; and

(B) the name, address and telephone number of each of the telephonic seller's suppliers and a description of each metal, stone, or mineral to be purchased; and

(C) a complete disclosure of the terms and conditions the prospective buyer must meet to take actual physical possession of the metal, stone, or mineral.

(3) if the telephonic seller is offering to sell an interest in oil, gas, or mineral fields, wells, or exploration sites, the telephonic seller shall provide the following information:

(A) the complete street address of the location from which the telephonic seller is soliciting the prospective buyer and, if different, the complete street address of the telephonic seller's principal location;

(B) a complete disclosure of the telephonic seller's interest in the property;

(D) documents supporting any claims made by the telephonic seller that the oil, gas, or mineral field, well, or exploration site has a particular return potential, or that it has been investigated and found to have a potential for return on investment.

(4) if the telephonic seller represents that office equipment or supplies being offered are offered at prices which are below those usually charged for those items, the telephonic seller shall provide the following information:

(B) the name of the manufacturer of each of the items the telephonic seller has represented for sale and in which the prospective buyer expresses interest.

(5) if the telephonic seller represents that advertising in the "yellow pages" or any directory is being offered for sale at prices which are below those usually charged for those items, the telephonic seller shall provide the following information:

(A) the complete street address of the location from which the telephonic seller is soliciting the prospective buyer, and if different, the complete street address of the telephonic seller's principal location; and

(B) the name of the publisher, how many times the publication has been issued in separate editions, how many copies have been printed, where it has been distributed, and if the publication has ever been distributed in this state by the publisher.

History

Authority: AS 45.63.010; AS 45.63.020; AS 45.63.090
Eff. 3/19/94, Register 129

9 AAC 14.050 Affiliated entities

If a telephonic seller is conducting a solicitation campaign for an affiliated entity, the telephonic seller is exempt to the same extent under AS 45.63.080 as the affiliated entity would be if the affiliated entity were directly conducting the solicitation campaign.

History

Authority: AS 45.63.080; AS 45.63.090
Eff. 3/19/94, Register 129; am 3/20/2016, Register 217

9 AAC 14.060 Registration fee

(a) The fee to register under AS 45.63.010 as a telephone seller is $200.

(b) The department will not accept a registration filing under AS 45.63.010(b) unless the filing is accompanied by the registration fee established in (a) of this section.

History

Authority: AS 45.63.015; AS 45.63.090
Eff. 9/1/2004, Register 171

9 AAC 14.890 Electronic filing and signatures

A filing required under AS 45.63 or this chapter may be filed electronically in a manner and format that the department prescribes, if the department makes electronic filing available. The department may accept an electronic signature on an electronic record that is filed with the department and that requires a signature under AS 45.63 or this chapter in accordance with AS 09.80.150.

History

Authority: AS 09.80.150; AS 45.63.010; AS 45.63.090
Eff. 3/20/2016, Register 217

9 AAC 14.900 Definitions

(a) In this chapter,

(1) "affiliated entity" means any individual or entity that will engage or attempt to engage in transactions with buyers relating to the telephonic solicitation campaign, or that is responsible for the acts or statements made by the telephonic seller relating to the telephonic solicitation campaign;

(2) "owner" means a person who owns or controls 10 percent or more of the net income of a telephonic seller;

(3) repealed 3/20/2016;

(4) the term "sound recording" in AS 45.63.080(10) includes video recordings when the video recording has an audio component;

(5) "telephonic seller" has the meaning given "telephone seller" in AS 45.63.100.

(b) In AS 45.63 and this chapter, the sale of "property or services" does not include a transaction

(1) when the only consideration for the money spent by the buyer is participation in a telephone conversation;

(2) initiated by a written communication addressed to "boxholder," "occupant," "resident," or similar generic description of the intended recipient and no individual person, institution, or business organization is named anywhere in the written communication in a manner that identifies the individual person, institution or business enterprise as the intended recipient; or

(3) initiated by a communication in newspapers, magazines, and other publications unless they are directed to one or more persons, institutions, or business organizations by name, specifically advising, requesting, motivating, or otherwise encouraging that specific person, institution, or business organization to contact the seller by telephonic means.

History

Authority: AS 45.63.010; AS 45.63.090; AS 45.63.100
Eff. 3/19/94, Register 129; am 3/20/2016, Register 217

Chapter 16 Sale of Business Opportunities

9 AAC 16.010 Registration

(a) An initial registration and any renewal of that registration must be

(1) submitted using the department's form entitled Alaska Business Opportunity Registration and Registration Renewal Application, as revised as of February 9, 2005 and adopted by reference; and

(2) made under penalty of unsworn falsification in violation of AS 11.56.210.

(b) Unless the department issues an order under AS 45.66.200(b) denying registration or registration renewal, a registration or registration renewal is complete for purposes of AS 45.66.010 on the date that the person seeking registration receives the department acknowledgment required under AS 45.66.020(c). The department will send the acknowledgment to the seller's mailing address identified in the form submitted under (a) of this section.

History

Authority: AS 45.66.010; AS 45.66.030; AS 45.66.240 AS 45.66.020; AS 45.66.200
Eff. 3/23/2005, Register 173

9 AAC 16.020 Disclosure statement

(a) A seller must file with the department a completed disclosure statement on the department's form entitled Alaska Business Opportunity Disclosure Statement, as revised as of February 9, 2005 and adopted by reference.

(b) The disclosure statement must have a cover sheet that contains all of the following information, and no other information:

(1) a title, in not less than 12-point, uppercase, bold typeface, "DISCLOSURES REQUIRED BY ALASKA LAW" ;

(2) underneath the title, the following statement, in at least 12-point, uppercase, bold typeface:

"NOTICE TO BUYERS:

UNDER ALASKA LAW, A PERSON WHO SELLS A BUSINESS OPPORTUNITY MUST REGISTER WITH THE STATE OF ALASKA'S DEPARTMENT OF LAW. REGISTRATION DOES NOT MEAN THAT THE STATE RECOMMENDS OR APPROVES THE BUSINESS OPPORTUNITY.

THE SELLER OF THE BUSINESS OPPORTUNITY IS REQUIRED TO GIVE YOU A DISCLOSURE STATEMENT. THIS DISCLOSURE STATEMENT CONTAINS IMPORTANT INFORMATION ABOUT THE BUSINESS OPPORTUNITY AND THE PERSON SELLING IT. YOU SHOULD READ IT CAREFULLY.

THE SELLER MUST GIVE THIS DISCLOSURE STATEMENT TO YOU AT LEAST 10 CALENDAR DAYS BEFORE YOU SIGN A CONTRACT OR MAKE A PAYMENT. IF YOU HAVE ANY QUESTIONS OR CONCERNS ABOUT THIS INVESTMENT, YOU SHOULD TALK WITH AN ATTORNEY OR FINANCIAL ADVISOR BEFORE YOU SIGN A CONTRACT, OR CONTACT THE DEPARTMENT OF LAW FOR ADDITIONAL INFORMATION ABOUT THE BUSINESS OPPORTUNITY."

(3) the seller's name, the seller's principal business address, and the date the disclosure statement is given to the buyer or potential buyer; the information required in this paragraph must be provided conspicuously on the cover sheet.

History

Authority: AS 45.66.020; AS 45.66.080; AS 45.66.240
Eff. 3/23/2005, Register 173

9 AAC 16.030 Surety bond

(a) A seller must submit to the department a surety bond in the amount of $75,000 in favor of the state for the benefit of any buyer who is damaged by the breach of contract between the seller and buyer, by the breach of any obligation arising from that contract, or by the violation of a requirement in AS 45.66 or this chapter. The department may require a seller to file reports of all sales in the state to determine whether an increase in the amount of the bond is necessary to protect the public interest.

(b) The seller shall maintain the surety bond for the duration of the period the seller is selling or offering to sell business opportunities in the state and for a period of three years after the date of the last sale of a business opportunity in the state.

(c) A surety bond required under this section must use the department's form entitled Alaska Business Opportunity Bond, as revised as of February 9, 2005 and adopted by reference.

History

Authority: AS 45.66.020; AS 45.66.060; AS 45.66.240
Eff. 3/23/2005, Register 173

9 AAC 16.040 Written contract required

(a) The seller shall include in a contract or agreement provided to a buyer or prospective buyer the information required under AS 45.66.090 and this section. The information must be set out in at least 12-point typeface.

(b) In the contract or agreement, the seller shall include a detailed description of the business opportunity being offered.

(1) any down payment required under the contract;

(2) any initial payment required under the contract;

(3) any additional payment required under the contract; and

(4) a statement that if the contract requires a buyer to pay as a down payment more than 20 percent of the initial payment before delivery to the buyer of the equipment, supplies, products, or services to be furnished under the terms of the contract, the excess above the 20 percent must be placed in an escrow account that meets the requirements of AS 45.66.110; the contract must clearly state the name and address of the financial institution where the escrow account is located and the escrow account number.

(d) In the contract or agreement, the seller shall include the name, mailing address, physical address, and telephone number of

(1) the seller;

(2) each of the seller's agents in the state;

(3) each of the seller's representatives in the state; and

(4) each supplier of products, equipment, or supplies that the seller is to deliver to the buyer.

(e) In addition to providing, under AS 45.66.090(b)(3), a statement of the form of the seller's business organization, the contract must identify the state where the seller is incorporated or organized.

(f) In providing, under AS 45.66.090(b)(5), the delivery date of the product, equipment, or supplies being sold or leased, a contract that provides for the periodic delivery of items to the buyer must provide each expected delivery date of the products, equipment, or supplies that the seller is to deliver to the buyer.

(g) To comply with AS 45.66.090(b)(7), the seller must include in the contract the following statement, conspicuously placed, and in no less than 12-point bold typeface:

STATEMENT OF BUYER'S RIGHT TO CANCEL

Under Alaska law, a buyer of a business opportunity may cancel a contract for any reason if the buyer gives notice of the cancellation to the seller within thirty (30) days after signing the contract.
A buyer may cancel the contract at any time if the seller engages in any of the following conduct:

(a) fails to comply with the disclosure requirements under AS 45.66.080 or fails to provide a written purchase contract under AS 45.66.090;

(b) uses untrue, misleading, incomplete, or deceptive statements in any aspect of advertising, promoting, selling, or offering a business opportunity;

(c) fails, within 30 days after the delivery date specified in the contract, to deliver the products, equipment, supplies, or services required under the contract in order to begin substantial operation of the business opportunity;

(d) fails to provide a location for the business to be started under the contract if the contract requires the seller to provide a location.

A notice of cancellation does not have to be on a particular form, but it must be in writing and state the buyer's intention to end the contract.
Within 15 days after the notice of cancellation, the seller shall refund to the buyer all payments made and terminate all financial obligations of the buyer. Within 5 days after receiving the refund, the buyer must make available to the seller, at a reasonable time and place, any products, equipment, or supplies delivered by the seller.

History

Authority: AS 45.66.090; AS 45.66.240
Eff. 3/23/2005, Register 173

9 AAC 16.050 Fees

The seller must pay a registration fee of $300. To renew a registration the seller must pay a registration renewal fee of $150. Fees must be paid by cashier's check or money order, payable to the State of Alaska.

History

Authority: AS 45.66.020; AS 45.66.040 AS 45.66.030; AS 45.66.240
Eff. 3/23/2005, Register 173

9 AAC 16.060 Change in information

(a) Any statement required under AS 45.66.050 for a material change in information must be

(1) submitted using the department's form entitled Alaska Business Opportunity Notice of Material Change in Information, as revised as of February 9, 2005 and adopted by reference; and

(2) made under penalty of unsworn falsification in violation of AS 11.56.210.

(b) To be timely filed, the statement required under AS 45.66.050 must be

(1) hand delivered to the department's Anchorage office within 10 days after the material change; or

(2) sent by certified mail, return receipt requested, to the department's Anchorage office within 10 days after the material change.

(c) The department will consider a change in information provided under AS 45.66.020 or 45.66.030 to be a material change if a substantial likelihood exists that a reasonable prospective buyer would consider the change significant in making a decision to purchase the business opportunity. Material changes include

(1) a change in the surety or in the status or expiration date of the bond required under AS 45.66.060;

(2) an increase or decrease in the initial payment or additional payments charged by the seller;

(3) a change in the seller's management or in the owner of the seller;

(4) a change in the seller's or buyer's obligations under the contract or related agreements;

(5) the initiation of, or a significant change in the status of, a civil, criminal, or administrative action or proceeding in which the seller, the seller's agent, or the seller's representative is a party, and involving a charge or allegation set out in AS 45.66.020(b)(3); for purposes of this paragraph,

(A) the initiation of a civil, criminal, or administrative action or proceeding includes the filing of a complaint or indictment; and

(B) a significant change in the status of a civil, criminal, or administrative action or proceeding includes entry of a judgment or order relating to any business opportunity offered by the seller, the seller's agent, or the seller's representative.

History

Authority: AS 45.66.050; AS 45.66.240
Eff. 3/23/2005, Register 173

9 AAC 16.900 Definitions

In AS 45.66 and this chapter, unless the context requires otherwise,

(1) "affiliated company" means a business entity that

(A) will engage in business transactions with buyers relating to the sale of a business opportunity; or

(B) accepts responsibility for the acts or statements made by the seller relating to sales or offers to sell business opportunities;

(2) "department" means the Department of Law;

(3) "down payment" has the meaning given in AS 45.66.100;

(4) "initial payment" has the meaning given in AS 45.66.100;

(5) "owner" means a person who owns or controls 10 percent or more of the net income of a business entity;

(6) "parent company" means a business entity that

(A) is an owner of the seller; and

(B) has authority to control the employment or appointment of officers, directors, or managers of the seller.

History

Authority: AS 45.66.080; AS 45.66.240
Eff. 3/23/2005, Register 173

Chapter 23 Physician Negotiations

9 AAC 23.010 Applicability

Nothing in this chapter authorizes the attorney general to review or allow the collective negotiation of fee-related terms of contracts with health benefit plans.

History

Authority: AS 23.50.010; AS 23.50.040
Eff. 6/29/2003, Register 166

9 AAC 23.020 Negotiation request requirements

(a) Before each collective negotiation under this chapter, an authorized third party must submit to the attorney general a written request containing the information required by this section, along with the fee required by 9 AAC 23.030. The authorized third party must submit one original and one copy of each request to the Anchorage office of the attorney general.

(b) In a negotiation request, the authorized third party must include the following information, and must group and label the information by paragraph:

(1) information about the authorized third party, including the name, title, business address, and telephone number of the authorized third party and a description of

(A) the authorized third party's occupation, professional training, credentials and licenses, and experience in the health care field;

(B) the contracts for services to be performed by the authorized third party in connection with AS 23.50 and this chapter, including any compensation arrangements;

(C) the legal and business relationships between the authorized third party and the participating physicians, including any other contracting services provided by the authorized third party for any participating physician;

(D) the authorized third party's pecuniary interest, if any, in the contracts to be negotiated under AS 23.50 and this chapter; and

(E) any other physician groups the authorized third party has represented, is representing, or currently plans to represent;

(2) information about the negotiation group as follows:

(A) a complete list of the physicians represented, including the physical address of each physician's primary place of business;

(B) a description of each participating physician's specialties, primary practice areas, clinic affiliations, and active hospital staff privileges;

(C) a description of each independent practice association (IPA) to which each participating physician belongs, including the group's name, business address, type of legal organization, and approximate number of physician members;

(D) for each health benefit plan for which collective negotiations are proposed, a statement about whether any participating physician has contracted to be a provider for that health benefit plan through any IPA, and, if so, a statement that indicates which IPA is a party to that contract;

(E) a description of the type of legal organization, if any, of the negotiation group;

(F) for each health benefit plan for which collective negotiations are proposed, a representative copy of the most recent contract with the health benefit plan;

(G) a description of the geographic service area in which the negotiation group provides services, including a percentage estimate of the market share held by the negotiation group;

(H) a description of the different specialties in the geographic service area identified in (G) of this paragraph, and a listing of physicians who compete with the participating physicians in the geographic service area; if the participating physicians have multiple specialties, this information must be provided separately for each specialty;

(3) the name of each health benefit plan that the authorized third party will contact, including the name and phone number of the contact person of the health benefit plan;

(4) a plan of operation for the authorized third party; the plan of operation must include a procedure to manage communications between the authorized third party and the health benefit plans, between the authorized third party and the participating physicians, and among the participating physicians; the procedure must limit communications to matters, terms, and conditions that are not fee-related;

(5) a procedure to ensure that the health benefit plans remain free to contract with, or offer different contract terms and conditions to, individual competing physicians;

(6) a summary of the procedures that the authorized third party will use to ensure compliance with AS 23.50.020;

(7) a brief report that identifies the proposed subject matter of the collective negotiations with a health benefit plan; the report must include

(A) the specific contract terms and conditions to be negotiated;

(B) the proposed time line of the negotiations;

(D) the expected impact of the negotiations on competition;

(E) the expected impact of the negotiations on consumers;

(F) the benefits of a contract between the identified health benefit plan and physicians; and

(G) an explanation of the efficiencies or benefits expected to be achieved by the negotiations;

(8) a copy of each communication proposed to be sent to the health benefit plan.

(c) The authorized third party must sign each negotiation request submitted under this section. Copies of relevant supporting documents must be included. If the request contains data from a source other than the authorized third party or participating physicians, the source of the data must be identified, if any of the information required by (b) of this section is unavailable, the request must include an explanation of the efforts made to obtain the information, and must identify the sources from which the information was sought. If the participating physicians are contractually prohibited from disclosing requested information, the request must identify the information or documents subject to nondisclosure terms and the contract terms that prohibit disclosure.

(d) The attorney general will determine whether a negotiation request is complete. A negotiation request will not be considered filed until the attorney general receives a completed application and application fee in accordance with this section and 9 AAC 23.030. The attorney general will return an incomplete or unorganized application to the authorized third party and identify any deficiencies.

(e) An authorized third party may withdraw an application at any time by submitting a written notice of withdrawal to the attorney general.

History

Authority: AS 23.50.020; AS 23.50.040
Eff. 6/29/2003, Register 166

9 AAC 23.030 Fees

Along with a negotiation request submitted under 9 AAC 23.020, an authorized third party must submit a fee of $2,500. The fee is non-refundable, and must be made by cashier's check or money order, payable to the Office of the Attorney General, State of Alaska.

History

Authority: AS 23.50.030
Eff. 6/29/2003, Register 166

9 AAC 23.040 Communication with attorney general during negotiation process

(a) After the attorney general approves the negotiation request under AS 23.50.020(d) and 9 AAC 23.020, the authorized third party shall provide to the attorney general the information required in AS 23.50.020(d)(4), and a copy of all written communications that pertain to the negotiations, including communications between the

(1) authorized third party and the health benefit plan;

(2) authorized third party and the participating physicians; and

(3) health benefit plan and the participating physicians.

(b) The authorized third party shall provide a brief summary of the status of negotiations to the attorney general every 30 days until a proposed contract is reached or the negotiations are otherwise terminated. The status summary must include a description of the areas or terms agreed upon, the areas or terms of continuing disagreement, and any modification of the scope of the subject matter under discussion.

(c) The authorized third party shall notify the attorney general if negotiations have been declined by the health benefit plan, or if the health benefit plan has refused to respond to a request to negotiate. Notice must be given promptly, but no later than 14 days after the authorized third party has sufficient information to confirm the health benefit plan's declination or refusal.

History

Authority: AS 23.50.020; AS 23.50.040
Eff. 6/29/2003, Register 166

9 AAC 23.050 Review of proposed contracts

(a) A contract that is reached as a result of collective negotiations must be submitted to the attorney general for review and approval in accordance with AS 23.50.020(e) and (f) before the contract is effective.

(b) The authorized third party shall submit to the attorney general, along with the proposed contract, a report that explains how the contract is consistent with AS 23.50, and how the contract

(1) restores or maintains the competitive balance in the market for health care services;

(2) protects access to health care services;

(3) promotes the health care infrastructure and medical advancement; and

(4) improves communications between health care providers and health benefit plans.

History

Authority: AS 23.50.020; AS 23.50.040
Eff. 6/29/2003, Register 166

9 AAC 23.060 Remedial measures

(a) Within 90 days after receiving from the attorney general a written disapproval of a negotiation request or proposed contract, an authorized third party may re-submit the request or proposed contract for approval along with a report

(1) documenting the specific remedial measures that have been taken; and

(2) demonstrating how those remedial measures will address the concerns of the attorney general.

(b) Within 30 days after receiving a re-submission under (a) of this section, the attorney general will review the revised submission and either approve or disapprove it after considering the requirements of AS 23.50 and this chapter.

History

Authority: AS 23.50.020; AS 23.50.040
Eff. 6/29/2003, Register 166

9 AAC 23.070 Resuming collective negotiations after a failed negotiation

(a) After the authorized third party has reported a failed collective negotiation attempt in accordance with AS 23.50.020(d)(2) and 9 AAC 23.040(c), the authorized third party and participating physicians may not engage in collective negotiations or communications with a health benefit plan except as provided in this section.

(b) The negotiation group, through its authorized third party, may resume negotiations within no more than 60 days after reporting a failed collective negotiation attempt if the authorized third party provides the attorney general notice of its intent to resume negotiations at least seven days before the resumption date. Subsequent negotiations may not deviate from the terms of the original request for negotiation as approved by the attorney general or from any requirements prescribed in the attorney general's written approval.

(c) To resume negotiations later than 60 days after reporting a failed collective negotiation attempt, the authorized third party must submit a new request for negotiation and fee in accordance with 9 AAC 23.020 and 9 AAC 23.030.

(d) The attorney general will presume collective negotiations under AS 23.50 and this chapter to have failed if a proposed contract is not submitted to the attorney general within 12 months after approval of a collective negotiation request.

History

Authority: AS 23.50.020; AS 23.50.040
Eff. 6/29/2003, Register 166

9 AAC 23.080 Collective negotiations to modify an approved contract

During the original term of a contract approved under AS 23.50.020 and 9 AAC 23.050, an authorized third party may engage in collective negotiations or communications with a health benefit plan for the purpose of modifying the contract terms. No later than 14 days before starting those collective negotiations, the authorized third party shall provide the attorney general written notice of its intention to negotiate. The notice must be accompanied by a report explaining the purpose of the negotiations and the terms to be modified. The negotiations must not deviate from the original request for negotiation made by the authorized third party.

History

Authority: AS 23.50.020; AS 23.50.040
Eff. 6/29/2003, Register 166

9 AAC 23.090 Prohibited conduct

Physicians may not engage in a boycott, intimidation, or coercive conduct related to proposed collective negotiations, or to the subject matter of those negotiations.

History

Authority: AS 23.50.020; AS 23.50.040
Eff. 6/29/2003, Register 166

9 AAC 23.100 Letter of intent to negotiate

(a) Before engaging in collective negotiations with a health benefit plan, an authorized third party may send a letter of intent to a health benefit plan notifying it that a negotiation group desires to engage in collective negotiations with the plan, and including a list of the proposed subjects to be negotiated. In the letter of intent, the authorized third party may inquire as to the intent of the health benefit plan to enter collective negotiations with the negotiation group. If the authorized third party has not received a response from the health benefit plan to the letter of intent within 60 days after mailing, the health benefit plan is presumed to have declined to enter negotiations.

(b) A letter of intent under this section may be sent before submitting to the attorney general a request under 9 AAC 23.020, if the letter of intent includes a clear statement that

(1) approval to engage in the proposed negotiations has not been obtained from the attorney general; and

(2) any collective negotiations

(A) are contingent on the attorney general's approval; and

(B) must be conducted in accordance with AS 23.50.

History

Authority: AS 23.50.040
Eff. 6/29/2003, Register 166

9 AAC 23.900 Definitions

In this chapter, unless the context requires otherwise,

(1) "authorized third party" has the meaning given in AS 23.50.099;

(2) "fee-related term" means a term that relates to the fees charged, collected, reimbursed, or billed by a physician or health benefit plan; "fee-related term" includes a term or condition with a direct or indirect impact on a fee-related term;

(3) "geographic service area" has the meaning given in AS 23.50.020(o);

(4) "health benefit plan" has the meaning given in AS 23.50.099;

(5) "independent practice association" or "IPA" means a group or association of physicians, including one or more participating physicians, who

(A) are clinically integrated;

(B) share substantial financial risk; or

(6) "negotiation group" means a group of participating physicians that under AS 23.50 and this chapter is seeking, has sought, or has obtained the approval of the attorney general to engage in communications with competitors or to engage in collective negotiations with a health benefit plan;

(7) "participating physician" means a physician who is a member of a negotiation group;

(8) "physician" means an individual licensed under AS 08.64;

(9) "provider" has the meaning given in AS 21.36.090(d).

History

Authority: AS 23.50.020; AS 23.50.040
Eff. 6/29/2003, Register 166

Chapter 33 Actionable Claims Against State Employees

9 AAC 33.010 Notice to attorney general of claim

(a) A state employee who is named as a defendant in a civil action or proceeding for money damages as a result of state employment shall deliver all of the papers served upon the employee, or copies of them, as provided in AS 09.50.253 no later than seven calendar days after receipt.

(b) Delivery to the attorney general must be to both the Juneau and Anchorage offices of the attorney general and may be made only by personal delivery or facsimile transmission. Delivery is complete on the date of receipt in the offices of the attorney general.

History

Authority: AS 09.50.253
Eff. 3/23/2005, Register 173

9 AAC 33.020 Certification

After determining whether to certify that the act or omission on which the civil action or proceeding is based was in the scope of the state employee's office or employment as provided in AS 09.50.253, the attorney general will notify the employee.

History

Authority: AS 09.50.253
Eff. 3/23/2005, Register 173

Chapter 52 Executive Branch Code of Ethics

9 AAC 52.010 Appearance of impropriety

An appearance of impropriety does not establish that an ethical violation exists.

History

Authority: AS 39.52.110; AS 39.52.950
Eff. 4/24/94, Register 130

9 AAC 52.020 Improper motivation

A public officer may not take or withhold official action on a matter if the action is based on an improper motivation.

History

Authority: AS 39.52.110; AS 39.52.950
Eff. 4/24/94, Register 130

9 AAC 52.030 When membership is significant

(a) If a public officer is required by statute to be a member of a class and the public officer takes or withholds official action in a matter that affects all members of that class, the action is not a violation of the Ethics Act or this chapter unless the officer receives significant financial or personal benefit from the action or takes or withholds the action based on an improper motivation.

(b) A public officer's interest in a matter by reason of the officer's membership in a large organization or class is significant if the officer or an immediate family member of the officer has a significant personal or financial interest in the matter.

History

Authority: AS 39.52.110; AS 39.52.950
Eff. 4/24/94, Register 130

9 AAC 52.035 Personal gain

For purposes of AS 39.52.120(a), gain is personal gain if it is

(1) a benefit to the public officer's personal interest or financial interest; or

(2) actual or anticipated gain, benefit, profit, or compensation to the public officer or the officer's immediate family member.

History

Authority: AS 39.52.120; AS 39.52.950
Eff. 12/22/2010, Register 196

9 AAC 52.040 Unwarranted benefits or treatment

(a) As used in AS 39.52.120(a), "unwarranted benefits or treatment" includes

(1) a deviation from normal procedures for the award of a benefit, regardless of whether the procedures were established formally or informally, if the deviation is based on the improper motivation; and

(2) an award of a benefit if the person receiving the benefit was substantially less qualified, in light of the formal or informal standards set out for the award, than another person who was or reasonably should have been considered for the award if the award is based on an improper motivation.

(b) A public officer may not grant or secure an unwarranted benefit or treatment, regardless of whether the result is in the best interest of the state.

(c) Subject to the requirements of AS 39.52.110, 39.52.120, 39.52.150, and AS 39.90.020, neither the Ethics Act nor this chapter prohibits a public officer from

(1) considering a person who has a relationship with an officer for a state contract or job if the person is considered on an equal basis with other applicants; or

(2) considering an individual's political affiliation or political support in determining whether to appoint the individual to a state board or commission or to hire the individual for an exempt or partially exempt state job.

(3) accepting money to reimburse the public officer for reasonable expenses incurred for professional legal services to defend against a complaint brought under AS 39.52.310 - 39.52.390, if

(A) the public officer is exonerated of a violation of the Ethics Act for which payment is made;

(B) the complaint concerns conduct that occurred during the public officer's employment or service as a public officer;

(C) the public officer executes a written agreement to repay any money requested and paid in advance of exoneration if the public officer is not exonerated of the violation; and

(D) the public officer repays any money paid in advance if the public officer is not exonerated of the violation; or

(4) approving money to reimburse another public officer for reasonable expenses incurred for professional legal services to defend against a complaint brought under AS 39.52.310 - 39.52.390, entering into an agreement to pay those expenses on behalf of another public officer, or authorizing payment to secure those professional legal services on behalf of another public officer, if

(A) the complaint concerns conduct that occurred during the public officer's employment or service as a public officer;

(B) the payment is made by a state agency that has money appropriated that may be lawfully used for the purpose of paying the expenses; and

(i) has been exonerated of a violation of the Ethics Act for which payment is made; or

(ii) has executed a written agreement to repay any money paid in advance of exoneration, if the public officer is not exonerated of the violation.

(d) For purposes of (c)(3) and (4) of this section,

(1) exoneration of a violation of the Ethics Act

(A) occurs when an allegation in a complaint brought against a public officer under AS 39.52.310 - 39.52.390 is

(i) dismissed under AS 39.52.310(d), 39.52.320, or 39.52.370(d);

(ii) resolved with only preventive action recommended under AS 39.52.330 to avoid a potential violation; or

(iii) dismissed after appeal under AS 39.52.370(f); and

(B) does not include the dismissal or resolution of an allegation in a complaint when corrective action is required under AS 39.52.330;

(2) expenses are reasonable if, based on an evaluation of the complexity of the alleged claim, the attorney's fee or hourly rate, the hours expended, the relationship between the amount of work performed and the significance of the alleged claim, and other relevant factors, the expenses were necessarily incurred to defend against an allegation in a complaint brought under AS 39.52.310 - 39.52.390; those expenses may

(A) include attorney's fees, fees incurred for professional legal services customarily performed by an attorney but delegated to and performed by an investigator, paralegal, or law clerk, and related costs; and

(B) be apportioned by alleged violation if a complaint alleges more than one violation, but only if the public officer provides clear documentation that the expenses paid were limited to the alleged violation for which the public officer is exonerated; and

(3) payment under this section may be made to or on behalf of a current public officer or a former public officer who was the subject of a pending complaint when the officer left state service or becomes the subject of a complaint after leaving state service.

History

Authority: AS 39.52.120; AS 39.52.950
Eff. 4/24/94, Register 130; am 12/22/2010, Register 196

9 AAC 52.045 Transportation of family members of governor and lieutenant governor

(a) The use or authorization of use of state money or other state resources for transportation of a family member of the governor or lieutenant governor does not violate AS 39.52.120(a) or (b)(3) if transportation is provided to an event at which the family member's presence benefits the state. The presence of a family member of the governor or lieutenant governor benefits the state if the family member's presence

(1) is required for official action of the state; or

(2) has a public purpose related to the governor's or lieutenant governor's official duties, including

(A) attending a state-sponsored event that the family of the governor or lieutenant governor customarily attends;

(B) attending an event at which the family member serves as an officially designated representative of the state; or

(C) accompanying, as an invited guest, the governor or lieutenant governor to an event related to issues important to the state when the family member's attendance is appropriate for the event, such as youth- or family-related events.

(b) For purposes of AS 39.52.120(a) and (b)(3) and (a) of this section, transportation of a family member to attend a political or campaign event held for partisan political purposes does not benefit the state.

(c) For purposes of AS 39.52. 120(a) and (b)(3), the use or authorization of use of state money or other state resources for transportation of a family member that does not benefit the state is presumed insignificant if the governor or lieutenant governor pays the state the cost of the family member's transportation. Except for transportation by state aircraft for partisan political purposes under AS 39.52.120(f), the agency that authorized or paid for the travel shall determine the cost of the transportation based on either

(1) the actual fare paid; or

(2) the fare for equivalent commercial transportation, if the travel was by state aircraft, vessel, or vehicle.

(d) in this section,

(1) "child" has the meaning given in AS 39.52.960;

(2) "family member" means a spouse or minor child of the governor or lieutenant governor;

(3) "for partisan political purposes" has the meaning given in AS 39.52.120(b)(6).

History

Authority: AS 39.52.120; AS 39.52.950
Eff. 12/22/2010, Register 196

9 AAC 52.050 Use of state time, property, equipment, or other facilities

(a) Unless the attorney general has issued a general opinion against the use or advised the public officer against the use, a public officer who uses state time, property, equipment, or other facilities to benefit the officer, an immediate family member of the officer, the officer's personal or financial interest, or another person does not violate AS 39.52.120(a) or (b)(3) if the officer's designated supervisor determines that the use is insignificant.

(b) For purposes of determining whether a public officer has violated AS 39.52.120(a) or (b)(3), the use of a state cellular telephone to benefit the officer, an immediate family member of the officer, the officer's personal or financial interest, or another person is presumed insignificant if

(1) the cellular telephone service plan provides, for a set monthly fee, an allowance of usable minutes or an unlimited number of usable minutes;

(2) the use does not exceed

(A) the greater of 30 minutes or five percent of the allowed minutes under the applicable service plan per month, for a plan that provides an allowance of usable minutes;

(B) the greater of 30 minutes or five percent of the total minutes used in a month under the applicable service plan, for a plan that provides an unlimited number of usable minutes; and

(3) the public officer reimburses the state in full for use that results in a separate charge; charges for minutes exceeding an allowance of usable minutes are presumed to have been incurred to benefit the officer, an immediate family member of the officer, the officer's personal or financial interest, or another person.

(c) For purposes of determining whether a public officer has violated AS 39.52.120(a) or (b)(3), the use of a portable state computer to benefit the officer, an immediate family member of the officer, the officer's personal or financial interest, or another person is presumed insignificant if the use

(1) is for electronic mail communications, Internet access, or entertainment;

(2) does not occur during scheduled work hours; and

(3) occurs at no cost to the state.

(d) For purposes of determining whether a public officer has violated AS 39.52.120(a) or (b)(3), the use of a state personal digital assistant to benefit the officer, an immediate family member of the officer, the officer's personal or financial interest, or another person is presumed insignificant if, when the device is used as a

(1) cellular telephone, the use complies with (b) of this section;

(2) computer, the use complies with (c) of this section.

(e) Nothing in this section exempts a public officer from compliance with other state requirements applicable to state computing and information technology resources.

History

Authority: AS 39.52.110; AS 39.52.120; AS 39.52.950
Eff. 4/24/94, Register 130; am 12/22/2010, Register 196

9 AAC 52.060 Gifts

(a) As used in the Ethics Act and this chapter, a gift is a transfer or loan of property or provision of services to a public officer for less than full value. Unless rebutted by other evidence, an occasional gift worth $50 or less is presumed not to be given under circumstances in which it could be reasonably inferred that the gift is intended to influence an officer's performance of official duties, actions, or judgment.

(b) For purposes of AS 39.52.130, travel or lodging of any value received by a public officer in connection with a trip that the public officer takes as part of the officer's official duties is not an improper gift if the monetary value of the travel or lodging is comparable to the cost that the state would have had to pay for the travel or lodging and

(1) the head of the officer's agency determines that the gift is to the state, not to the officer; or

(2) the travel or lodging is incidental transportation by or hospitality at the residence of an individual.

(c) An offer to a state agency by a person or governmental agency other than the state to pay travel expenses for one or more public officers to carry out official responsibilities does not result in a gift to the individual traveling public officer within the meaning of AS 39.52.130 if an authorized supervising public officer approves acceptance of the offer in advance in writing. A payment of expenses exceeding travel expenses or any other gift that a traveling officer receives is subject to the provisions of AS 39.52.130 and (a) and (b) of this section. In this subsection,

(1) "travel expenses" means the costs of transportation, lodging, or meals comparable to what the state would pay for the traveling public officer to carry out the associated official responsibilities; and

(2) "authorized supervising public officer" means

(A) the head of the agency; or

(B) a public officer delegated the authority by the head of the agency to accept offers to pay travel expenses, if the public officer having delegated authority will not participate in the travel.

History

Authority: AS 39.52.130; AS 39.52.950
Eff. 4/24/94, Register 130; am 12/22/2010, Register 196

9 AAC 52.070 Information disseminated to the public

(a) For purposes of AS 39.52.140, information has been disseminated to the public if it has been distributed to the public through

(1) a newspaper or other printed publication;

(2) broadcast media;

(3) a press release;

(4) a newsletter;

(5) a legal notice;

(6) a nonconfidential court filing;

(7) a published report;

(8) an agency's website;

(9) posting on the Alaska Online Public Notice System established under AS 44.62.175;

(10) a public speech; or

(11) public testimony before the legislature or an agency.

(b) Information that is available to the public but that has not been distributed as described in (a) of this section has not been disseminated to the public.

History

Authority: AS 39.52.140; AS 39.52.950
Eff. 4/24/94, Register 196; am 12/22/2010, Register 196

9 AAC 52.080 State grants, contracts, leases, and loans

(a) For purposes of AS 39.52.150(b), a state grant, contract, or lease is competitively solicited if the grant, contract, or lease

(1) is awarded by competitive sealed bidding under AS 36.30.100 - 36.30.190 or competitive sealed proposals under AS 36.30.200 - 36.30.270; or

(2) is awarded by procedures substantially similar to competitive sealed bidding or competitive sealed proposals and AS 36.30 does not apply to the awarding of the grant, contract, or lease.

(b) If a state grant, contract, lease, or loan is awarded by or for a public corporation, board, or commission within a department but not by or for the office of the commissioner of that department, then an employee of the office of the commissioner in that department is not considered to be employed by the administrative unit awarding the grant, contract, lease, or loan.

(c) For purposes of AS 39.52.150(b)(1), if the public officer was not employed by the administrative unit at the time a state grant, contract, or lease was competitively solicited, the officer's subsequent employment by that administrative unit does not constitute a violation of AS 39.52.150 unless the officer takes or withholds official action with respect to the administration of the grant, contract, or lease.

(d) For purposes of AS 39.52.150(c), a loan is not subject to fixed eligibility standards if the award of the loan is subject to review for adequacy of security or other discretionary judgment concerning repayment ability.

History

Authority: AS 39.52.150; AS 39.52.950
Eff. 4/24/94, Register 130

9 AAC 52.090 Outside employment or service

For purposes of AS 39.52.170, a public employee's outside employment or service, including volunteer service, is incompatible or in conflict with the proper discharge of official duties if the employee's designated supervisor reasonably determines that the outside employment or service

(1) takes time away from the employee's official duties;

(2) limits the scope of the employee's official duties; or

(3) is otherwise incompatible or in conflict with the proper discharge of the employee's official duties.

History

Authority: AS 39.52.170; AS 39.52.950
Eff. 4/24/94, Register 130

9 AAC 52.100 Restrictions on employment after leaving state service

(a) For purposes of AS 39.52.180(a), "matter" does not include the general formulation of policy by a public official.

(b) For purposes of AS 39.52.180(a), routine processing of documents, general supervision of employees without direct involvement in a matter, or ministerial functions not involving the merits of a matter under consideration by an administrative unit do not constitute personal or substantial participation in a matter by a public officer.

History

Authority: AS 39.52.180; AS 39.52.950
Eff. 4/24/94, Register 130

9 AAC 52.110 Ethics files

(a) A designated supervisor shall maintain an ethics file containing Ethics Act reports, advisory opinions, advisory opinion requests, complaints, disclosures, and determinations relevant to that supervisor's agency or administrative unit.

(b) A designated supervisor shall segregate confidential material from other ethics file material that is available for public inspection.

(c) An executive director of a board or commission may maintain the ethics file of the chair of the board or commission. The ethics file of the chair of a board or commission may be combined with the ethics file of the designated supervisor of the staff of the board or commission.

History

Authority: AS 39.52.210; AS 39.52.230 AS 39.52.220; AS 39.52.950
Eff. 4/24/94, Register 130

9 AAC 52.120 Declaration of potential violation by member of a board or commission

(a) A declaration by a member of a board or commission of the facts and circumstances about a matter that may result in a violation of AS 39.52.110 - 39.52.190 or this chapter may serve as the disclosure in writing to the designated supervisor required by AS 39.52.220 if

(1) the declaration is made at a recorded public meeting of each board and commission on which the member serves;

(2) a tape or transcript of each meeting is preserved in accordance with the records retention schedule of the board or commission; and

(3) a method for identifying each portion of tape or transcript containing the declaration is used and the identifications are preserved.

(b) A member of a board or commission who takes or withholds an action that violates the Ethics Act or this chapter will not be held liable under the Ethics Act for the action if

(1) the action is taken or withheld in accordance with a determination by the chair as designated supervisor or the board under the procedures set out in AS 39.52.220;

(2) the member fully discloses all facts reasonably necessary to the determination of the chair or the board; and

(3) the attorney general has not advised the member, chair, board, or commission that the action violates the Ethics Act or this chapter.

History

Authority: AS 39.52.220; AS 39.52.240(d)AS 39.52.950
Eff. 4/24/94, Register 130

9 AAC 52.130 Designated supervisor's report

(a) A designated supervisor shall submit the quarterly report described in AS 39.52.260 during the 30 days following the end of each calendar quarter.

(b) An executive director of a board or commission may file a quarterly report on behalf of the chair of the board or commission. The quarterly report filed on behalf of a chair and the quarterly report of a designated supervisor of the staff of a board or commission may be combined into one report.

(c) If a board or commission does not meet during a calendar quarter, and the designated supervisor of the board or commission notifies the attorney general that no meeting, or activity reportable under the Ethics Act or this chapter, occurred during the calendar quarter, neither the chair nor the designated supervisor of the staff must file a report for the board or commission for the quarter.

History

Authority: AS 39.52.260; AS 39.52.950
Eff. 4/24/94, Register 130; am 12/22/2010, Register 196

9 AAC 52.135 Designated supervisor's determination of violation

If, upon review of an ethics disclosure, a designated supervisor determines that a violation of AS 39.52.110 - 39.52.190 may have or has occurred, the designated supervisor shall

(1) in the case of a public employee, refer the matter for investigation and appropriate disciplinary action in accordance with AS 39.52.420 and, following any disciplinary action, to the attorney general for review under AS 39.52.310, unless the significance of the identified violation warrants immediate review by the attorney general; and

(2) in the case of a board or commission member, refer the matter to the attorney general for review under AS 39.52.310.

History

Authority: AS 39.52.210; AS 39.52.310; AS 39.52.950 AS 39.52.220; AS 39.52.420
Eff. 12/22/2010, Register 196

9 AAC 52.140 Complaints; legal representation

(a) The attorney general will, in the attorney general's discretion, conduct a preliminary ethics investigation before initiating or accepting a complaint. A preliminary ethics investigation and information discovered in the course of a preliminary ethics investigation is confidential to the same extent as information discovered in an ethics investigation conducted after the acceptance of a complaint.

(b) The attorney general will, in the attorney general's discretion, refer a complaint to the subject's designated supervisor under AS 39.52.310(e) and, at the same time, accept the complaint for an ethics investigation under AS 39.52.310(f) and (g).

(c) If the attorney general refers a complaint under AS 39.52.310(e) and the designated supervisor determines that a violation of the Ethics Act or this chapter has occurred, the designated supervisor shall forward those findings to the attorney general for review under AS 39.52.310 - AS 39.52.350.

(d) If an ethics complaint does not allege a violation of the Ethics Act or this chapter by the governor, lieutenant governor, or attorney general but, in the course of an ethics investigation, evidence of a potential violation by the governor, lieutenant governor, or attorney general is discovered, then the attorney general will refer the matter to the personnel board. The personnel board shall retain independent counsel in the same manner as if the complaint initially alleged those violations.

(e) If a complaint against a public officer alleges more than one violation of the Ethics Act, the attorney general may take action under AS 39.52.310, 39.52.320, 39.52.330, and 39.52.350 regarding each alleged violation separately.

(f) If a person brings a complaint alleging a violation under AS 39.52.110 - 39.52.190 or this chapter by the governor or the lieutenant governor, the Department of Law may provide legal representation if the attorney general certifies that the representation is in the public interest. For complaints against the attorney general, the governor may certify that representation by the Department of Law is in the public interest. For the purpose of this subsection, "public interest" includes whether the action taken is within the scope of the official's duties.

(g) Notwithstanding the certification under (f) of this section, the governor, lieutenant governor, or attorney general may decline representation by the Department of Law and hire private counsel.

(h) Information received by the Department of Law that is related to the defense of a complaint under this section is confidential and not subject to disclosure, absent a court order or a release of information.

History

Authority: AS 39.52.310; AS 39.52.330; AS 39.52.950 AS 39.52.320; AS 39.52.350
Eff. 4/24/94, Register 130; 12/22/2010, Register 196; am 11/12/2023, Register 248

9 AAC 52.150 Personnel board notification

If independent counsel appointed under AS 39.52.310(c) recommends action under AS 39.52.330, the independent counsel shall notify the personnel board that action to correct or prevent a violation of the Ethics Act or this chapter has been recommended.

History

Authority: AS 39.52.330; AS 39.52.950
Eff. 4/24/94, Register 130

9 AAC 52.160 Confidentiality

(a) The attorney general will keep confidential the information obtained in the course of an ethics investigation that is not relevant to an accusation or subsequent ethics proceedings.

(b) The attorney general will, in the attorney general's discretion, forward information obtained in the course of an ethics investigation to the subject's designated supervisor or other appropriate superior for potential disciplinary action under AS 39.52.420. Information forwarded under this subsection remains confidential, and the subject's designated supervisor or other appropriate superior may share the information only with a person who needs to know the information to consider potential disciplinary action.

(d) Nothing in AS 39.52.340 or this section prevents a person from disclosing to a third person information the person learned independent of the investigation conducted by the attorney general, unless prohibited by other laws.

(e) Nothing in this section prevents either the attorney general from withholding or a person from objecting to the release of information or materials in the possession of the attorney general on a legal ground other than one provided by AS 39.52.340.

(f) If, after an ethics investigation, the attorney general does not initiate formal proceedings, then information and material discovered in the course of the ethics investigation, as well as the existence of the ethics investigation, must remain confidential unless disclosure is otherwise permitted under the Ethics Act or this chapter.

(g) If the attorney general determines that a crime may have been committed or may be committed, the attorney general will, in the attorney general's discretion, release information obtained in a confidential ethics matter to an appropriate law enforcement agency.

History

Authority: AS 39.52.340; AS 39.52.420; AS 39.52.950
Eff. 4/24/94, Register 130

9 AAC 52.170 Civil penalties for multiple violations

If one act violates more than one provision of the Ethics Act, a civil penalty may be imposed for each provision violated. A civil penalty may be imposed each time a provision of the Ethics Act is violated.

History

Authority: AS 39.52.440; AS 39.52.950
Eff. 4/24/94, Register 130

9 AAC 52.180 Attorney general review of agency policies

The attorney general will approve a written policy described in AS 39.52.920 if it is consistent with and furthers the purposes of the Ethics Act and this chapter. As a condition of approval, the attorney general will require that the policy be distributed to employees of the agency and to new employees of the agency upon employment, and require that the policy be centrally posted in the agency's offices.

History

Authority: AS 39.52.920; AS 39.52.950
Eff. 4/24/94, Register 130

9 AAC 52.990 Definitions

(a) In AS 39.52.410, "blind trust" means a trust established under AS 39.50.040.

(b) In the Ethics Act and in this chapter,

(1) "board or commission" has the meaning given in AS 39.52.960 and does not include an entity created under only a federal statute or other non-state action;

(2) "Ethics Act" means Alaska Executive Branch Ethics Act (AS 39.52);

(3) "executive director" includes an executive secretary to a board or commission under AS 08 or the marine pilot coordinator under AS 08.62.050;

(4) "improper motivation" means a motivation not related to the best interests of the state, and includes giving primary consideration to a person's

(A) kinship or relationship with a public officer;

(B) financial association with a public officer;

(D) political affiliation;

(5) "person" has the meaning given in AS 39.52.960 and includes governmental entities;

(6) repealed 12/22/2010;

(7) "public employee" has the meaning given in AS 39.52.960 and includes a permanent employee of an agency on non-seasonal leave without pay status, but does not include an individual on layoff status, a seasonal employee of an agency during the period of time that the employee is not employed by the agency, or a temporary employee of an agency during the period of time that the employee is not employed by the agency;

(8) "state contract" includes employment with the state, regardless of whether that employment is evidenced by a written agreement, but does not include a license or other authorization from the state to do business or to perform a particular activity in the state; and

(9) "subject" means an individual who either

(A) is being investigated for a potential violation of the Ethics Act or this chapter; or

(B) is the individual against whom a complaint is filed under the Ethics Act or this chapter.

History

Authority: AS 39.52.120; AS 39.52.950 AS 39.52.410; AS 39.52.960
Eff. 4/24/94, Register 130; am 12/22/2010, Register 196

Chapter 64 Procedures for Complaints Against Administrative Law Judges or Hearing Officers

9 AAC 64.010 Purpose and applicability

(a) The purpose of this chapter is to implement the requirement in AS 44.64.050 to establish procedures for investigating and holding hearings on complaints against administrative law judges and hearing officers.

(b) This chapter applies to complaints filed against administrative law judges and hearing officers under AS 44.64.050 and 2 AAC 64.070, alleging violations of AS 44.64.050 or 2 AAC 64.010 - 2 AAC 64.050.

History

Authority: AS 44.64.050
Eff. 10/29/2006, Register 180

9 AAC 64.020 Requirements for complaints against the chief administrative law judge

(a) A person who believes that the chief administrative law judge has violated AS 44.64.050 or 2 AAC 64.010 - 2 AAC 64.050 may file a complaint. The complaint must

(1) be in writing;

(2) describe the conduct and other facts on which the complaint is based;

(3) explain why the person making the complaint believes the conduct violates AS 44.64.050 or 2 AAC 64.010 - 2 AAC 64.050;

(4) identify the hearings or proceedings, if any, in which the conduct occurred;

(5) provide the name, mailing address, and telephone number of the person making the complaint; and

(6) be signed personally, under penalty of perjury, by the person making the complaint.

(b) A person who is unable to prepare a written complaint without assistance may contact the attorney general to arrange for an alternate method of filing the complaint.

(c) The attorney general will reject or return for additional information any complaint failing to meet the requirements of (a) of this section, except as provided in (b) of this section.

(d) The person making the complaint must mail or deliver the complaint to the attorney general.

History

Authority: AS 44.64.050
Eff. 10/29/2006, Register 180

9 AAC 64.030 Review of complaints against the chief administrative law judge

(a) The attorney general will review any complaint filed against the chief administrative law judge under AS 44.64.050.

(b) The attorney general will follow the procedures described in 9 AAC 64.040 - 9 AAC 64.060 for investigation, hearing, and disposition of a complaint if, after reviewing the complaint, the attorney general determines that the conduct alleged in the complaint, if true, would constitute a violation of

(1) AS 44.64.050(a); or

(2) 2 AAC 64.010 - 2 AAC 64.050 warranting disciplinary action.

(c) The attorney general will deny the complaint and give written notice of the denial to the person making the complaint and to the chief administrative law judge if, after reviewing the complaint, the attorney general determines that the conduct alleged in the complaint, if true, would not constitute a violation of

(1) AS 44.64.050(a); or

(2) 2 AAC 64.010 - 2 AAC 64.050 warranting disciplinary action.

History

Authority: AS 44.64.050
Eff. 10/29/2006, Register 180

9 AAC 64.040 Investigation of complaints

(a) The attorney general will designate an investigator to investigate a complaint if the subject of the complaint is

(1) the chief administrative law judge, and the attorney general determines that the complaint alleges conduct that, if true, would constitute a violation of

(A) AS 44.64.050(a); or

(B) 2 AAC 64.010 - 2 AAC 64.050 warranting disciplinary action; or

(2) an administrative law judge or hearing officer, and the chief administrative law judge referred the complaint to the attorney general for investigation.

(b) When the attorney general designates an investigator to investigate a complaint, the attorney general will notify in writing the person making the complaint and the subject of the complaint. In the notice, the attorney general will identify the investigator.

(c) The person making the complaint or the subject of the complaint may object to the designated investigator by submitting to the attorney general a written statement describing the grounds for objection. An objection is timely if the attorney general receives the written statement of objection within 15 days of the date of distribution of the attorney general's notice of designation of the investigator. If the attorney general receives a timely objection, the attorney general will consider the objection and determine whether the designated investigator can fairly and impartially investigate the complaint. If the attorney general determines that the designated investigator cannot fairly and impartially investigate the complaint, the attorney general will withdraw the designation and designate a different investigator, subject to the notice and objection provisions of (b) of this section and this subsection. If the attorney general determines that the designated investigator can fairly and impartially investigate the complaint, the attorney general will notify in writing the person making the complaint and the subject of the complaint.

(d) The investigator shall send a copy of the complaint to the subject of the complaint by mail, facsimile transmission, electronic mail, or hand delivery.

(e) The investigator may require the subject of a complaint to provide, within 20 days after the complaint is sent, a written response to the complaint, disclosing all facts and circumstances pertaining to the alleged violations or explaining why the subject of the complaint cannot then disclose all facts and circumstances pertaining to the alleged violations. The investigator may, in writing, grant the subject of a complaint additional time to respond to the complaint if the subject of the complaint requests additional time. Failure to provide a response within the prescribed time, or within any additional time that the investigator grants in writing, may be considered an admission of the allegations in the complaint.

(f) The investigator shall investigate the complaint to determine whether there is probable cause to believe that a violation of AS 44.64.050 or 2 AAC 64.010 - 2 AAC 64.050 occurred. The investigator may question witnesses, request documents, and conduct other investigatory activities.

(g) After investigation, the investigator shall prepare and submit to the attorney general a proposed written determination of whether there is probable cause to believe that a violation of AS 44.64.050 or 2 AAC 64.010 - 2 AAC 64.050 occurred. The attorney general may accept, reject, or modify the investigator's proposed determination, or direct the investigator to conduct additional investigation. The attorney general will determine whether there is probable cause to believe that a violation of AS 44.64.050 or 2 AAC 64.010 - 2 AAC 64.050 occurred.

History

Authority: AS 44.64.050
Eff. 10/29/2006, Register 180

9 AAC 64.050 Hearings on complaints

(a) If the attorney general determines after investigation that there is probable cause to believe that a violation of AS 44.64.050 or 2 AAC 64.010 - 2 AAC 64.050 occurred, the attorney general will designate an adjudicator to hold a hearing on the complaint.

(b) When the attorney general designates an adjudicator to hold a hearing on a complaint, the attorney general will notify in writing the person making the complaint, the subject of the complaint, and the investigator. In the notice, the attorney general will identify the adjudicator.

(c) The subject of the complaint or the investigator may object to the designated adjudicator by submitting to the attorney general a written statement describing the grounds for objection. An objection is timely if the attorney general receives the written statement of objection within 15 days of the date of distribution of the attorney general's notice of designation of the adjudicator. If the attorney general receives a timely objection, the attorney general will consider the objection and determine whether the designated adjudicator can accord a fair and impartial hearing. If the attorney general determines that the designated adjudicator cannot accord a fair and impartial hearing, the attorney general will withdraw the designation and designate a different adjudicator, subject to the notice and objection provisions of (b) of this section and this subsection. If the attorney general determines that the designated adjudicator can accord a fair and impartial hearing, the attorney general will notify in writing the subject of the complaint and the investigator.

(d) The adjudicator shall hold a hearing on the complaint unless the subject of the complaint and the investigator agree in writing that a hearing is unnecessary for preparation of proposed findings and recommendations for corrective or disciplinary action concerning the complaint.

(e) If the adjudicator holds a hearing on the complaint,

(1) the adjudicator shall set a time and place for the hearing and notify the person making the complaint, the subject of the complaint, and the investigator;

(2) the person making the complaint may attend the hearing;

(3) the subject of the complaint may attend the hearing, present evidence, examine and cross-examine witnesses, and be represented by counsel;

(4) the investigator shall attend the hearing, and may present evidence and examine and cross-examine witnesses;

(5) the adjudicator may question witnesses at the hearing;

(6) the adjudicator may grant requests to participate by telephone in the hearing;

(7) the adjudicator may issue procedural orders governing the exchange of information between the subject of the complaint and the investigator in preparation for the hearing;

(8) the adjudicator may issue orders governing the presentation of evidence at the hearing;

(9) the rules of evidence used in the courts of the state do not apply to the hearing except as a guide, but the rules of privilege apply as they apply in civil actions in the courts of the state; and

(10) the hearing shall be electronically recorded.

(f) After completing the hearing, or after determining under (d) of this section that a hearing is unnecessary, the adjudicator shall prepare and submit to the attorney general proposed written findings and recommendations for corrective or disciplinary action. When the adjudicator submits proposed written findings and recommendations to the attorney general, the adjudicator shall also provide copies of the proposed written findings and recommendations to the person making the complaint, the subject of the complaint, and the investigator. The person making the complaint, the subject of the complaint, or the investigator may object to the adjudicator's proposed written findings and recommendations by submitting to the attorney general, within 15 days of the date of distribution of the proposed written findings and recommendations, a written statement describing the grounds for objection. The attorney general may accept, reject, or modify the adjudicator's proposed written findings and recommendations, or direct the adjudicator to take additional evidence, make additional findings, or conduct other proceedings.

History

Authority: AS 44.64.050
Eff. 10/29/2006, Register 180

9 AAC 64.060 Disposition of complaints

(a) If the attorney general determines after investigation that there is not probable cause to believe that a violation of AS 44.64.050 or 2 AAC 64.010 - 2 AAC 64.050 occurred, the attorney general will issue a written notice of dismissal of the complaint.

(b) If the attorney general designates an adjudicator to hold a hearing on a complaint, the attorney general, after receiving the adjudicator's proposed findings and recommendations, will issue written findings and recommendations for corrective or disciplinary action.

(c) If the attorney general issues a notice of dismissal or written findings and recommendations concerning a complaint, the attorney general will submit copies to

(1) the person making the complaint;

(2) the subject of the complaint;

(3) the chief administrative law judge;

(4) the agency that employed or retained the subject of the complaint for the hearings or proceedings described in the complaint, if the subject of the complaint was not employed or retained by the office of administrative hearings for those hearings or proceedings;

(5) the investigator of the complaint;

(6) the adjudicator, if the attorney general designated an adjudicator to hold a hearing on the complaint;

(7) the supervisor of the subject of the complaint, if the subject of the complaint is a state employee and the chief administrative law judge is not the employee's supervisor; and

(8) the governor, if the chief administrative law judge is the subject of the complaint.

History

Authority: AS 44.64.050
Eff. 10/29/2006, Register 180

9 AAC 64.900 Definitions

In this chapter,

(1) "administrative law judge" has the meaning given in AS 44.64.200;

(2) "hearing officer" has the meaning given in AS 44.64.200.

History

Authority: AS 44.64.050
Eff. 10/29/2006, Register 180