A superior court judge ruled this week against a former Fairbanks North Star Borough Assembly member who appealed an ethics violation that led to a $1 fine.
It’s the latest development in a saga that’s stuck with the assembly for almost two years and cost the borough thousands in legal fees. But for the assembly member, the case represented concerns about freedom of speech and due process.
Fairbanks Superior Court Judge Brent Bennett’s answered those concerns Monday with a 20-page order that upheld how the assembly and Borough Board of Ethics handled a complaint against Barbara Haney from early- to mid-2024.
Haney, who served on the assembly until losing her race in last year’s election, is representing herself in the case. She said Thursday she hadn’t yet decided whether she’ll try to appeal further.
“Well, I thank the court for their consideration of my case,” she said. “And it’s a very long decision, so I’ll give it the careful reading that it deserves, and make my decision on moving forward after that.”
Haney’s initial appeal came after the assembly in 2024 censured her and fined her $1 over a minor ethics violation. She'd written about borough-related issues in a letter to the editor to the local paper, the Fairbanks Daily News-Miner, without indicating that she wrote as a private citizen and not on behalf of the assembly. The borough ethics board found that doing so was required by borough code at the time. That provision has since been amended.
The board cited the broken section of code that then read, “A public official when making a public statement or otherwise taking a public position shall state they are expressing a personal opinion unless authorized to speak on behalf of the Assembly.”
The board determined the letter was a technical violation and recommended the assembly not penalize Haney at all, but the borough attorney advised assembly members that code said they must impose some sort of penalty after the board deems something a violation.
The assembly voted on the punishment, and Haney later appealed the resulting censure and $1 fine in court.
Among other things, she argued that the determination wasn’t fair because other assembly members were biased, that the ethics board misinterpreted code, and that the borough attorney was wrong to say the assembly must impose a penalty. Haney also argued that the code infringed on constitutional rights to freedom of speech.
Bennett in his order found none of those arguments persuasive.
He said Haney failed to raise objections about any potential conflict of interest findings when the ethics violation hearing took place. The order also says Haney didn’t offer “any legislative history or persuasive rationale” to show how the ethics board erred when determining that the letter constituted a violation. Bennett additionally wrote in the order that local laws did require that the assembly issue a penalty, as the attorney advised.
As for the free speech argument, “The court finds that a requirement that a public official must disclose that they are expressing a personal opinion is not considered ‘speech’ protected by the First Amendment,” Bennett wrote. “Explaining to the public that a position is not the official position of the Assembly is not conveying a particularized message. Rather, it is a requirement of all Assembly Members that does not change depending on the content of the opinion being conveyed.”
The decision didn’t come as a surprise to Scott Crass, the assembly’s current presiding officer, he said.
“I do have to say that it was surprisingly expensive,” he said. “I know we spent well over $20,000 defending our position in this case, and over a $1 fine, it seems like public money that could’ve been better spent in other ways.”
Borough Department of Law records obtained through a public records request and reviewed by KUAC Thursday show the borough’s legal fees in the case totaled about $21,500.
Crass penned an ordinance last year that amended the ethics code after the minor violations of Haney and Savannah Fletcher, another former assembly member, had stirred considerable discontent. His ordinance changed the provision at the center of both infractions and gave the borough ethics board the power to dismiss frivolous complaints.
Crass says he thinks those tweaks could help stop similar cases from arising in the future.