Recently, I posted a culinary tribute to Elvis courtesy of my good friend and musician extraordinaire, Patti Greene. Patti may not know it, but she is one of my primary survival tools during the Alaska winters. Over the 20(?) years I've known her, she frequently shares her philosophy of how to make the best of that long, cold stretch between the New Year and spring:
"Don't make any major decisions and NO BITING!"
I find her wisdom to be inarguable so I try to live by it, as difficult as that can sometimes be.
The last several weeks, it's been extremely difficult because quite frankly, ALL I WANT TO DO IS BITE!
Don't get me started on: Fox News for subjecting us to a steady diet of Palin's special brand of salad-shooter-chopped-stomped-on-then-stray-dog-chewed word salad, or the entire MSM for most of their insipid Palin discussions, or the authors of "Game Changer" for focusing on the shallow foibles of Palin while ignoring her lies, deceit and questionable ethics. Many of my Alaskan blogger friends have covered those issues well and I've surely ranted enough around the house about them.
However, I'm EXTREMELY irritated by a few members of the Alaska Legislature. Why? It's a reaction to the bills being proposed that are touted to "fix the problems" with ethics complaint process. What they really do is ignore the actual problems and aim to make the whole process even MORE secretive and MORE inaccessible when it comes to Alaska's Public Officers!
Let's examine the bills filed so far having to do with the ethics process. There are three:
1) Max Gruenberg filed HB 289:
Authorizing state agencies to pay private legal fees and costs incurred by persons exonerated of alleged Alaska Executive Branch Ethics Act violations; allowing certain public officers and former public officers to accept state payments to offset private legal fees and costs related to defending against an Alaska Executive Branch Ethics Act complaint; and creating certain exceptions to Alaska Executive Branch Ethics Act limitations on the use of state resources to provide or pay for transportation of spouses and children of the governor and the lieutenant governor.
I am actually NOT crabby at Mr. Gruenberg (I'm sure he's relieved)! Looking at this bill and even when AG Sullivan proposed reimbursement for legal fees as a "fix," I didn't have a problem with it for a couple of reasons:
-- The Dept. of Law has previously stated that Thomas Van Flein (Palin's attorney) was already eligible to have some of his bills paid in relation to the Troopergate investigation. So, there is already precedent. (The last I read about it, he never attempted to get reimbursed. The reasons why are up for speculation, but I digress...)
-- If an attorney submits that paperwork for reimbursement by the State, it would then be considered public records accessible by records requests. Thus, we have accountability.
My primary issue regarding elected and appointed officials is in keeping things transparent.
However, not everyone agrees:
2) According to Republican Representative Bob Lynn's House Bill 254:
07 * Sec. 2. AS 39.52.340 is amended by adding a new subsection to read:
08 (d) Except as required by law or permitted by this section, a person filing a
09 complaint under this chapter shall keep confidential the filing of the complaint and the
10 contents of the complaint. If the attorney general determines that a complainant has
11 violated a confidentiality provision of this chapter, the attorney general shall
12 immediately dismiss the complaint. Dismissal of a complaint under this subsection
13 does not affect the right of any person other than the complainant to initiate a
14 complaint based on the same factual allegations.
So...no fix for the fact that the most powerful Governor of all 50 states appoints and fires those who decide the ethics complaints. But it's very important to Mr. Lynn to make the process MORE secretive as this bill will establish that the complaint be dismissed if confidentiality is violated.
3) Then we have Democratic Representative Mike Doogan, who proposed a mostly-similar bill in HB 263:
12 Sec. 39.52.320. Dismissal if confidentiality violated by complainant. If the
13 attorney general determines that a complainant has violated a confidentiality provision
14 of this chapter, the attorney general shall immediately dismiss the complaint. The
01 attorney general shall communicate disposition of the matter promptly to the
02 complainant under AS 39.52.335(c) and to the subject of the complaint. Dismissal of a
03 complaint under this section does not affect the right of any person other than the
04 complainant to initiate a complaint based on the same factual allegations.
Again...no "fix" for the Personnel Board, but a guarantee that a tainted board would get to operate in absolute secrecy. This secrecy applies to a complaint against "any current or former public officer" covered by the Executive Branch Ethics Act.
However, the most interesting part of this is that there is a big contradiction...from Alaska's Attorney General Daniel Sullivan. He addresses confidentiality in his response to inquiries in the wake of the Palin Administration. It seems fairly clear that he believes attempts to "sanction" a complainant for talking about a complaint would be viewed by the courts as a violation of free speech:
Creating safeguards to keep Ethics Act investigations confidential is categorically different than restricting citizens from speaking out about government conduct. Because public dialogue about government actions is speech at the core of the First Amendment, we do not recommend imposing sanctions on a citizen for disclosing information about an ethics complaint he or she has filed. Speech by a citizen charging government officials with breach of a code of official conduct is political speech accorded First Amendment protection. The United States Supreme Court has adhered to the bedrock principle that expression on public issues rests "on the highest rung of the hierarchy of First Amendment values,"19 and thus that "debate on public issues should be uninhibited, robust, and wide-open."20 The Supreme Court has also made clear that protected political speech goes far beyond intellectual argument about political theory; it includes vigorous debate about the qualifications and official conduct of public officials.21 Open discussion of official conduct is accorded the broadest protection available in our political system despite the fact "that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials."22
Alaska's Ethics Act does not inhibit this type of debate, because it does not impose penalties on individuals who are not engaged in the investigative or decision-making process. As we have considered ways to protect the confidentiality of the ethics investigations, we have been mindful that penalizing public discourse about the actions of government officials might threaten First Amendment rights. Courts have consistently found that confidentiality provisions applicable to ethics complaints restrict the content of speech.23 Because they govern the content of speech, these restrictions will survive scrutiny only if narrowly drawn and necessary to serve a compelling state interest.24 Courts generally have rejected states' interests in ethics code confidentiality provisions as insufficient to justify restrictions on citizens' speech.25
So, to summarize, there are a list of reasons why these amendments as written should be rejected:
1) In Alaska, the general public is not permitted to ask the Attorney General/the Department of Law for an official "decision" on an ethics issue. It can only be done by certain Government Employees, a public officer or their legal representative. The only way the general public can get a LEGAL RULING from the State of Alaska on an issue of ethics is to file a complaint.
2) Ethics complaints from the general public against public officers are based on public information, not employment records, etc...to which the general public does not have access. As there is no airing of information made confidential by Alaska Statute, there is NO REASON for the process not to be completely public.
3) During my experience with the complaint process, I constantly heard the meme from the Palin camp that "If these were ethics complaints against a legislator, mentioning them to the media would have them thrown out."
According to an amendment to the Legislative Code of Ethics, yes that is true...for now...(covered in number 4)
However, there is a really big difference in how the Legislative Ethics Committee is selected:
The ethics committee has nine members: two senators, two representatives and five public members. The committee is divided into a House Subcommittee and a Senate Subcommittee for the purpose of considering most complaints. Elected officials, who serve two-year terms, are appointed by the leadership of the appropriate body with the concurrence of two-thirds of the full membership of that house. The public members, who serve a three-year term, are selected by the Chief Justice of the Alaska Supreme Court and ratified by two thirds of the full membership of the legislature.
...as opposed to the appointing/firing authority of the Governor over the Personnel Board.
The current Board has repeatedly demonstrated unprofessional behavior towards the public, has stalled on holding Palin accountable for The Alaska Fund Trust, and there is a tendency of their hired guns to obfuscate and ignore legal precendent in their decisions.
4) As I read the Attorney General's conclusion, the two House Bills in the Legislature right now could actually violate free speech rights if taken to court. This could even indicate that the Legislative Ethics provision for complaint dismissal could possibly be thrown out if a case ever makes it to court.
5) I mentioned The Alaska Fund Trust earlier. I have checked into it and STILL nothing has happened with the case or it would have been made public. Did anyone notice that if the report had not been leaked to the public, we would never know that THE ALASKA FUND TRUST IS A POTENTIAL ETHICS VIOLATION (if she spends it)?
What's the Personnel Board waiting for, the two-year statute of limitations to be up on ethics violations so Palin can spend the money?
To me, this is the single-largest piece of evidence that there are MORE PRESSING problems that need fixing with the Executive Branch Ethics process than a lack of confidentiality.
Perhaps...maybe...a lack of accountability?
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