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Palin Accused of Violating "Scope", Not Law
Alaska Attorney General Opinions | October 11, 2008 | SBD

Posted on 10/11/2008 3:50:47 AM PDT by SBD1

The ridiculously lengthy "PUBLIC REPORT" for the Legislative Council of Alaska, released October 10, 2008 by Stephen Branchflower, reached the following conclusions:

1. For the reasons explained in section IV of this report, I find that Governor Sarah Palin abused her power by violating Alaska Statute 39.52.110(a) of the Alaska Executive Branch Ethics Act. Alaska Statute 39.52.l10(a) provides

"The legislature reaffirms that each public officer holds office as a public trust, and any effort to benefit a personal or financial interest through official action is a violation of that trust."

2. I find that, although Walt Monegan's refusal to fire Trooper Michael Wooten was not the sole reason he was fired by Governor Sarah Palin, it was likely a contributing factor to his termination as Commissioner of Public Safety. In spite of that, Governor Palin's firing of Commissioner Monegan was a proper and lawful exercise of her constitutional and statutory authority to hire and fire executive branch department heads.

As a preliminary matter, if I was in Governor Palin's shoes, I would have fired Monegan the minute I was given that Wooten Poster to autograph from him. In case you missed that little tid bit, here is a quote from Todd Palin's Deposition which included another outrageous accusation by Monegan.

In that same email, Monegan stated that he had heard a rumor from an unnamed source that Sarah was supposedly driving Trig, then around 9 weeks old, in her car without "an approved infant car seat" and that this situation could be "awkward."

This odd and offensive email was forwarded to me. I was in Dillingham at the time. She was not happy with Monegan's false accusation or his implied threat that it was "awkward" as if he now needed to issue a citation.

Sarah has always been a good mother and to accuse her of something like that was very offensive. Sarah responded that "I've never driven Trig anywhere without a new, approved car seat. I want to know who said otherwise-pls provide me that info now."(Emphasis added).

I am not sure Monegan ever responded to the Governor's direct order. The next day it was learned through Kris Perry that this false allegation of her driving was really about a group tour of a Point McKenzie farm and a big diesel truck that everyone rode in on a private farm road without traffic at low speed. Sarah was not driving, she was a passenger with others, and it was like taking a shuttle. Later, the same false rumor was repeated on an anti- Palin blog.

In May of 2008, the troopers issued a poster that featured Mike Wooten on it. I arrived at Sarah's office shortly after the Department of Public Safety dropped off the poster there. Sarah and I discussed this later. It seems odd to me now, after Monegan claims all this "pressure" about Wooten, that in May 2008 he did not know what Wooten looked like.

This is how this incident is described in the "Report".

The 2008 Police Memorial Day-photograph event

Shortly before the annual celebration of Police Memorial Day on May 15, 2008, Commissioner Monegan had dropped off a color photograph at Governor Palin's Anchorage office with a request that she sign and present it at the ceremony. The photograph was of an Alaska State Trooper who was dressed in a formal uniform, saluting. He was standing in front of the police memorial located in front of the crime lab at AST headquarters in Anchorage, partially obscured by a flagpole. The picture to be signed by the Governor was to be used as a poster to be displayed in various Trooper Detachments around the state.

Shortly after he returned to his office from dropping off the photograph, he received a call from Kris Perry, Governor Palin's Director of her Anchorage office who asked [according to Walt Monegan's testimony] "Why did you send a poster over here that has a picture of Mike Wooten on it? Until that moment, Commissioner Monegan never realized it was indeed a photograph of Trooper Wooten. Governor Palin cancelled her appearance and sent Lieutenant Governor Parnell in her place.

So the guy was given a file and photos of Wooten by Todd Palin as confirmed by Monegan during his testimony, yet he did not know Wooten was on the cover of the Poster?? And why would a Trooper like Wooten be chosen for such a photo in the first place for an event where it would be signed by Governor Palin??

In addition to all of the above, Monegan was not cooperating with the Palin administration and in particular with budget issues. Which when looked at from a personal perspective would have been more than enough to boot Monegan as far as her boot could boot him.

Yet, the predetermined investigation found could not find an actual law or statute that Palin had broken, so instead concluded that she violated the "scope of the code"!!

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF ALASKA File No. 663-87-0150 1986 Alas. AG LEXIS 171; 1986-2 Op. (Inf.) Atty Gen. Alas. 333 November 13, 1986

The legislative purpose of the Ethics Act is to prevent public employees from using their positions for personal or financial gain. AS 39.52.010(a). The legislature recognized, however, that it is impossible to entirely avoid all conflicts of interest, and it is therefore necessary "to distinguish between those minor and inconsequential conflicts that are unavoidable in a free society (Like having a Lunatic Ex Brother-In Law), and those conflicts of interest that are substantial and material." AS 39.52.110(a)(3).

After setting out initial guidelines, the legislature outlined a number of specific activities which are henceforth prohibited for executive branch employees. One specific prohibition is potentially applicable to Mr. Jordan's case. AS 39.52.120(b) provides, in relevant part:

(b) A public officer may not

(4) take or withhold official action in order to affect a matter in which the public officer has a personal or financial interest . . . .

So the statute Palin supposedly violated is not a prohibited activity, but rather a guideline.

Here is another Alaska Case.

CHARLES D. EADDY, Employee, Applicant, v. STATE OF ALASKA, (Self-Insured) Employer, Defendant AWCB Case No. 9034019; AWCB Decision No. 98-0220 ALASKA WORKERS' COMPENSATION BOARD 1998 AK Wrk. Comp. LEXIS 2803 August 24, 1998

II. CONFLICTS OF INTEREST

The Alaska Executive Branch Ethics Act governs public officers in the executive branch of the state of Alaska. This includes the panel chairman, who is a Workers' Compensation Hearing officer, and the members of the Alaska Workers' Compensation Board, such as panel members Ridgley and Williams.

AS 39.52.110(a) provides, in part:

The legislature reaffirms that each public officer holds office as a public trust, and any effort to benefit a personal or financial interest through official action is a violation of that trust. In addition, the legislature finds that, so long as it does not interfere with the full and faithful discharge of an officer's public duties and responsibilities, this chapter does not prevent an officer from following other independent pursuits. . . .

The Alaska Executive Branch Ethics Act at AS 39.52.120, et seq., provides a list of specific violations of the administrative code of ethics. A summary of the list of possible conflicts follows:

It the goes on to list the specific statutes starting with AS 39.52.120.

Here is a more recent decision.

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF ALASKA AGO File No. 661-07-0014 2007 Alas. AG LEXIS 28 June 21, 2007

Employee has a "financial interest" in the companies whose stock he owns either directly or indirectly by definition under the Ethics Act. We are concerned with whether his action relating to a company could affect his own interest. Generally he must refrain from taking any action that may affect his interests under AS 39.52.120. When reviewing actions that have been taken or considering potential actions, we can determine that no substantial impropriety has occurred or will occur by applying the factors in AS 39.52.110(b). These factors require considering whether the value off his interest is insignificant and whether the action had or would have only insignificant or conjectural effect on his interest.

and here is another one

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF ALASKA

FILE NO. 661-07-xxxx 2007 Alas. AG LEXIS 4 April 3, 2007

II. GENERAL PRINCIPLES FOR APPLYING THE ETHICS ACT

The Executive Branch Ethics Act is intended to ensure that public officers will not base their official decisions and actions upon their own personal or financial interests. A purpose of the Act is to ensure that "public officers conduct the public's business in a manner that preserves the integrity of the governmental process and avoids conflicts of interest."

The Act also acknowledges that public officers should be free to pursue personal and financial interests, and are valued for those interests, as long as the interests do not interfere or conflict with the officers' public responsibilities. (Like getting rid of a dangerous Trooper)

Alaska Statute 39.52.110 addresses the scope of the ethics code established by the Act as follows:

(a) The legislature reaffirms that each public officer holds office as a public trust, and any effort to benefit a personal or financial interest through official action is a violation of that trust. In addition, the legislature finds that, so long as it does not interfere with the full and faithful discharge of an officer's public duties and responsibilities, this chapter does not prevent an officer from following other independent pursuits. The legislature further recognizes that

(1) in a representative democracy, the representatives are drawn from society and, therefore, cannot and should not be without personal and financial interests in the decisions and policies of government;

(2) people who serve as public officers retain their rights to interests of a personal or financial nature; and

(3) standards of ethical conduct for members of the executive branch need to distinguish between those minor and inconsequential conflicts that are unavoidable in a free society, and those conflicts of interests that are substantial and material.

(b) Unethical conduct is prohibited, but there is no substantial impropriety if, as to a specific matter, a public officer’s

(1) personal or financial interest in the matter is insignificant, or of a type that is possessed generally by the public or a large class of persons to which the public officer belongs; or

(2) action or influence would have insignificant or conjectural effect on the matter.

The Ethics Act requires that we be guided by these statements defining the scope of the ethics code when evaluating a potential conflict of interest. The Act speaks principally to actual substantial conflicts of interest, not the appearance of conflict alone. It requires individual determinations regarding potential conflicts of interest on a case by case basis. Under AS 39.52.110(b), set out above, if a particular circumstance may result in a violation, we also consider whether there would be no substantial impropriety if the public officer participated in the matter. Where a potential conflict exists and the terms of AS 39.52.110(b) do not permit participation, steps must be taken to avoid the conflict.

I rest my case!!

SBD


TOPICS: Editorial; News/Current Events; Politics/Elections; US: Alaska
KEYWORDS: ethics; investigation; palin; wooten
Stephen Branchflower should be disbarred!!

SBD

1 posted on 10/11/2008 3:50:47 AM PDT by SBD1
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To: SBD1

Doesn’t have to be fair or factual, just has to enable the headline “Palin abused power.”


2 posted on 10/11/2008 3:58:41 AM PDT by 668 - Neighbor of the Beast
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To: SBD1

Is this a judges “opinion”?
I wonder how long ago this opin was prepared?


3 posted on 10/11/2008 4:01:13 AM PDT by CGASMIA68
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To: SBD1
Until that moment, Commissioner Monegan never realized it was indeed a photograph of Trooper Wooten.

WHAT!?! He's a sneaky lying piece of slime.

4 posted on 10/11/2008 4:01:17 AM PDT by itsthejourney (1 of every 10 people you pass in the mall is here illegally)
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To: 668 - Neighbor of the Beast

Since the MSM has been running with the “Palin abused power” narrative anyway, there isn’t much more “damage” the MSM can inflict with this non-story.


5 posted on 10/11/2008 4:01:30 AM PDT by kb2614 (Hell hath no fury than a bureaucrat scorned)
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To: t1b8zs

There are 4 seperate opinions, November 13, 1986, August 24, 1998, April 3, 2007, and June 21, 2007.


6 posted on 10/11/2008 4:05:12 AM PDT by SBD1
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To: SBD1

So my layman’s reading of all this is that ‘tis much ado about nothing, yeah?


7 posted on 10/11/2008 4:07:39 AM PDT by DieHard the Hunter (Is mise an ceann-cinnidh. Cha ghéill mi do dhuine. Fàg am bealach.)
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To: 668 - Neighbor of the Beast
“Doesn’t have to be fair or factual”.

Apparently it doesn't even have to be internally consistent. The first conclusion says Palin abused her power in violation of a statute. The second says she acted within her authority. Nobody with an IQ in double digits can take this seriously.

8 posted on 10/11/2008 4:09:48 AM PDT by fluffdaddy (Is anyone else missing Fred Thompson about now?)
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To: 668 - Neighbor of the Beast

Absolutely and of course this is this morning’s headline even Sky News in Britain is carrying this statement on the ticker at the bottom of the screen.

Those who have not followed the story or read the actually ruling will believe she is either corrupt or behaved in a biased manner.


9 posted on 10/11/2008 4:17:37 AM PDT by snugs ((An English Cheney Chick - Big Time))
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To: SBD1

Violate scope not law? Only someone with a law degree could reach such a conclusion.


10 posted on 10/11/2008 4:17:59 AM PDT by Maelstorm (This country was not founded with the battle cry "Give me liberty or give me a government check!")
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To: DieHard the Hunter
Yep but the world media will play on it for the next 26 days. Both Sky and BBC in Britain are running with Palin accused of abusing power, to be fair when they then report the full story it is slightly different but how many people actually listen to the full report but read or hear just the headlines/sound bites
11 posted on 10/11/2008 4:19:36 AM PDT by snugs ((An English Cheney Chick - Big Time))
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To: snugs

Radio New Zealand is playing the same thing, too — as a quote from the BBC. They did not report the whole story (predictably) only that she had abused power.

No worries, that’s what talkback is for. Easy enough to correct... that’s my homework for tomorrow.


12 posted on 10/11/2008 4:22:47 AM PDT by DieHard the Hunter (Is mise an ceann-cinnidh. Cha ghéill mi do dhuine. Fàg am bealach.)
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To: DieHard the Hunter

It was funny last night - they didn’t spend too long on Troopergate - economy was still major focus...

This was a desperate attempt by the Dems to get people’s minds off of Obama and his radical connections and voter fraud. Sorry - not going to work.


13 posted on 10/11/2008 4:26:06 AM PDT by DocT111
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To: SBD1

this was the political witchhunt we always knew it was.

The damn MSM of course treats it as an indictment, but we know there was nothing here to see.

At least the report broke on a friday. If it was REALLY bad, they would have released it on a Monday.


14 posted on 10/11/2008 4:27:06 AM PDT by Canedawg (I'm mad as hell and I am not going to take it anymore!)
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To: DocT111
Oh brother! There is a talking head on F & F, Obama supporter, just said "It proves McCain's lack of a vetting process re: Palin".

Do they really want to go there?

15 posted on 10/11/2008 4:29:17 AM PDT by tiredoflaundry
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To: tiredoflaundry

Just shows how desperate the dems are


16 posted on 10/11/2008 4:29:51 AM PDT by DocT111
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To: DocT111

> This was a desperate attempt by the Dems to get people’s minds off of Obama and his radical connections and voter fraud. Sorry - not going to work.

They are kicking and twisting like a felon hanged aloft trying to find a perch that just isn’t there. In due course they, too, will swing slowly in the breeze...


17 posted on 10/11/2008 4:31:12 AM PDT by DieHard the Hunter (Is mise an ceann-cinnidh. Cha ghéill mi do dhuine. Fàg am bealach.)
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To: SBD1; P-Marlowe

They fear her.

Here’s the bottom line: A group of political enemies announced that Governor Palin broke no laws but did things they didn’t like.

Anyone who says otherwise is a partisan liar.

That is the gist of a nationwide ad I’d immediately put on TV. Then I’d drop it.


18 posted on 10/11/2008 4:32:30 AM PDT by xzins (Retired Army Chaplain Pro Deo et Patria)
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To: SBD1

What really does these people no good is that when people are curious and look into what was going on with the brother-in-law they find out about the death threat, tasering a 10 yr. old, drinking and driving his patrol car, illegally shooting a moose, etc. etc. I think this makes this all the more asinine and this ‘investigation’ was nothing but a sham by people who would have held high positions in the Gestapo.


19 posted on 10/11/2008 4:36:52 AM PDT by bushfamfan (Palin is America's Thatcher, Obama is America's Chamberlain with beliefs of Lenin)
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To: xzins
Anyone who says otherwise is a partisan liar.

I believe you are correct. I'll try to name some names: ABC, CBS, NBC, MSNBC, AP. Possibly FOX. CNN's report looked the "fairest" last night from what I saw, but I'll throw them in for good measure. Add the NYT and most other newspapers.
20 posted on 10/11/2008 4:39:30 AM PDT by mmichaels1970 (Stand up for CHUCK!)
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To: kb2614
Since the MSM has been running with the “Palin abused power” narrative anyway, there isn’t much more “damage” the MSM can inflict with this non-story.

They need something to keep all the skeletons [Ayers, Wright, acorn, etc.] stuffed into BO's closet. This is the best they can do for now.

I wish McCain would get out there and ask people if they like the "change" that was voted in during the '06 elections. Tell the voters that the dims are in power and the POTUS can't do anything without congress bringing it to him.

21 posted on 10/11/2008 4:43:43 AM PDT by Arrowhead1952 (Will it be "comrade" after the elections?)
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To: SBD1

PALIN/McCAIN MUST backfire immediately highlighting the maneuver aimed at hyding OSSABAMA’s scary record and relations.
IF they WANT to win they must strike hard


22 posted on 10/11/2008 4:44:20 AM PDT by Ulysse
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To: SBD1

And hounded out of Alaska, along with Hollis Frnech and Kim Ellis.


23 posted on 10/11/2008 4:50:51 AM PDT by Virginia Ridgerunner (Sarah Palin is a smart missile aimed at the heart of the left!)
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To: snugs
-- Those who have not followed the story or read the actually ruling will believe she is either corrupt or behaved in a biased manner. --

In order to reach the conclusion that this incident is evidence of corruption, those who have not followed the story or read the actual ruling will also believe that news reports are accurate.

24 posted on 10/11/2008 4:52:25 AM PDT by Cboldt
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To: SBD1
I posted this last night in another thread:

Monagan (in my opinion based on a reading of the report) purposely tried to intimidate the governor when, in May 2008, he dropped off a picture for her to sign and present at the AST Memorial Day ceremony. The picture was to be displayed at all AST offices throughout the state. The picture was of a trooper in full uniform saluting. The picture was of Mike Wooten. Monagan claimed to not have known until receiving a call from the governor’s assistant that the man pictured was Wooten. HOGWASH! I believe this was an attempt to put the governor in her place - to tell her that no matter what she did, Wooten was safe - so safe, in fact, that he was going to be the very FACE of the Alaska State Troopers.

That’s the crux of the whole matter, right there. Read the report, and you’ll draw the same conclusion. Monagan was insubordinate to the governor in the worst way, and she fired him for it.

In the last sentence, I should have said she "reassigned him", not that she fired him. Either way, she took action to show him who was boss.

25 posted on 10/11/2008 4:54:47 AM PDT by RightFighter (That Sarah Palin. She's so hot right now!)
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To: SBD1

Check out how Huffingtonpost.com is spinning this...how many idiots will only get their view from there? Disgraceful


26 posted on 10/11/2008 4:56:17 AM PDT by jilliane
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To: SBD1

Why is it not surprising that Dems are siding with the 2 alleged wife beaters.

I hope when Palin is VP she also abuses her power and names, shames and fires those responsible for the economic crisis.


27 posted on 10/11/2008 4:58:12 AM PDT by igoramus08
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To: SBD1
heck I know she knows how to use a scope


28 posted on 10/11/2008 4:59:56 AM PDT by Vaquero ("an armed society is a polite society" Robert A. Heinlein)
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To: Cboldt

Unfortunately many still do believe that.


29 posted on 10/11/2008 5:17:54 AM PDT by snugs ((An English Cheney Chick - Big Time))
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To: 668 - Neighbor of the Beast

Several years ago some liberal hack dimocrat (I didn’t say what I wanted to say) made a statement that went along the lines of: “Its not the veracity of the charges that are important but the seriousness of the charges.”

Ever since then that has been the sole driving force behind most, if not all, of the liberal legal attacks.

The very VERY VERY bottom line of this report is the Dimocrats thought they had a club to beat on Palin and hence McCain. But, it turned out that it was a brother defending his sister. How was that going to play out in the public’s mind? Who could or would fault a brother trying to defend his sister from an abusive husband?

This path was turning into a disaster and the only way the Dimocrats could salvage anything is to say Sara violated the “spirit” of the law.

I wonder how many Dimocrats have violated not only the “spirit” of the law but the actual laws themselves? I know that list to be massive and extensive and well beyond any server’s ability to list.


30 posted on 10/11/2008 5:20:45 AM PDT by Nip (Islam - a religion of piece (your head and life). Truth depends on the spelling)
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To: SBD1

If this was their October surprise they sputtered like a little speck of dust in a vast universe!

McCain / Palin 2008 !!!

BTW, pray for a quick turn around with the stock market. After this is overwith the Conservative/Republicans need to stand together and “DEMAND” a full investigation into this financial situation with the understanding an “INDEPENDENT” committee be chosen. Isn’t it amazing how this has been building over the years, but yet this did NOT take place until after the Conventions and almost before the General Elections??? We are being manipulated and duped. Wake up America!!
BE BLESSED FREEPERS!!!


31 posted on 10/11/2008 5:29:47 AM PDT by Paige ("All that is necessary for the triumph of evil is that good men do nothing," Edmund Burke)
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To: SBD1
Palin, (in the context of a political rally) should say how glad she is of the finding. she should then, in her typical fashion say that anyone of the charges against Wooten intrinsically should have been enough for immediate dismissal. she should also say she could have fired Monegan for being ugly, but she fired him for incompetence and insubordination and that she would do it again.
32 posted on 10/11/2008 5:36:01 AM PDT by Heman11 (the truth is not relative)
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To: SBD1

“Governor Palin’s firing of Commissioner Monegan was a proper and lawful exercise of her constitutional and statutory authority to hire and fire executive branch department heads.”

I think the point needs to be made that THIS was the finding. The rest was a political hit job of innuendo and presumption. The legislature has no authority to conduct his investigation, only the personnel board. Therefore this “report” was merely a democrat-driven screed as revenge against a reformer and part of an obama dirty tricks campaign.


33 posted on 10/11/2008 5:41:30 AM PDT by bitterdfwrepub
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To: DieHard the Hunter

Yep, just another dem faux scandal. Hey if you can’t find a ral scandal, manufacture one. If the polls aren’t going your way, manufacture ones that are. If you’re afraid your actual record is a negative, manufacture one that suits your purposes. If you cannot win a debate based on facts, manufacture “facts” that will make the impression you want. And on and on.

Also, remember the other faux scandall the dems have invented—Bush’s firing of the DOJ attorneys. That’s still out there. I’m sure dems will try to tie that to McCain somehow before this election is over.


34 posted on 10/11/2008 5:45:44 AM PDT by dools007
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To: RightFighter; SBD1

I would certainly think I was being threatened if given a commemorative poster to sign of someone I knew wanted to kill me - by the people assigned to protect me.


35 posted on 10/11/2008 5:48:22 AM PDT by hocndoc (http://www.LifeEthics.org (I've got a mustard seed and I'm not afraid to use it.))
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To: dools007

Cornered rats do desperate things.

(That doesn’t dissuade my Welsh Springer Spaniel, tho’ — he’s too dumb to realize the danger and will wade into a corner full of rats face-first with a dumb grin on his face. It usually doesn’t take long before they’re all piled up neatly, stone dead. He’s a good ol’ boy...)


36 posted on 10/11/2008 5:55:43 AM PDT by DieHard the Hunter (Is mise an ceann-cinnidh. Cha ghéill mi do dhuine. Fàg am bealach.)
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To: SBD1

Neither Wooten nor Monegan should have been in their respective positions. Yes, Palin had a personal stake in the matter - Wooten was threatening members of her family, and Monegan was untrustworthy. The cutesy little “oh my God, she broke the law” Democrats are a bunch of smartass phonies.


37 posted on 10/11/2008 6:00:58 AM PDT by popdonnelly (Does Obama know ANYONE who likes America, capitalism, or white people?)
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To: SBD1

This whole incident is PATENT BULLSH!T cooked up by the PINKOS and costing the taxpayers of Alaska thousands of dollars and waisting everybody’s time. MEANINGLESS CRAP.


38 posted on 10/11/2008 6:04:20 AM PDT by GoldenPup
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To: bushfamfan
This whole issue is crazy, when has the media EVER sided with police officers that tazered anyone? If that 10 year old kid had been a drug pusher or God FORBID a terrorist in Gitmo the media would be up in arms demanding everyone within a 100 mile radius be fired. Why aren’t they concerned that he didn't even read that boy his Miranda rights? These people are such frauds.
39 posted on 10/11/2008 6:10:40 AM PDT by Lyantana (A Southern View)
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To: 668 - Neighbor of the Beast
"Doesn’t have to be fair or factual, just has to enable the headline “Palin abused power.”"

No it doesn't. If they want to burn you, they will go to any lengths to do so, even if it means fabricating charges. Government agencies are good at doing that. They will even take down innocent people just to get to the one person they want to get back at. This whole thing was created to damage her politically.

40 posted on 10/11/2008 6:18:58 AM PDT by mass55th (Courage is being scared to death - but saddling up anyway...John Wayne)
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To: SBD1

I think there is a tremendous scandal here. I want to know what kind of dirt that Trooper had on the Commissioner! Why was the Trooper NOT fired immediately and why does he still have a job with the state police? Inquiring minds want to know.


41 posted on 10/11/2008 6:28:29 AM PDT by panthermom
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To: mass55th

The MSM, as usual, is running lock-step in the line with the “Palin Abused Power” headline. People read that and form an opinion, especially since the story says a “panel” made the ruling. However, only one person wrote the decision and the panel didn’t endorse the ruling. But you have to read deep into the story to get the information. Sad.


42 posted on 10/11/2008 6:38:57 AM PDT by WillT
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To: SBD1; fieldmarshaldj

Rats controlled this Panel because a RINO-RAT coalition controls the state senate. What a travesty.


43 posted on 10/11/2008 7:50:21 AM PDT by Impy (Spellcheck hates Obama, you should too.)
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To: All
Sorry,but I had to just rub it in a little and say I told you so!!

BTW, I am not an attorney,but hopefully will be one in a few years!!

Link to report that exonerates Palin

2. Affirmative Acts of Others and Governor Palin's Responsibility For Them.

A. The Branchflower Report Misinterpreted and Misapplied the Ethics Act in Concluding that Governor Palin Abused Her Power in Violation of the Law Through Her "Inaction."

Having determined that the few affirmative actions described above by the Governor did not violate the Ethics Act, the next question to be addressed is whether any violation of the Ethics Act can be attributed to the Governor for failing to curtail the acts of others. Suggestion has been made in the Branchflower Report that the acts of others, which the Branchflower Report asserts the Governor knew or should have known about (citing AS 39.25.900), make out a case for violation of AS 39.52.11O(a). AS 39.52.110(a) is a statute entitled "Scope of code." The Branchflower Report concludes that because of the Governor's inaction in failing to stop certain conduct, she has violated the section entitled "Scope of Code."

Reliance upon AS 39.52.110(a) as a basis for concluding the Governor violated the Ethics Act is legally flawed under any set of facts. It ignores basic statutory construction. The purpose Section 110 was intended to serve, when read in accordance with its legislative history, and in pari materia with the other sections of the Act, was to provide interpretive insight into the construction of other sections of the Act which set forth the elements that can form the basis for a substantive accusation under the Act.

Statutes are structured and organized into various parts, which serve as categories for provisions that are similar in nature or have some logical relationship to other provisions in the same category or seeking to regulate the same kinds of conduct.25 The substantive sections of a statutory scheme set forth the rights, powers, privileges and immunities ( or prohibitions) or confer power? It is common that related statutes which are part of the same act or chapter contain other provisions that state more general legislative intent or are interpretation aids.

Preambles to statutes are not considered substantive but are explanatory and therefore do not determine rights, create duties or confer power.21 A preamble to an act, such as the Ethics Act, does not enlarge the scope or effect of its substantive parts and is limited to being used as a guide in construing or clarifying other ambiguous sections or stating overall legislative intent.28 Section 11O(a) is clearly not substantive and may not be properly used to provide the basis for determining rights, creating duties or enlarging the scope of the Act's substantive parts. The non-substantive provisions, such as Section 11O(a) are there to provide context, reasons for a legislative bill's enactment, and state policy. Specifically, Section 11O(a) is in the Ethics Act is, by its terms, to describe the intended scope of the legislation.

The Ethics Act is divided into various categories, each represented by a different article. See AS 39.52.010 - .965. Article I consists of a single section that communicates the Act's statement of policy as its title, "Declaration Policy" states. AS 39.52.010. Article 2, which is entitled "Code of Ethics" begins with Section 110(a). Section 110 is the very first section in the code and, as its title suggests, is intended to provide a scope explanatory note, containing explanation of legislative intent and purpose, as to how succeeding substantive prohibitions and provisions are to be interpreted.

Though the section may contain some mixed language suggesting a more substantive role for the provision, the section by section legislative history removes any doubt that Section 110 was not intended to define a substantive prohibition. The Ethics Act was before the legislature as SB 391. The sponsor's sectional analysis to Section 110 stated the following:

Sec. 39.52.110. Scope of Code. To clarify the intent behind .the code of ethics, this section describes its scope. One of the major criticisms heard is that it is difficult to get qualified people to serve in public office. This section of the bill makes clear that the legislature, in enacting the code of ethics, recognizes in a representative democracy, which draws its public officers from society, that those officers cannot and should not be without personal or financial stake in Alaska, so long as those private interests do not interfere with the full and faithful discharge for the officer's public responsibilities. Additionally, this section clarifies the intent to distinguish between those minor and insignificant conflicts that are unavoidable in our free society and those conflicts that are substantial and material and must be prohibited. Sectional Analysis ofC.S.S.S.S.B 391 (SA) am, 14th Leg. 2nd Sess., at 1 (1986) (emphasis added).

Thereafter, the substantive provisions of the Code of Ethics itself proceed, wherein the elements of eight specific violations are described in the succeeding sections. The sectional analysis of Section 110 describes its relationship to the rest of the Code by stating that, though the Code is to be interpreted consistent with Section 110, the individual prohibitions beginning with AS 39.52.120 and ending with AS 39.52.190 are the "stem prohibitions on conduct.,,29 The sectional analyses that accompany the legislation describe in detail the eight types of ethical violations in the Act and does not reference AS 39.52.110 among them.

The Branchflower Report relies exclusively on Section IIO(a) to justify a substantive violation of the Ethics Act on the basis of inaction by the Govemor30 The legal analysis of the Branchflower Report finding that the Governor violated AS 39.52.I10(a) is flawed since as a matter of law, a public official or employee cannot directly violate Section 110( a). A claim of violation (an accusation in Personnel Board parlan~e) must be based instead upon one of the eight specific prohibitions passed by the legislature. The actus reus required for a violation cannot be based upon explanatory legislative intent provisions.

SBD
44 posted on 11/04/2008 10:22:51 AM PST by SBD1
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