Palin Accused of Violating "Scope", Not Law

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.

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:

(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.

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

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.

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:

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.

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.

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

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