AG: Defense Free For Top 3 in Ethics Cases

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Created on Tuesday, 17 October 2023 14:51

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By JAMES BROOKS

Alaska Beacon

The state of Alaska will provide legal representation for its governor, lieutenant governor and attorney general in ethics complaints filed against those top officials.

According to a public notice published Friday, Attorney General Treg Taylor approved a regulation allowing the legal defense on Thursday, and it was signed by Lt. Gov. Nancy Dahlstrom’s staff on Friday afternoon. It takes effect Nov. 12.

The proposal is similar in scope to one introduced by former Attorney General Kevin Clarkson in 2019. After legislative attorneys and members of the public raised constitutional and legal questions about the idea, the administration of Gov. Mike Dunleavy withdrew the idea.

The administration revived the proposal in August, and during a 30-day public-comment period, the Department of Law received more than 120 emails and letters opposing the idea. 

A review of comments obtained through a public records request shows none in favor of the proposal.

Current policy allows the state to reimburse top officials for privately hired legal defense under certain circumstances, including in cases where the officials are exonerated.

Assistant Attorney General Cori Mills said in an email that is more expensive than using in-house counsel. 

“In this scenario, the department provides the representation up front when it’s in the state’s best interest, and if a violation is found, the penalty is paid for by the public official.”

To receive legal representation from the state, the attorney general — an official appointed by the governor — must certify that it is in the public interest to defend against a complaint filed against the governor or lieutenant governor. In the case of a complaint filed against the attorney general, the governor must make that certification.

Responding to questions by email, Mills said that the new regulation “helps mitigate the risk that the ethics complaint process is used to harass or becomes predatory. An ethics complaint can be filed for free by anyone for any alleged violation of the ethics act; there is no recourse against a person for filing frivolous or predatory ethics complaints, but it does cost the state and the subject of the complaint valuable time and resources to defend.”

Critics of the change repeatedly said that the new system is vulnerable to self-dealing: The attorney general is appointed by the governor and has authority to grant state-paid legal aid.

“I, frankly, am troubled by the proposal, because I don’t see how they can draw a line between what are frivolous complaints that maybe should have the attorney general helping out, and non-frivolous complaints when the attorney general really should not be involved,” said Sen. Matt Claman, D-Anchorage and chair of the Senate Judiciary Committee.

Under Alaska’s Executive Branch Ethics Act, complaints against the governor, lieutenant governor and attorney general are investigated by independent counsel hired by the State Personnel Board, whose three members are appointed by the governor and subject to legislative confirmation.

The board’s website lists no meetings since August 2022.

Alaska’s ethics complaint process is opaque. State law exempts it from the Alaska Open Records Act, and revealing the existence of a complaint is a violation of state law. 

In 2009, citing a barrage of ethics complaints against then-Gov. Sarah Palin, Attorney General Dan Sullivan said that the state would pay for public officials’ privately hired legal defense under certain circumstances. Sullivan now is Alaska’s junior U.S. senator.

If the official was exonerated, acted within the scope of their job, tallied reasonable expenses and the state had money to pay for the legal bill, the state could pick up the cost, Sullivan wrote.

“I actually think that former attorney general — now U.S. Sen. Dan Sullivan — took what I think is a fairly balanced approach,” Claman said.

Claman and other critics of the new approach said that it could exacerbate ongoing staffing shortages at the Department of Law. If attorneys are defending the governor and other top officials, they might not have as much time to work on domestic violence and sexual assault cases, for example.

There also are continuing questions about the legality of the new system. In August, Sen. Bill Wielechowski, D-Anchorage, asked legislative attorneys whether the new regulation is compliant with state law and the constitution.

Though the new regulation is written differently than the 2019 proposal, said attorney Noah Klein, it still raises questions about whether the change is in the public interest and whether it is a violation of the state’s separation of powers rules.

The Alaska Public Interest Research Group, which denounced the 2019 concept and offered comments against the new idea, said that it’s now up to the Legislature to act.

“With these self-serving ethics regulation changes now signed into law, Gov. Dunleavy and Attorney General Taylor have established a corrupt process that allows them and other Alaska top leaders to operate indefinitely under the cloak of darkness as they break our laws on Alaska’s dime,” said Veri di Suvero, the group’s executive director. “Not only does this decision again ignore the unanimous outpouring of objection from Alaskans, but also ignores the multiple opinions from Legislative Legal, which found these changes illegal.”

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https://alaskabeacon.com/james-brooks

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