Friday, May 15, 2009

Some New Thoughts on the Citizen Activist Palin Ethics Complaints

At the beginning of hour three of Thursday's Dan Fagan radio program on Anchorage's KFQD-AM, Fagan was talking to a caller named April, who claims to work for the State of Alaska, in the executive branch. She explained how employees in the executive branch handle Alaska's executive branch ethics act, when dealing with outside employment.

April stated that many employees in the executive branch work on other jobs. For instance, one may be a bartender, another have a part-time business doing taxes or bookkeeping. If they have such outside employment, in addition to their full time state job, they can appeal to the ethics board, in order to get a review of whether or not their outside employment constitutes a conflict of interest with the work they perform for the executive branch.

From April's description, such requests are routine. She described her job as doing "administrative compliance-type stuff to ensure that employees who work for the state, who do have secondary jobs, do complete the appropriate paperwork to ensure that the employment is either approved or denied."

When Fagan questioned April about whether or not these waiver requests were different from ones like Pain's attorney has submitted regarding the Palin book deal, April responded by pointing out that, "No - this is the EXECUTIVE branch."

Essentially, Palin has the same right - it appears to me - to file for such a waiver as does any other executive branch employee.

And any employee of the executive branch may privately, through the ethics board procedure, object to not only one's own waiver rejection, but, I would assume, re-reading the ordinance, object to somebody else having obtained a waiver. Or a "clarification" on what a rule means can be requested by an executive branch employee, before an employee decides to engage in one activity or another that may or may not be covered by the ordinance.

And citizens, activist or curious ones, have a right to do the same. Only, the way the executive ethics act is written, we can announce our action to the public.

The latter aspect of this was thoroughly covered by AK Muckraker at The Mudflats, on May 4th, by Progressive Alaska that same day, and by other Alaska bloggers.

AK Muckraker noted then that:


The citizen who files the ethics complaint puts together their paperwork, and cites the specific part(s) of the Alaska Executive Branch Ethics Act that they believe have been violated. Then that person brings their complaint to the Department of Law.


The Department of Law makes sure that all the basics are covered, then they stamp it, and take it in. Then the complaint goes to the Personnel Board. The Personnel Board then hires an investigator to
investigate. They ask all kinds of questions, make phone calls, do research, and gather whatever new information that they need to make a determination about whether things should proceed to the next level. That investigator will decide if the case does or does not have merit. That investigator will decide whether the investigation goes forward or not. If the complaint is completely “bogus,” as the governor’s office is fond of saying, then the investigator can dismiss it outright. If the complaint is the result of someone abusing their rights, or is without merit, it gets tossed out.


And Progressive Alaska noted that citizens were disturbed enough about Palin to file requests, in part, because:

1) She got her "Maverick" chops by not only filing an ethics complaint, but by then making her act public knowledge.

2) She campaigned for Governor in 2006 as a person who would reform ethics in Alaska.

3) When she became governor, she had Wev Shea and Ethan Berkowitz work up a white paper that looked into legislative branch ethics.

4) When she became a national ticket candidate, she bragged about how she had swept away the good old boys whose ethical conduct had gamed the system.

5) When she became a national ticket candidate, she attempted to derail or defang a legislative council investigation already underway, with her executive ethics complaint against herself.


Nothing like layers of hypocrisy to bring citizens out of the woodwork, eh?

Of all places, the blog Conservatives4Palin had a comment by DrChill, to an article Wednesday about the ethics of Palin's book deal. The commenter observed the following about Palin's attorney's waiver request, contrasting it to the requests for clarification by activists who aren't employees:

When governor Palin asked the dept of law if her book deal presented an ethical problem, they spent some careful time to consider the question.
The answer was 'no, its okay.'

The system works.

When citizens ask if Palins behavior presents an ethical problem and the answer is 'no, its okay', the system works.

I think the system is working no matter who is questioning the governor's ethics.

I should point out that these so called complaints are just the name of what citizens file to the ethics board.

When state employees do it its called a disclosure, or request for an an advisory opinion.
It sounds much better than complaint.

Essentially they do the same thing. They answer ethics questions.

In most cases if there is a problem found, the board will reply 'Stop doing that.'

Its not a criminal complaint, nor a law suit.

And since almost all have gone her way, you'd think the governor would be thanking people for taking her up on her challenge to hold her accountable.

Other than the hype and hysteria and the overblown layer's charges, the process is working fine.

As I noted in the comments to my post about PA's ongoing poll regarding Palin's ability under state law to write the book while working as governor, I think she should be free to write it.

27 comments:

KB said...

I have a question for you, Phil. Have you actually read the Alaska Executive Branch Ethics Act?

http://www.law.state.ak.us/pdf/ethics/Statutes-AlaskaExecutiveBranchEthicsAct_AS39.52_.pdf

Palin's book deal is a violation.

Anonymous said...

Maybe you should read Diva's blog:

http://divasblueoasis.com/diary/608/sarah-palins-personel-puppet-show-the-department-of-law

Philip Munger said...

I've read and re-read the act, and have read CD's post. I think that Palin's attorneys have created a contract which - for some reason - meets the requirements of the executive ethics act. That's the only thing that makes sense on a reasonable level. Until we actually see the contract, it will be hard to get a fair evaluation.

At this point, we should probably push for publication of the book contract.

Jim Behlke said...

I'm not a blogger, I'm not a legislator; I 'm just an Alaskan. Therefore my point of view is largely worthless. Nonetheless, I think at the very least EBEA should be amended so the personnel board is as unbiased as possible. For example, appointments could be handled similarly to how citizen appointments to the Legislative Ethics Committee are made.

However more broad constitutional revisions should be made. I've been actively engaged suggesting improvements to EBEA and ethics laws to legislators but I've been ignored. I'm just an Alaskan.

Executive branch ethics simply will not be reformed. Both democrats and republicans in our state government often don't listen to individuals like myself-- you must have more leverage than that, either money or influence or both, before they'll listen to you. And I don't see many influential lobbyists advocating for ethics reform.

As a third generation Alaskan with family here for more than a hundred years, my two cents worth.

onejrkitty said...

Phil, you said: "I think that Palin's attorneys have created a contract which - for some reason - meets the requirements of the executive ethics act. That's the only thing that makes sense on a reasonable level..."

Why and how can you "think: Palin's attorney has created a contract that for ANY reason, meets requirements of the ethics act? FROM ALL WE KNOW OF HER AND HIM, IT IS MORE LIKELY NOTHING IN THE CONTRACT MEETS THE ETHICS ACT !

SINCE WHEN have Palin and/or her atty cared about meeting ethics acts requirements??

You state, " that is the only thing that makes sense." SINCE WHEN HAS PALIN MADE SENSE OR CARED TO?

It worries me when I see you assuming, that Palin/Van Flein are paying attention to the ethics act when they never have before.

I agree we need to see the contract first before we can evaluate, but my concern is that you are giving them so much credit for acting ethically WHY? They have not deserved the benefit of the doubt in the past so why in this particular matter?

Why should we take at face value any "legal opinion" by anyone who owes their job to Palin?

Phillip--do we need an intervention here :)

Philip Munger said...

onejrkitty,

Listen to "April's" comments on the Fagan show yesterday. She stated that the act applies to ALL employees in the executive branch. Equally. It doesn't apply more to the governor or less to the governor.

The specific part of the act that names "head[s] of principal executive department[s] of the state" referred to in Talis Colberg's 2007 advisory note to the governor is problematic, but the department of law has determined that the book, somehow, isn't "outside employment."

Citizen activists need to stop referring to their requests for clarification of state laws pertaining to executive branch employees as "ethics complaints." They are, in essence, requests for clarification of interpretation of statutes. Essentially, if a term in an ordinance or law isn't clearly defined in the act itself or through case law or common usage, then clarification requests are important.

What needs to happen is for a citizen activist to file a request for clarification on the differences between Colberg's 2007 advisory, as Palin's "designated ethics supervisor," and Novotny's conflicting advisory or ruling, in which he is probably also serving as Palin's designated ethics supervisor.

Too bad Fagan didn't ask "April" id any department heads are engaged in outside employment, or if any department heads had applied for and had been denied opportunities for outside employment or community service or what-not.

I do believe some department heads have taught as adjunct professors at Southeast Alaska College since the last revisions of the executive ethics act were written in, for instance.

Part of this hinges on whether or not there is a specific definition of "principal" department.

Again, I do believe a lot hinges on our being able to actually read Palin's contract with the publisher.

CelticDiva said...

It's not just Coleberg's advisory, it's the same information given to Sarah Palin and every other Governor:

However, the Ethics Act also precludes "the head of a principal executive department of the state" from engaging in "outside employment."l The Office of the Governor is a principal department of the state.2 Therefore, as head of that office, you may not be engaged in outside employment. We construe "employment" to have its ordinary meaning.According to the FAQ given to every single Executive Branch employee every year when it's time to report their outside employment, this is the definition:

3. What does "outside employment" include?

• Any employment for which you are paid, but not your state employment.

• Examples: a job with another employer, work as an independent contractor, and work in your own business.
And no, the Ethics Act doesn't APPLY differently to all other Executive Branch employees than it does to the Governor, the Law itself TREATS THEM DIFFERENTLY in that lower-level employees MAY HAVE outside employment as long as it doesn't interfere with their state job. THE GOVERNOR MAY NOT. There is no "exception" there for whether or not it is a conflict of interest.

If you read the "ruling" from acting AG Svobodny it is NOT a waiver, it is contradictory within itself AND it reinterprets the outside employment rules for every single Executive Branch Employee.

The determination states that Palin's contract with HarperCollins does not qualify as "employment for compensation" because she is not receiving a salary or wages. That would mean that every plumbing, construction, remodeling, etc...contract would NOT be considered "employment for compensation."

The ruling also uses the portion of the Ethics Law referring to lower-level Executive Branch employees to justify allowing Palin to keep this contract...the "conflict of interest" issue I discussed above. Svobodny is basically using apples to justify oranges.

The true test of this is whether they will now allow other Executive Branch employees to slide on the "outside employment" reporting requirement if they work on a fixed-amount contract basis.

I love ya, Phil, and I think you are off on this one.

crystalwolf aka caligrl said...

Well a copy of the "book contract" should be made available on the state website! And why is Van Flea, her personal lawyer going on radio shows and talking about "ethics complaints"? He is not a state employee or is he? And if he is...why is she complaining of such a huge legal bill? I thought AG suppose to handle these types of things? A personal lawyer, ok speaking of a "private" book contract but since she is the gov, it can't be private...but the lawyer is her private lawyer, she get in a car wreck she's at fault her lawyer represents her not state AG for example. Why is this idiot blabbing all over about state stuff???
Seems like Ethics, laws need to be totally revamped in Alaska!
Just like no separation of church and state in Alaska no separation of public AG/state lawyer or someone (in this case GINO's) personal lawyer.

Anonymous said...

It all makes sense now. Valley folk sticking up for other Valley folk.

You're a shill for Palin, Phil. Unrequited love??

I think you'll be losing a lot of readers over this one, myself included.

You couldn't be more wrong. Read the Executive Branch Ethics Act again, and again, until you get it.

Clearly you don't.

Your non-political blogs are by far your best.

Aussie Blue Sky said...

caligrl, we may be seeing a lot more of Von Flea chatting about ethics in the media. With the book deal she can afford him now. I hope that now that she has this big line of credit she can release the Personnel Board to actually attend to the outstanding ethics complaints (if they can remember where they hid them).

CelticDiva said...

Anon...

It's one thing to disagree with someone, it's another to be insulting.

Anyone who knows Phil would never accuse him of being a "shill." That's utterly ridiculous! He has made many important contributions to exposing Palin for who she really is through his blog AND through the extensive work he's done with outside media.

My disagreeing with him doesn't detract from the high regard in which I hold him.

Philip Munger said...

{{{{{CD}}}}}

DrChill said...

Hi- I'm the DrChill you quoted. (C4P isn't my regular home)
I was set to consider Svobodny's ruling fair and appropriate, until I read Deva's post.
Colberg, sent palin a copy of the state handbook/guide to ethics. There it gives examples of outside employment.
And yes, one wonders if 1 book deal or contract isn't "regular employment" then how about 4 per year, or one a month, Or 1 per week or one per day?

Svobodny's opinion changes prescedent. Department heads should be sayin right about now "Hey ! That means I can run my own business, do contract work etc ... so why couldn't I do that before?"
They might have to reprint the handbook, and change the powerpoint presentation.

http://www.law.state.ak.us/doclibrary/ethics.html

http://www.law.state.ak.us/doc/ethics/FAQsOutsideEmployment6-07.doc

BTW the PDF version of it is unavallable. ??

Philip Munger said...

Welcome to PA, Dr.C!

They sure don't say nice things about you over there at C4P, do they!

We're not required to say nice things here, either, just shoot for the truth. Something they find very challenging at C4P.

I'm hoping to get an opportunity to sit down and talk to Talis soon. Hopefully, he'll be willing to talk about this important issue.

Last time we had a talk, it was mostly about Tang Dynasty poets.

onejrkitty said...

Phillip:

"...but the department of law has determined that the book, somehow, isn't "outside employment."

Phil, who made this determination? Wasn't it the acting AG and what does he base his opinion on? Are we to just take Svobody (s) word for it? I don't trust that he has a sound legal basis for his opinion. Unless someone with no agenda ( pleasing Palin) gives me good law for why this book deal is not "outside employment" I will have to continue to object to the " ...somehow..." portion of your perspective.

I agree with not using the word "complaint", it is a misnomer,but I also need sound legal logic for an opinion issued by someone whose stated reasons leave a lot of legal logic to be desired.

"Again, I do believe a lot hinges on our being able to actually read Palin's contract with the publisher." I agree, but doubt this will ever happen.

MY PROBLEM is I cannot trust Sovobodny" ( or the current dept. of law) interpretation. I don't think we are getting an objective "clarification." Just like what's his names investigation into Troopergate resulting in a totally different result than Branchflower. Remember, Monegan's attorney Feldman wrote and published a beautiful analysis of why the other opinion was wrong and Branchflower's was correct. SORRY, CANNOT THINK OF THAT INVESTIGATOR'S NAME RIGHT NOW.

As a matter of fact, Jeff Feldman would be a good choice to go to for his ideas on the legality of Palin's legal right to this other employment. I would trust Feldman to give an objective and legally sound analysis.

onejrkitty said...

Ok, I am almost through for now.

From Celtic Diva's post, "The determination states that Palin's contract with HarperCollins does not qualify as "employment for compensation" because she is not receiving a salary or wages."

This is an example of the FOUNDATIONLESS LEGAL LOGIC of Svbody that tells me not to trust him. He is really stretching it with this kind of argument.

Also: " ... "the head of a principal executive department of the state" from engaging in "outside employment."l The Office of the Governor is a principal department of the state.2 Therefore, as head of that office, you may not be engaged in outside employment. We construe "employment" to have its ordinary meaning"

Celtic Diva is 100% on top of this and Svbody is ignoring this part of the statues in his "opinion" which I feel is legally worthless.

Phillip, is it possible someone has slipped something into your brownies?

Per Van Flea talking so much about Palin's book. Maybe this is just his way of getting sales started so she can pay him off though I wonder wonder wonder just how many hours he could have possibly spent on Troopergate for her.

As well, if Barrett (?) is Palin's attorney on the book deal and Svobody is the acting AG, then just why does she need any involvement from Van Flea? I would assume he is charging her for his time, but exactly what kind of work is he doing. He seems unnecessary here.

onejrkitty said...

Celtic Diva is also correct that Phillip is no shill for Palin. I dont know him as well as she does, but I gotta defend him on this one.

BUT I STILL THINK YOU ARE WRONG ON THE ABOUT LETTING HER WRITE THE BOOK !

Later People, dog has to go pee.

OH and seriously. Phillip can you talk to Jeff Feldman and get his legal perspective. Feldman is a very (legal) critical thinker -- I would REALLY LIKE TO HEAR WHAT HE HAS TO SAY ON THIS. Hugh Fleisher (sp) would be another good attorney to ask, if he is willing to discuss the issue.

Mary said...

Is there any "investigator" that would review an ethics complaint against Palin and determine "Yes, this has merit"?

Blue_in_AK said...

Anon at 4:10. You are completely incorrect in your assumption about Phil. I know the gentleman, and there's no way he's a Palin apologist. Bite you tongue.

Maeve said...

If you go here:
http://www.law.state.ak.us/doclibrary/ethics.html

You'll find everything you ever wanted to know about the current ethics act.

We have to file forms, not just for work that will pay us, such as a second job, but also for many volunteer positions, to avoid conflicts of interest and/or the appearance of impropriety.

We all have assigned ethics supervisors to whom we report and give our forms. They pass those forms up the chain of command. Approvals are had at each level until the division head or commissioner is reached (depends on the department).

The Governor's ethics supervisor is the Attorney General (actual or acting).

I really don't understand how they are justifying this by saying it isn't employment - but I understand why Van Flein is involved; he wants this to work because he (and his law partners) want to be paid the half million thy are owed by the Palins...

HarpboyAK said...

And I'm wondering when someone will file an ethics action because Piper Palin was selling lemonade and banana bread on State property (the Executive Mansion's front sidewalk) last Sunday when she doesn't hold a DEC Food Handler permit?

If the bread was baked in the Mansion's kitchen, that was another use of State property, but at least it was baked in an approved kitchen. ;^)

HarpboyAK said...

Oh, yeah, I forgot to add the URL for the Juneau Empire's photo of the illegal lemonade stand: http://juneauempire.com/stories/051109/loc_438614108.shtml

DrChill said...

Ahh I see that Palin's request was outside the normal procedural flow. Apparently to skirt the rejection she probably would have gotten. The ethics summary Palin got from Coleberg, and the one in the state law library

http://www.law.state.ak.us/doclibrary/ethics.html

on outside employment
http://www.law.state.ak.us/doc/ethics/FAQsOutsideEmployment6-07.doc

state dept heads can't HAVE outside employment including contract jobs.

Seems Palin would rather re-interpret the law than apply for a waver that might be denied.

Good Government Wanted said...

Thanks for your comment, DrChill. You make excellent points.

Question is: Who is going to file the ethics complaint???? Is there anyone with the courage to step up?

crystalwolf aka caligrl said...

This from UK lady @ Mudflats:
http://blogs.ajc.com/political-insider-jim-galloway/2009/05/16/from-the-state-gop-convention-sarah-palins-new-lawyer/

http://www.sourcewatch.org/index.php?title=Randy_Evans

Looks like GINO not wasting any time with using her "slush fund"!!!

the problem child said...

I'm of the view that if Palin wanted an "advisory opinion" as to the ethics problems of a book de al, she should have asked the Personnel board, not the AG. Could it be that she asked the PB and didn't get the answer she wanted? After all, those requests are supposed to be confidential if they come from state employees...

Anonymous said...

She is receiving millions of dollars to work as freelance writer for personal gain. What is so difficult to understand. Seems like you don't need a law degree to figure this out.