Did Wheeler Commit Fraud and Extortion at the February 16th 2010 Anchorage Assembly Meeting?

[The image above, courtesy of Henkimaa, is satire. The post below isn't satire, it is informed speculation. Part of it is based upon my update to yesterday's post on two issues, and has been placed into its own article here at the request of friends.]

Mel Green has written another great article on what is now being termed by some as Sullygate. Mel has posted it at Henkimaa and at Celtic Diva's Blue Oasis.

The foremost question in my mind, reading through Mel's thorough chronology, regards Anchorage Municipal attorney Dennis Wheeler. It appears to me, that unless he has seen some written document that has not yet been made public, he may have committed a Class B felony by purporting at a public meeting an actual contractual situation between the Sullivan Family Trust and the Municipality of Anchorage existed at the February meeting at which the vote took place. At very least, it is serious enough malfeasance to question his ability to professionally represent the MOA in any fiduciary matter.

Since the time Mayor Wuerch was strongly advised against continuing an illegal relationship with the Sullivans, by continuing to accept their small amounts of money in return for a later, far larger payout, this relationship has clearly been in violation of State law. Wheeler, by purporting to the Assembly in February that Wuerch's disregard of advice from employees of the Municipality and of Aetna back in 2002 to simply return the money to the Sullivans they then held, constitutes some kind of legally binding contract, appears to me to have been malfeasance or worse. Since Wheeler advised giving Sullivan such a large amount of money - over $170,000 more than the Sullivans had handed over to the municipality, I believe Wheeler's recommendation may be the most serious kind of fraud.

Alaska Statute 11.46.180, Theft by Deception, clearly states that:

a) A person commits theft by deception if, with intent to deprive another of property or to appropriate property of another to oneself or a third person, the person obtains the property of another by deception.

(b) In a prosecution based on theft by deception, if the state seeks to prove that the defendant used deception by promising performance which the defendant did not intend to perform or knew would not be performed, that intent or knowledge may not be established solely by or inferred solely from the fact that the promise was not performed.

(as the pecuniary aspect of this - $170,000 of taxpayers' money - is not "having no pecuniary significance," section (c) of AS 11.46.180 does not apply here.)

Some might argue that Wheeler's appearance before the assembly, and his not objecting to Assemblyman Patrick Flynn's statement about the possibility of a lawsuit against the City by the Mayor, knowing what Wheeler knew if there indeed is not a written contract, also constitutes a violation of AS 11.41.520 Extortion. By not explaining that Sullivan has no basis for a credible lawsuit against the Municipality, Wheeler may have abetted the extortion of $170,000 from the taxpayers, by allowing Flynn's statement to become, as AS 11.46.180 describes it, "A threat or suggestion to perform any of the acts described in (a) of this section includes an offer to protect another from any harmful act when the offeror has no apparent means to provide the protection or when the price asked for rendering the protection service is grossly disproportionate to its cost to the offeror."

The closest I can find of something similar in civil case law is the case between Delta Junction and Allvest, when the city backed out of a very detailed written contract between the City and Allvest. Allvest won. That case cites a lot of other Alaska case law regarding contracts between municipal entities and their business partners. Nowhere is there a case remotely similar to this one, where Wheeler seems to be purporting that Sullivan Trust could claim in a lawsuit that the MOA actually is an insurance company, even though it isn't and the trust had its own responsibility to know that. Such a claim would get them thrown out of court immediately.

It doesn't appear that the "trust" was set up back when the elder Sullivan was about to leave office. When it was set up, though, the person or firm responsible for setting it up had at least as much obligation to assure that the relationship between the MOA and the trust was legal, as the MOA itself had to sustain a legal repository for the monthly intake of funds from a representative of the trust. Wheeler should have known this, and should have clearly stated that at the February 16th meeting.

The sooner Wheeler is investigated by the State of Alaska Department of Law Office of Special Prosecutions, the better.

There is no legal contract.

There never was, and once Wuerch went against solid advice, and failed to bring the matter back before the appropriate bodies, all subsequent actions may have been clearly illegal.

The money appears to me to have been knowingly extorted from the taxpayers of Anchorage by Dennis Wheeler's intentional misrepresentation of the true nature of the legality of the arrangement between the Sullivan Trust and the MOA. Once the money changed hands, Wheeler was possibly a party to at least two Class B felonies, in my opinion.