How controversial pardon made it through

Posted: Wednesday, February 21, 2007

Before Gov. Frank Murkowski decided to pardon Whitewater Engineering for criminally negligent homicide in the waning days of his administration, he heard from only two Alaskans in favor of the pardon.

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Both men were in prominent positions, however. One was a state legislator from Juneau, while the other was in charge of the Alaska Marine Highway System and a former legislator himself.

The information the two provided may have been misleading, even though it contained technically true elements; and it may have given Murkowski a false impression of the company and the incident.

Equipment operator Gary Stone died April 15, 1999, in an avalanche near Cordova while working for Whitewater.

The first advocate was Bruce Weyhrauch, at the time representing Juneau as a Republican in the state House of Representatives. He also was an attorney representing Whitewater in its quest for a pardon.

Weyhrauch was barred by law from representing someone for pay before the state Legislature; but he could legally lobby the governor, head of a different branch of government.

Also endorsing clemency for Whitewater was Robin Taylor, a controversial former Republican legislator from Wrangell who served as deputy commissioner of the Department of Transportation and Public Facilities and oversaw the state ferry system.

Weyhrauch wrote to Murkowski that Whitewater had paid its federal Occupational Safety and Health Administration fine and restitution to Stone's family.

While that is true, Whitewater continued to owe the state $150,000 in unpaid fines, which with interest had grown to about $250,000 in the six years since the conviction.

It is impossible to jail a company, so the punishment the court imposed for Stone's death was a fine. Now, with the pardon, the unpaid fine has been dropped and cannot be recovered by the state.

Weyhrauch said he was unaware Whitewater still owed a criminal fine when he submitted the application. He said he did not research the case, but only prepared the paperwork and submitted it to the governor.

"What I included was what I got from Whitewater," he said.

Had he known of the outstanding fine, Weyhrauch said, he'd have felt obliged to include that information in the application.

It is the responsibility of the governor's office, Weyhrauch said, to research a case before granting a pardon.

"This was all the governor's doing," he said. "The governor just did it on his own."

Weyhrauch said he never talked with either Murkowski or Chief of Staff Jim Clark about the request for a pardon.

Governor's office records show that the only person who did lobby Murkowski for the pardon was Taylor.

Taylor warned Murkowski that allowing the conviction to stand would "send a chilling message" to construction companies and other companies in the state.

"I certainly heard about it from our old friends within the timber industry," Taylor told Murkowski in an e-mail. Both Taylor and Murkowski have roots in the once logging-intensive Ketchikan-Wrangell area.

Taylor also suggested that the state itself may have been at fault in Stone's death.

"The Alaska Department of Fish and Game played a significant role in this incident for which they have never been held accountable," Taylor wrote.

State records show that a fisheries biologist who contacted the company when it was working in a stream without a permit was questioned by some workers about the avalanche danger.

The biologist told them they were working in an area with evidence of past avalanches, but that avalanches were not his expertise.

Whitewater Engineering "has consistently pointed the finger of responsibility to others, ranging from (the fisheries biologist) to Gary Stone, the victim," according to the state's sentencing memorandum to the judge in the case.

"It is not the responsibility of the workers to figure out when it is safe to work or when it is unsafe to work."

Company owner Thom Fischer of Bellingham, Wash., told the Empire that Whitewater was concerned with safety.

"Everybody has to care about safety. That's what I stand for," he said.

In the clemency application submitted by Weyhrauch, Fischer wrote that Stone's death had been a "tragic accident," but the company had aggressively improved its safety efforts since then.

State prosecutors and a judge concluded that it was an accident that would have been avoided if Whitewater had followed the law.

"The basic crux of the extreme negligence that (Whitewater Engineering) exhibited is that they were well aware of the potential for avalanches in the area and they did nothing significant about it."

Taylor assured Murkowski that Stone's death had been an accident and that Whitewater should never have been convicted.

"If ever compassion and common sense should prevail, this is such a case," Taylor wrote.

Weyhrauch has since donated his fee from the case to the Alaska Women's Resource Center.

"This was such an astonishing move by the governor," Weyhrauch said.

• Pat Forgey can be reached at patrick.forgey@juneauempire.com.



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