On Friday, the Senate Judiciary Committee held its second hearing on a bill challenging a new regulation that authorizes the Department of Law to defend the governor, lieutenant governor and attorney general (AG) against complaints of ethical violations. Issued by Gov. Mike Dunleavy last November, it’s like allowing them to be represented by public defenders because they can’t afford their own attorney.
And their legal expenses will be paid by the state even if they’re caught doing something wrong.
SB 165 is a simple, smart way to fix the problem. But it’s doubtful the Legislature is up to the task. On two prior occasions, they let Dunleavy dip into the state treasury to pay the damages resulting from his misdeeds.
On his first day in office, he violated the constitutional rights of hundreds of state employees by overtly implying they’d lose their jobs if they refused to sign what amounted to a loyalty pledge. Two psychiatrists from the Alaska Psychiatric Institute and a Department of Law attorney who refused to follow those instructions were fired.
Two separate lawsuits were filed. In the psychiatrists’ case, U.S. District Judge John Sedwick ruled the loyalty pledge violated their First Amendment rights. And because “any reasonable government official” should have recognized that, he found Dunleavy and his first chief of staff personally liable.
In both cases, state attorneys negotiated an agreement in which the state paid the plaintiffs $850,000 in damages.
Former AG Jahna Lindemuth called it a “sweetheart deal.” She argued that Dunleavy and Treg Taylor, his current AG, violated the state constitution and the Alaska Executive Branch Ethics Act, the same law that the sponsors of SB 165 seek to amend.
Having the state pay personal expenses incurred from gross negligence or incompetence is at odds with a constitution that prohibits legislative appropriations “except for a public purpose.”
“Fortunately for the public” Lindemuth wrote, “the Alaska Constitution provides a check on the ability of the executive branch to gain personally in this manner. The state cannot pay this settlement without an appropriation by the Legislature.”
But the legislators collectively failed their constitutional duty by passing budgets that included $850,000 for the settlements.
In recent testimony before the Senate Judiciary Committee, Lindemuth applied the same arguments in support of SB 165. She also believes it’s a conflict of interest to allow the Department of Law to defend the governor, lieutenant governor or AG against an ethics complaint because the AG is designated the primary enforcer of the Executive Branch Ethics Act.
Taylor disagrees. Part of his argument is that the three executive officers routinely act on the advice or prior opinions of the department’s ethics attorney. It’s only when they act contrary to that advice that it’s “not in the public interest for the Department’s attorneys to represent them.”
But before asking state employees for a pledge of loyalty, Dunleavy didn’t bother seeking advice from the department. Taylor defended bailing him out anyway.
He wouldn’t be the first AG under Dunleavy to ignore an obvious conflict of interest. He was a deputy AG when his boss took that dubious honor. Ten months after the APA psychiatrists sued Dunleavy, then-AG Kevin Clarkson supported the change to the Executive Branch Ethics Act that Dunleavy issued last November.
That was soon followed by his failure to recuse himself from issuing an opinion on the application to recall Dunleavy. The conflict of interest in that case was readily apparent. Clarkson’s job was at risk if Dunleavy was thrown out of office. Had he issued the opposite opinion, Dunleavy might have fired him.
Ultimately, the state Supreme Court overruled Clarkson. Why Dunleavy was able to avoid facing a recall vote is another story. But the lesson is the same. The AGs working for him can’t be trusted to put the state’s interests ahead of his personal interests.
Passage of SB 160 doesn’t mean the governor, lieutenant governor, or AG will be personally liable for legal expenses when defending against allegations that prove to be without merit. Per current regulations, they are entitled to reimbursement.
But given the precedent set in the wrongful firing cases, the failure to pass the bill and override a likely veto by Dunleavy means he and future governors will enjoy the unconstitutional benefit of state sponsored legal defense fund for their unethical conduct.
• Rich Moniak is a Juneau resident and retired civil engineer with more than 25 years of experience working in the public sector. Columns, My Turns and Letters to the Editor represent the view of the author, not the view of the Juneau Empire. Have something to say? Here’s how to submit a My Turn or letter.
