Frivolous Ethics Complaints: The Score Card, the Price Tag, and the Future of Ankle-biting

Yesterday the good governor tweeted:

It’s official: 13 ethics complaints against me & my office have now been dismissed by personnel board!

That sound you heard was the lachrymose ululations of ankle-biters everywhere.

They’re losing. They know it. The public knows it. And the Personnel Board is getting tired of their antics.

First, let’s look at yesterday’s decision on the dismissed McLeod allegations. Though Independent Counsel Michael Geraghty’s decision was released as one report (with two addenda), there were eight separate allegations packed into that “one” complaint, and there would have been more still if McLeod had had her way.

The two addenda were prepared after McLeod added allegations to her original complaint. And how did she add them? For the allegations dismissed in Geraghty’s second addendum, McLeod simply emailed him an article from CNN and an op-ed from the New York Times without additional comment. That was her “proof.” It was all so clear to Andree. She couldn’t imagine that others wouldn’t see it too.

McLeod would still be emailing him more “proof,” if Geraghty hadn’t finally submitted his report, and she’s furious that he “stopped” her from doing so:

McLeod said Wednesday that it’s troubling that Geraghty on May 14 requested she stop amending her complaint so that he could finish his work.

“When an attorney wants less information rather than more information during his investigation — that’s a sure tell-tale sign that they’ve already made up their minds to dismiss a complaint,” she said.

She got in eight separate allegations before Geraghty asked (begged?) her to stop amending her original complaint. Gov. Palin’s legal counsel, Thomas Van Flein, mentioned yesterday on the Eddie Burke show that he counts each allegation as a separate complaint because each one is a potential ethics violation. McLeod only needed one of them to stick in order for the headline to read “Governor Palin found in violation of the ethics law!” It doesn’t matter if the other seven allegations are tossed. It just takes one. In fact, to lump them all together as one complaint might actually be regarded as minimizing the magnitude of the “wrongdoing.”

And what were these eight separate complaints?

1. The press release announcing Gov. Palin’s VP selection was an improper use of state resources and time.
2. The governor’s press office improperly issued a clarification about her attendance at the National Republican Congressional Dinner.
3. State resources (press releases) were being used on SarahPAC.
4. The governor’s website collaborated with SarahPAC.
5. The governor’s attendance at the Vanderburgh County Right to Life event violated the ethics law by using state resources and time.
6. Gifts from the Vanderburgh County Right to Life organizers were an improper “enticement” or coordination with SarahPAC.
7. Gov. Palin improperly used state resources when Bill McAllister stated that Gov. Palin would not be attending the White House Correspondents Dinner.
8. State resources were used in setting up Bristol Palin’s job as ambassador for the Candies Foundation (because according to the New York Times’ op-ed that McLeod emailed as “proof,” the Candies Foundation contacted Gov. Palin’s office in order to get in touch with Bristol.)

Of course, all of these complaints were dismissed.

One can’t help but sympathize with Geraghty. His report is precise and constrained, but you get the impression that he’s just dying to write, “This is the stupidest f%$&ing thing I have ever been asked to investigate in my entire #%@* life! What kind of a &#@% idiot submitted this?” It’s as if he’s been asked to write a precise and detailed explanation of why a square peg cannot fit into a round hole.

He tried to be as straightforward as possible right off the bat:

It is important to note from the outset that the Ethics Act allows a public officer to pursue independent pursuits, provided those pursuits do not interfere with the full and faithful discharge of the officer’s public duties. The Act also provides that there is no substantial impropriety if the alleged action or influence would have insignificant or conjectural effect on the matter. It is Independent Counsel’s opinion that considering the facts as alleged to be true, the conduct involved was not improper, let alone a substantial violation of the Ethics Act.

[...]

Likewise, the use of state staff, time and resources to clarify a misunderstanding regarding Governor Palin’s participation as a keynote speaker at a National Republican Congressional Committee dinner was not improper under the Ethics Act, let alone a substantial violation.

The words – “not improper under the Ethics Act, let alone a substantial violation” – are used repeatedly.

As I noted last week, the Executive Branch Ethics Act is being interpreted weekly, and precedent is being established in real time as decisions are issued on these frivolous complaints. I think Geraghty’s latest opinion sets good precedent.

Two snippets stand out for me:

SarahPac is not affiliated with the state of Alaska, and does not otherwise invoke the Governor’s office; except, of course, that it is the political action committee of Sarah Palin, Governor of Alaska. It is not endorsed by or represented by the state of Alaska or the Governor’s office.

Perhaps that will preclude further ethics complaints about the validity of SarahPAC, but I doubt it.

And then there was this:

The [Ethics] Act does not preclude Governor Palin’s involvement with the Vanderburgh County Right to Life organization. Governor Palin’s speech to the organization addressed her personal interest in and identification with the organization’s goals. While the interest may also have political implications, since Governor Palin has publicly expressed her support of the “Pro-Life” issue, the Ethics Act does not prevent her from engaging in these other pursuits on her own time and at the expense of SarahPac.

Geraghty was simply affirming his finding for the Martin allegation. If the governor decides to pursue a national campaign (I’m not saying that she will, just speculating) or if she decides to campaign in the Lower 48 for other candidates next year, this establishes an important precedent against future ethics complaints.

There was one section of the report that made me cringe. Geraghty, for some perverse reason, actually baited McLeod into filing another complaint. It had to do with the complaints listed in the first Addendum. McLeod asserted that there was collaboration between SarahPAC and the governor’s office. Her “proof” was the fact that three press releases issued by the governor’s office were posted on the SarahPAC website.

If there is a legal award bestowed on a lawyer who exercises patience and fortitude in the face of mind-numbing stupidity, I urge Michael Geraghty’s colleagues to submit the following paragraph on his behalf to the award’s committee for their consideration:

The information on the SarahPac website that McLeod points to are press releases issued by the governor’s office. The press releases are disseminated to the press for the purpose of providing public notice of the topics at issue. Information on the SarahPac website that mirrors press releases provided by the Governor’s office shows only that SarahPac received the press releases. Because the information is released to the press, any person or organization can access and disseminate it. In addition, press releases are posted on the State’s official web site for the Governor. It is not evidence of any coordination between the Governor’s office and SarahPac.

If posting the governor’s press releases is “proof” of collaboration, than the Anchorage Daily News, C4P, and countless other media organizations are collaborators.

It was Geraghty’s conclusion on these allegations of “collaboration” that made me cringe:

Ms. McLeod is a repeat complainant; she is familiar with the process and procedures of the Board. We have chosen to construe her allegations narrowly; in our view, she has not asked whether there is improper coordination going on between the Governor’s office and SarahPac; her complaints are premised on her belief that there is coordination, and she has submitted “proof” of that collaboration and coordination. For reasons noted, we respectfully disagree.

As noted, Ms. McLeod is familiar with the procedures and she is free to file a different complaint asking that question should she choose to do so. For the reasons stated, we have elected to construe her complaint narrowly, however, and we stand behind the conclusions expressed.

....If the Board would like us to undertake an analysis of the bigger question, we will be happy to do so.

Anyone want to bet how many days before we have a new ethics complaint from McLeod on the “bigger question”?

And while she is busy filing, what are the known ethics complaints still outstanding?

We have Linda Kellen Biegel’s Arctic Cat jacket complaint, Chatman’s complaint alleging that the governor’s legal defense fund is unethical (you know, the fund established to pay the legal bills she accumulated because of all of these frivolous ethics complaints), and McLeod’s January complaint against Bill McAllister and Kris Perry.

We have no idea how many other complaints have been issued. Those are just the known complaints.

Let’s clear something up right now.

It’s been suggested that Gov. Palin “chose” to use her personal counsel to defend herself instead of using the Attorney General or the Department of Law, and therefore it’s her own fault that she has accumulated over half a million dollars in legal debt.

That is complete balderdash.

The governor cannot use the AG to defend herself against ethics complaints. The AG is responsible for prosecuting violations of the law. But in the case of the governor and ethics complaints, the AG is removed from doing so by the law, and an independent counsel (or investigator) is contracted by the Personnel Board to act in place of the AG:

AS 39.52.310. Complaints.

(c) If a complaint alleges a violation of AS 39.52.110 - 39.52.190 by the governor, lieutenant governor, or the attorney general, the matter shall be referred to the personnel board....The personnel board shall retain independent counsel who shall act in the place of the attorney general under (d) - (i) of this section, AS 39.52.320 - 39.52.350, and 39.52.360(c) and (d). Notwithstanding AS 36.30.015 (d), the personnel board may contract for or hire independent counsel under this subsection without notifying or securing the approval of the Department of Law.

[emphasis added]

By definition, an ethics violation is elevating a personal interest above one’s state interest and duties. The government cannot defend a public official on an allegation that he/she violated state law in his/her personal capacity. In fact, it would probably be an ethics violation for the governor to use a state AG to defend her personal interests because that would constitute a misuse of state resources for personal gain. (However, that doesn’t preclude the possibility that the state could later indemnify a public official, if that is deemed lawful.)

So, yes, Gov. Palin must pay for her personal legal defense, and each allegation costs her money. The imbecilic ankle-biters smugly ask, “If she didn’t do anything wrong, why does she need legal counsel?”

When you are charged with a crime or a violation, you must defend yourself. Hiring a lawyer does not equate guilt. When you’re hit with an ethics complaint, you can’t just close your eyes and hope it goes away. You hope that the independent counsel will advise that the complaint be dismissed, but you need to prepare yourself for the possibility that the complaint will be accepted for investigation. If that happens, you need to respond. If the allegation is without merit, you need to prove it, and you need a good lawyer to do that.

The governor often mentions the ethics complaint filed under the name of a soap opera character. It was the governor’s legal counsel who discovered that the complaint wasn’t filed by a real person. Her attorney had to file a motion pointing this out and only then did the Personnel Board ask the complainant to come forward and verify his/her identity. He/she didn’t, and the complaint was dismissed. If the governor had no legal counsel working for her, this fake complaint would have gone forward.

So, yes, personal legal counsel is required; and, no, the AG can not defend the governor.

There is another allegation the ankle-biters keep making. They claim that the Personnel Board members owe their jobs to the governor and are afraid of unemployment if they rule against her.

No, actually, they don’t “work” for the governor or the state. The law actually mandates that they cannot be state employees:

AS 39.25.060. Personnel Board.

(a) The personnel board is composed of three members appointed by the governor and confirmed by the legislature meeting in joint session. The term of office of a member is six years. A vacancy in an unexpired term shall be filled by appointment by the governor for the remainder of the term. The appointment is subject to confirmation in the same manner as a full-term appointment.

(b) Members of the board may not be employees of the state. Not more than two members of the board may be members of the same political party.

(c) A board member may be removed by the governor only for cause.

(d) A member of the board may receive a per diem allowance and transportation expenses incurred in carrying out the member’s duties.

[emphasis added]

Not only are they not state employees, they don’t even get a salary. All they get is a per diem allowance and transportation expenses. The state of Alaska has dozens of boards and commissions, and most of them are essentially volunteer boards. There are the really “sexy” boards that come with nice salaries and/or prestige – like the AOGCC, the Fish and Game boards, the UA Board of Regents, etc. – and then there is the Personnel Board. It’s an unpaid and thankless job.

It’s also a “bipartisan” job. As noted in the law, “Not more than two members of the board may be members of the same political party.”

The current three members were all appointed by Gov. Murkowski (and you all know how friendly Sarah Palin was with the Murkowski administration). One of the members originally appointed by Murkowski was reappointed by Gov. Palin. This is not a board “hand-picked” by Sarah Palin. They don’t work for Sarah Palin.

The real power isn’t even with the Personnel Board really. It’s with the independent counsel they hire to review each complaint. And independent counsel means independent. They are charged with reviewing the law. Timothy Petumenos, the independent counsel who wrote the opinion in the Troopergate case, is a well known Democrat. He did his job fairly and kept politics out of it.

The power in all of this is out of the governor’s hands. The independent counsel is picked by the Personnel Board, and Gov. Palin can not “fire” the Personnel Board capriciously. She can only have them removed for “cause.”

And, frankly, after reading this article by Sean Cockerham from the ADN, I think these board members would be delighted if Gov. Palin fired them. They don’t get paid for their work, and their work has increased exponentially with all of these frivolous complaints. It sounds as if they have had enough:

The personnel board members decided at a Wednesday meeting to work with the attorney general’s office on how to make public the cost of addressing each ethics complaint, without violating the board’s confidentiality rules.

“We’ve spent pretty close to about a third of a million dollars, and it’s getting to be really expensive,” said Al Tamagni, a member of the board.

[...]

One of the personnel board members, Tamagni, last fall asked a state attorney if the board could charge attorney fees for Alaskans who file “a frivolous or meritless” ethics complaint. It’s not clear how the state would judge a complaint frivolous, but charging for them would require changing the law.

Personnel board members spoke Wednesday about possibly pursuing changes in the law regarding their ethics complaint procedures -- such as changing the “thresholds for investigations.”

Ethics complainants in the audience asked board chair Debra English for detail after the meeting, but she curtly brushed them off, saying the meeting was over and she wasn’t going to say more.

English also refused to answer when a Daily News reporter asked what the board had in mind. She said the reporter should have come before the board and given public testimony in order to get any questions answered from its members.

See what I mean? Sounds like they’re secretly praying, “Fire me, Sarah! Please!”

I wonder if English’s “curtness” and Tamagni’s interest in establishing “thresholds for investigations” had something to do with Valerie Henning.

Valerie Henning told the board that fear of a backlash has prevented her from filing a complaint against the governor’s practice of collecting per diem for time spent at her home in Wasilla. Henning’s husband, Zane, earlier had an ethics complaint dismissed by the board. His complaint alleged Palin violated ethics law by holding national television interviews concerning her run for vice president from the governor’s office.

[...]

Valerie Henning tried to get board members to suggest some alternative to making the ethics complaint, saying “I’m afraid of retaliation, basically.”

You remember Val. She was the stupid, creepy, crazy woman who called into Eddie Burke’s show last week. She’s worried about facing some hypothetical “retaliation” if she were to file a complaint against the governor. She wants the complaint filed. Everyone knows that she wants it filed, and she’s announcing that she wants to file it. But she’s afraid of “retaliation” if people know that she was the one who filed it. Sorry, but I think the cat’s already out of the bag, Val.

If she didn’t want any possible “retaliation,” then she could simply file the complaint and not publicize it. Confidentiality works both ways.

Listening to this moron would make anyone “curt.” And listening to someone declare that they want to file an ethics complaint because a state employee claimed the per diem allowance that she was legally entitled to is enough to make anyone declare, “I think we need to talk about thresholds for investigations!” Thresholds as in: We only investigate things that are actually against the law. We can clear this up right here and now, Val. Your complaint is stupid. Don’t file it.

This would be funny if it weren’t so damn expensive and hurtful to the governor and her staff. And it isn’t over yet. These ankle-biters won’t stop. It doesn’t matter that they are 0-13 so far.

We should expect even more unpleasantness from them. They don’t care how much it costs the state or the governor’s staff and family.

Andree McLeod, an Anchorage activist who has filed multiple ethics complaints against Palin and her staff, said after the meeting that the board is trying to squash accountability by saying it costs too much.

“The whole way to mitigate all this is for Palin to behave ethically,” said McLeod, who filed the complaint that was dismissed by the board on Wednesday.

It’s like a wife-beater saying, “She wouldn’t have any bruises if she’d just stop making me angry.”

Not only have these people lost touch with reason and proportion, they also seem to have misplaced that instinctual sense of shame which, if functioning properly, prevents a sane and self-respecting person from making an ass of himself in public.

Their complaints won’t stop. It’s about Sarah Palin. It’s not about ethics. It’s politics. They won’t stop. And because they won’t stop, the legal bills won’t stop either. We need to help her with them. And by “we” I mean all of us, not just Alaskans.

All of these new frivolous complaints are a result of Sarah Palin’s acceptance of the GOP’s nomination to serve as our vice president. She offered to serve us. She considered it an honor to do so. Sadly, her offer was rejected this time around. She went home to work for the people for whom she has always served, but the campaign followed her.

But make no mistake, it was her desire to serve us nationally that precipitated these frivolous complaints which, at the end of the day, are nothing more than an attempt to discredit and bankrupt Sarah Palin.

She was ready to take a stand for us. It’s time we take a stand for her. Donate.