UPDATED: Latest Ethics Nonsense: AP Gets It Wrong; Governor Palin Responds

Rachel D'Oro of the Associated Press has a story on Kim Chatman's ethics complaint about the Alaska Fund Trust with a big, splashy headline: "Palin implicated in ethics probe."*

The practical effect of the ruling on Palin will be more financial than anything else. The report recommends that Palin refuse to accept payment from the defense fund, and that the complaint be resolved without a formal hearing before the Alaska Personnel Board.

However, it seems that the report "obtained" by the AP is not the final one from the Personnel Board. The governor just tweeted:

Re inaccurate story floating re:ethics violation/Legal Defense Fund;matter is still pending;new info was just requested even;no final report

And this was just posted on Gov. Palin's Facebook page:

I cannot verify the validity of this claim. There is no final report. The Investigator is still confidentially reviewing this matter. It appears suspect that in the final days of the Governor's term, someone would again violate the law and announce a supposed conclusion before it is reached.

Meghan Stapleton
Palin Spokesperson

UPDATE: The report via the ADN. Of note on the last page (text is bolded in the original):

However, this decision is confidential pursuant to AS 39.52.340, unless confidentiality is waived by the governor.

Given the governor's tweet and Meg Stapleton's statement, it seems pretty clear that confidentiality was not waived by the governor.

UPDATE II: From the governor's Facebook page:

"The resolution of the Trust Fund is not final. I have been working with the investigator regarding supplemental information. The matter is still pending. Whatever you have seen was released in violation of law. There has been no Board finding of an ethics violation and there is a detailed legal process to follow before there is a final resolution."

Thomas Van Flein
Private Attorney for Sarah Palin

UPDATE III: From the AP story:

John Coale, a Washington lawyer who helped set up the fund, called the probable cause finding "crazy," adding that if upheld, it would mean that no governor could ever defend themselves against frivolous ethics complaints.

"If this complaint is true, there's no way to defend yourself" as governor, Coale said. "Anybody can keep filing ethics complaints and drive someone out of office even if you're a nut."

Coale said that unlike other states, Alaska's governor has no legal counsel's office to defend the governor from allegations brought against the governor in her official capacity.

Coale said he recommended creation of the legal defense fund, a common practice in Washington. The Web site for the Palin fund cites similar accounts created for Hillary Clinton, John Kerry and other prominent politicians.

UPDATE IV: From the governor's Facebook page:

"All options are open in terms of legal remedies. It is a clear violation of Alaska law that Mr. Daniel explicitly reviewed with Ms. Chatman prior to her illegal actions. We will be contacting the appropriate authorities for review and action."

Thomas Van Flein
Private Attorney for Sarah Palin

UPDATE V: From Thomas Daniel's report:

In sum, I find probable cause to believe that payment of the governor's legal fees by the Alaska Fund Trust will violate the Ethics Act prohibition against a public officer accepting gifts intended to influence performance of official duties.

You'll notice that Daniel found no violation because no payment has been made. Governor Palin hasn't accessed any of the money from the Alaska Fund Trust. Daniel also made an interesting recommendation as to how Governor Palin can pay for the cost of the frivolous complaints that have been dismissed:

I also recommend that she seek reimbursement from the state for the cost of defending the ethics complaints that have been dismissed.

*The AP changed the headline for their story. It now reads: "Investigator rules against Palin in ethics probe."

UPDATE VI: In the comments, howIroll explains why the AP's new headline is inaccurate and misleading:

That new headline by AP is equally misleading. The investigator doesn't "rule" on anything. He's like a prosecutor in a criminal case (although an ethics complaint is in NO WAY criminal). He investigates an alleged violation or "offense" and issues a report or "summons." It only ALLEGES a violation---it is in no way dispositive. Basically he is suggesting that the Personnel Board take the matter up for hearing (like a magistrate finding probable cause and then certifying a case to the Grand Jury). ONLY the investigator's findings are contained in his report; there is no evidence from the Governor's team. Once her team gets the report, they have an opportunity to assess it for proper application of the law, complete and accurate fact finding, etc. The governor's team can then gather their evidence and questions and approach the investigator who can then review her materials and evidence and either amend/modify his report or stand on his original findings and pass the matter onto the Personnel Board for HEARING (trial). The Board may either hold a hearing (call witnesses, etc. as in a "trial) and issue a ruling OR vote to dismiss as a matter of law upon a motion filed and subsequent argument by the Governor's attorney.

As Mr. Van Flein indicated, this report is but a first step in a very long process, just as a summons is the first step in a very long trial process. There are "miles to go" before there is any "ruling," which would be done by the Board, not an investigator.

UPDATE by RAM: It is being incorrectly reported that Gov. Palin was found to have violated the Ethics Act. This is a complete lie! All you have to do is read the report:

In addition, my role as independent counsel for the personnel board is only to decide whether there is probable cause to believe a violation of the Ethics Act has occurred – not to reach a definitive conclusion. See AS 39.52.320. The ultimate determination of whether the governor has violated the Ethics Act can only be made by the personnel board after a formal heating and a report by the hearing officer. See AS 39.52.360-370.

In sum, I find probable cause to believe that payment of the governor’s legal fees by the Alaska Fund Trust will violate the Ethics Act prohibition against a public officer accepting gifts intended to influence performance of official duties.

[...]

I can recommend that corrective action be taken to resolve this complaint without the necessity of a formal hearing on the matter. See AS 39.52.330. My recommendation is that the governor should refuse to accept payment of her legal fees and costs from the Alaska Fund Trust and withdraw her authorization for the trust to be recognized as her “official” legal defense fund. I also recommend that she seek reimbursement from the state for the cost of defending the ethics complaints that have been dismissed.

I also recommend that the legislature consider amending the Ethics Act to require the state to reimburse a public official for reasonable legal fees and costs incurred to defend against an Ethics Act complaint that is dismissed. [emphasis added]

Did you get that? The independent investigator, Thomas Daniel, is not finding the governor in violation of the Ethics Act. Only the Personnel Board can make such a ruling, and Daniel actually recommends that no ruling is necessary. Gov. Palin has not accepted one dime of money from the legal defense fund yet. How can she be in violation of the Ethics Act for something she hasn't even done yet? You can't charge her with a violation for a future act! The language Daniel uses is future tense "will violate" -- not violated.

Daniel recommends not accepting the funds and instead having the state pay for the legal bills incurred by the dismissed complaints (which is basically all of them). Ordinary Americans from all over the country (and Alaska) gave money to pay these bills, but now the people of Alaska will be stiffed with the bill and forced to pay for Andree McLeod's hobby and obsession.

I'm not at all convinced that the Alaska Fund Trust will be forced to disband and return the money. I'm sure Gov. Palin's attorney will counter this report. I'm sure it will be resolved. But if it does have to be disband and the money returned, then guess what? We'll set up a new one for Sarah Palin as just a plain old citizen. And we'll raise even more!

Congratulations once again to the nutters in Alaska who have turned the state's Ethics Act into a joke. I sure hope that the Democrats up there fix the crazy loop holes in the Executive Branch Ethics Act before any Democrat is elected governor because anyone from anywhere can file an ethics complaint against the governor of Alaska without paying a penny, and there are a lot of people just itching for a tit for tat on this.

UPDATE VII: (h/t TommyReport) From Chris Cillizza at The Fix:

Randy Evans, the attorney who helped Palin set up the Alaska Trust Fund, released a statement moments ago dismissing the allegation that there was any impropriety in its founding as "absolutely untrue".

Added Evans: "It was specifically patterned after well recognized trusts of prior Presidential candidates as well as high profile public servants. As with other public servants, there is no impropriety in the creation or operation of such a trust and any suggestion to the contrary is candidly absurd."

Evans, a partner in the firm of McKenna, Long & Aldridge, is a well known Republican attorney, having served as outside counsel to then Speakers Newt Gingrich (Ga.) and Dennis Hastert (Ill.).

UPDATE VIII: KTUU has Kristan Cole's statement:

"I haven't seen any report and as a matter of fact was just asked for additional information as of yesterday, July 20, 2009," Cole wrote. "Just a reminder that this legal expense fund was thoroughly vetted by numerous attorneys from Alaska to the East Coast. The purpose of the Trust is to help the Governor with the crushing legal fees she has incurred solely because of her public service."

UPDATE IX: Governor Palin issued the following statement on her Facebook page:

"I find the notion that I have taken any action pertaining to the legal defense trust fund misguided and factually in error. I am informed that this fund was created by experienced attorneys in DC and was modeled after other similar funds established for senators and others. The fund itself was not created by me nor is it controlled by me. Neither I nor my lawyer has received a penny from this fund, and I am informed the Trustee was withholding any action or payment pending final resolution with the Personnel Board. This is the hallmark of legal compliance and prudent conduct.

In short, I have not 'acted' relative to the defense fund and it is misleading to say I have. I have no doubt that the Trust will welcome guidance by the Board, as do we all, but it is my understanding that this matter was not resolved and the complainant's violation of law has served to mislead the public and prejudice a fair review of this matter."

Sarah Palin

UPDATE X: At Texas4Palin.blogspot.com, Josh Painter questions how independent an investigator Thomas Daniel really is:

So who is Thomas Daniel, and how "independent" an investigator is he?

Daniel is a lawyer employed by the firm of Perkins Coie, LLP. He contributed $1,000 to Democrat John Kerry's 2004 presidential campaign. Daniel has also donated to Alaska's Democrat U.S. Senator Mark Begich.

Perkins Coie, as it turns out, just happens to have Barack Obama as a client. More on Perkins Coie here:

Perkins Coie often partners up with the ACLU and groups like MALDEF on such issues as immigration. Much of the political heavy lifting is done by former Kerry/Edwards 2004 General Counsel Mark Elias and Firmwide Chair, Political Law Practice Robert (Bob) Bauer. Both gentleman’s resumes read more like that of DNC staffers than of lawyers at a firm with the motto "Legal Counsel to Great Companies."

And speaking of the leftist ACLU, guess which attorney is a member? That's right. Thomas Daniel, who as an investigator is anything but independent. He's a liberal Democrat who is a member of the leftist ACLU.