New rule could put state on defense when an Alaska governor is accused of an ethics violation

Ten years ago this summer, Sarah Palin called news media to her Wasilla home and announced she would resign as governor.

Explaining her decision, Palin gave a variety of reasons, including that she felt financially and personally embattled by a host of ethics complaints. Under state law, she had to pay for her own legal defense.

“It’s pretty insane — my staff and I spend most of our day dealing with this instead of progressing our state now. I know I promised no more ‘politics as usual,’ but this isn’t what anyone had in mind for Alaska,” she said at the time.

On Tuesday, the Alaska Department of Law unveiled a plan that would change the situation Palin faced. Now, the state of Alaska may pick up the tab.

Under a proposed regulation now out for public comment, the attorney general could direct the Department of Law to defend the governor or lieutenant governor if an ethics complaint is filed against them. The attorney general would have to state in writing that the defense is in the state’s best interest.

The same proposal would allow the Department of Law to defend the attorney general with similar written determination by the governor.

Cori Mills, senior assistant attorney general with the Alaska Department of Law, said by email that the proposal came about after the department began reviewing the ethics-complaint procedure “several months ago.”

Mills’ statement, prepared in advance, did not directly answer questions about whether ethics complaints have already been filed against the governor, lieutenant governor or attorney general. Such complaints are confidential and not publicized.

As to what prompted the new regulation, Mills’ statement said in part, “In addition to streamlining the ethics complaint process, this proposed change would also help to mitigate the risk that the ethics complaint process is used to harass or becomes predatory.”

Mills wrote that because ethics complaints against the governor and lieutenant governor are investigated by the Alaska Personnel Board using independent counsel, it is not a conflict of interest for the Department of Law to defend them from complaints.

“Because the (Department of Law) has no part in (the complaint) process, this proposed regulation would enable the department to carry on one of its primary functions — that of acting as legal counsel for the governor, lieutenant governor and attorney general in their official capacities,” she said.

The governor and his former chief of staff, Tuckerman Babcock, have been sued by three former state employees alleging they were illegally fired. The regulation would not cover cases like that. It would apply only to ethics complaints under the Executive Branch Ethics Act.

Jahna Lindemuth, attorney general under former Gov. Bill Walker and now a lawyer representing clients in cases against the state, said by email that “this regulation should not be adopted,” in part because the attorney general is not just the governor’s attorney but in charge of defending the state.

“The attorney general is charged with representing the state of Alaska. The governor is not the client except to the extent he represents the state. Allowing the attorney general in his sole discretion to defend ethics complaints against the governor or lieutenant governor, or the Department of Law to defend the AG, is inappropriate and inherently inconsistent with the attorney general’s role. It is also an inappropriate use of state resources,” she wrote.

Michael Geraghty, attorney general for former Gov. Sean Parnell, feels differently. He said he is not sure he would characterize it as a fairly significant change in policy.

“I’m not offended by the fact that under certain circumstances, the attorney general … can provide an attorney just to give them advice,” he said.

Before becoming attorney general, Geraghty was an attorney on call for the Personnel Board to perform ethics investigations, so he has seen both sides of the issue.

When someone enters public office, he said, they become a target for ethics complaints.

“Many times, they’re just regular governmental actions that people misconstrue, either intentionally or otherwise,” he said.

In this case, the regulation would prevent a governor from being unfairly penalized by that process. He said he could imagine circumstances where the regulation could be abused, but the requirement for a written determination helps avoid that, he said.

“On its face,” he said, “I think the regulation is benign.”