Rule change would allow attorney general to represent governor in ethics complaints

Alaska Gov. Mike Dunleavy and Attorney General Kevin Clarkson talk with reporters at a press conference held at the Capitol in January. A proposed rule change would allow the attorney general’s office to represent the governor, lieutenant governor and attorney general in ethics complaints. (Photo by Skip Gray/360 North)

A proposed change in state rules would allow the attorney general to represent the governor over an ethics complaint.

The attorney general’s office says the change would simplify the process for handling complaints. But critics say the proposal could lead to the state footing the bill when top state officials commit violations.

Michael Geraghty. (Photo courtesy Alaska Department of Law)
Former Alaska Attorney General Michael Geraghty served in Gov. Sean Parnell’s administration from 2012 to 2014. He said a proposed rule change to allow the attorney general to represent the governor in ethics complaints is largely benign. (Photo courtesy Alaska Department of Law)

Previous governors have had to hire private attorneys to defend themselves against ethics complaints.

On the day Sarah Palin resigned as governor 10 years ago, she complained bitterly about the cost.

“Todd and I (are) looking at more than half a million dollars in legal bills, just in order to set the record straight,” she said in 2009.

Palin faced 15 complaints. The state personnel board dismissed them all, though one led to a settlement in which Palin reimbursed the state for travel costs incurred by her family.

Gov. Mike Dunleavy’s administration wouldn’t make Attorney General Kevin Clarkson available to answer questions about the proposal.

In an emailed response to questions, Department of Law spokesperson Cori Mills wrote that the proposal resulted from a review for addressing ethics complaints several months ago.

Mills said the proposed change would enable the department “to carry on one of its primary functions — that of acting as legal counsel for the Governor, Lt. Governor and Attorney General in their official capacities.”

Mills also wrote that the change would help lessen the risk the complaint process “is used to harass or becomes predatory.”

Under the proposed change, the Department of Law would determine if it’s in the public interest for the state to represent the three officials.

Former Attorney General Michael Geraghty served under former Gov. Sean Parnell, a Republican. He said political differences drive many ethics complaints. And he said the rule change could help.

“I view it largely as benign,” Geraghty said. “I hope it wouldn’t be frequently invoked.”

Geraghty expects the department would choose not to represent the officials when there are signs a violation occurred.

“I would think in those kind of circumstances that the (attorney general) would decline to appoint a representative, but in many other instances, it’s simply: They’re engaged in government business,” Geraghty said.

Alaska Attorney General Jahna Lindemuth discusses a lawsuit the state is filing against Purdue Pharma in the state Capitol on Oct. 31, 2017. Purdue makes the prescription pain pill OxyContin. (Photo by Skip Gray/360 North)
Former Alaska Attorney General Jahna Lindemuth in the state Capitol on Oct. 31, 2017. (Photo by Skip Gray/360 North)

But Jahna Lindemuth said changing the rule would wrongly make the state pay when the governor, lieutenant governor or attorney general commit an ethics violation.

“It’s a bad idea and inappropriate use of state resources,” she said.

Lindemuth was the attorney general for independent former Gov. Bill Walker.

“The primary client of the attorney general is the state of Alaska, and the public and the people of Alaska,” she said.

And she said that while the governor is often the Department of Law’s client as the people’s representative, that shouldn’t be the case when they’re accused of unethical behavior. She said that the governor can already have the state reimburse them for their legal defense costs when no ethical violation is found. And she said that balance would change if the state could always defend the top officials.

“We might find the state defending actually valid complaints made against the governor, lieutenant governor (and) attorney general,” Lindemuth said. “And that would be an inappropriate use of state assets.”

Lindemuth has provided legal advice to the group seeking to recall Dunleavy, a Republican.

Anchorage Democratic Rep. Matt Claman chairs the House Judiciary Committee. He doesn’t agree with the logic that the Department of Law represents the top officials acting in their official capacity.

“The essence of an ethics complaint is that they’re acting outside their official capacity,” he said.

Claman said the rule change would treat the governor and lieutenant governor differently than legislators, who must pay for their own ethics defenses.

“The governor, simply because he’s the state executive, should not be getting state legal counsel for allegations that he’s acted unethically, unless it’s going to be true for everybody,” he said.

Claman also said it would cut into the Department of Law’s limited time and money when it defends the governor instead of working on other cases.

The proposal was made on Oct. 1. The public has until Nov. 4 to submit responses to the proposal.

Andrew Kitchenman

State Government Reporter, Alaska Public Media & KTOO

State government plays an outsized role in the life of Alaskans. As the state continues to go through the painful process of deciding what its priorities are, I bring Alaskans to the scene of a government in transition.

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