Critics raise concern about new proposed regulation from the Department of Law

Attorney General Kevin Clarkson in April, 2019.
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ANCHORAGE (KTUU) - Several lawmakers slammed a proposed regulation from the Dunleavy administration that would let the Department of Law defend some high-level officials from ethics complaints, calling it a "huge conflict of interest."

The regulation was proposed on Monday, Oct. 1, and is undergoing public comment until early November. Already, several Democratic lawmakers have raised concerns about the new change.

"It goes against the entire purpose of the executive ethics act," said Rep. Matt Claman, D-Anchorage, in a phone call with KTUU.

The main issue, said Claman, an Anchorage attorney, comes down to the duty of the Department of Law. According the its website, the attorney general oversees the department, and "serves as the legal adviser for the governor and other state officers, prosecutes all violations of state criminal law, and enforces the consumer protection and unfair trade practices laws."

Claman said that this is incompatible with defending the governor from ethics violations.

"The Department of Law's job is to defend the interests of the state, not to defend the governor. Sometimes those interests might line up, but sometimes they don't," said Claman. "It sets up a huge conflict of interest."

Claman says that the attorney general and the Department of Law are meant to serve the state in various capacities - such as going after criminals - not to represent the governor for ethics complaints. When the department is not doing that, it is using resources that could be put to better effect.

"The most consistent message from this governor has been to cut, cut, cut, except when it comes to the PFD, and now he wants Department of Law money spent on defending himself and the lieutenant governor from ethics complaints," said Claman.

While the proposed regulation isn't estimated to cost the department any money, Claman clarified that it's a matter of allocation of resources. He used the example of a hypothetical attorney Smith working for the Department of Law who is tasked with defending the governor.

"Attorney Smith isn't working on oil and gas tax, lawsuits against oil companies, attorney Smith is not getting reassigned to the prosecutors office in Bethel to make sure they are prosecuting sex offenders -- attorney Smith is defending the governor and using department resources because there are not unlimited resources."

The Department of Law sent a statement to KTUU saying that in fact the "proposed regulation 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," by expanding its role to include ethics complaints.

Claman describes that as a misinterpretation, saying it would be like telling department of Legislative Legal Services - which helps lawmakers craft bills and give legal advice- to defend them against ethics complaints.

Another concern is that the new regulation will decrease the incentive to behave ethically.

Rep. Andy Josephson, D-Anchorage, also an attorney said in an emailed statement that "this is designed to let the department simply ‘relax’ the standards by which its officers behave and go about their business. They will be shielded with the confidence of knowing that Assistant Attorneys General are at their beck and call to defend them in any ethics action brought.”

Claman expanded on this point saying that legal defense would be free, instead of coming from the governor or lieutenant governor's pocket.

Former assistant Attorney General and political blogger Elizabeth Bakalar posted a comment she said she submitted to the Department of Law raising the same issue.

"I am concerned that the adoption of these regulations will encourage corruption, malfeasance, lack of transparency, and an erosion of public trust in the Office of the Attorney General, the Department of Law, and the Governor's Office," she wrote.

The new regulation would gives the the attorney general "sole discretion" to determine whether defending the named officials is "in the public interest."

It also states that information related to the defense of a complaint is confidential to the Department of Law and the Attorney General.

The Department of Law was not able to provide extensive comment on this because it says it is restricted during the public comment period, but in a written statement, it offered some information about the proposed change.

In a statement emailed to KTUU, the department said that it "became aware of this issue several months ago when we were reviewing the procedure for addressing ethics complaints" and that the rule change will be a "streamlining" of the current regulations.

The statement explained that while most initial investigations into ethics complaints are performed by the Department of Law, those against the governor, lieutenant governor, and attorney general are investigated by an independent counsel selected by the Alaska State Personnel Board.

Essentially, the new regulations would take the independent counsel out of the picture which it says will streamline the ethics complaints process.

Finally, the Department of Law says that the new regulation will mitigate the risk that complaints are used to "harass or becomes predatory," something Claman dismissed as being part of the job.

"I can guarantee you that there are plenty of legislators that have had confidential complaints brought against them that were found groundless," he said. "It's part of being a public official."

He added that legislators often have to pay for legal fees associated with anonymous ethics complaints that the Legislative Ethics Committee decides are groundless.

"This governor is no different. We should not be paying for the governor to have free legal representation, just because someone files frivolous legal complaints."

Public comment on the regulation change is open until Nov. 4.

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