ANCHORAGE (KTUU) - A recently-released memo by the non-partisan Legislative Legal Services office raised serious constitutional and legal questions about a proposed change to ethics rules that would allow public money to be spent defending the top state officials from ethics complaints.
The memo, dated Oct. 23, outlines potential violations of the public purpose clause in the constitution, the separation of powers, and equal protection.
“The numerous provisions of the constitution that were likely violated by this, act, yeah it was troubling, I think, more than surprising,” said Sen. Bill Wielechowski, D-Anchorage, who requested the legal analysis.
The proposed regulations would give the attorney general power to defend the governor, lieutenant governor, or attorney general if the attorney general, through the Department of Law, deems that it is in the “public interest.”
One of the problems, according to the legal opinion, is that this creates a conflict of interest, since the “attorney general serves at the pleasure of the governor, and depends on the governor’s goodwill for employment.” In other words, the attorney general has an incentive to defend the governor from ethics complaints even when it might not serve the public interest, since his job might depend on it.
Neither the Department of Law nor the office of the governor provided comment for this story. The Department of Law said it could not speak on the matter during an open public comment period for the regulation change; the governor's office said it was not directly involved in the regulation and had no comment.
The Department of Law previously told KTUU in a written statement that the regulation change would simplify the act and “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.” According to the Department of Law, ethics complaints against these three individuals are currently evaluated by independent counsel selected by the Personnel Board.
Wielechowski says that’s for a reason: To avoid conflicts of interest, something he thinks would be undermined by the new regulations with no accountability.
“So you could have something a completely appropriate ethical violation that was filed, and the attorney general in his discretion could give the Department of Law," Wielechowski said. "They’re gonna have to defend it, even if they don’t want to,” he continued, saying that would be a “nightmare” for attorneys.
The department says that the proposed change “would also help to mitigate the risk that the ethics complaint process is used to harass or becomes predatory.”
But Wielechowski says that the issue of frivolous complaints is addressed in the legislation on the books.
“There are provisions actually on the books where if there is a violation - if someone does file a frivolous complaint, they can actually have their attorneys’ fees recouped. That exists on the law.”
And in any case, it is part of working in government.
“The concern about frivolous complaints - I understand that. I get that. Part of being a public servant is, unfortunately, you have to deal with that”
Repeated attempts to reach various state agencies responsible for processing ethics complaints to ascertain the number of complaints against the officials concerned or the costs they incurred defending themselves, were unsuccessful.
The official notice of the regulation change lists the cost to the Department of Law as $0, but Wielechowski disputes that.
“There’s absolutely a cost, that’s just wrong,” he said. That’s because the Department of Law bills any agency or department for services they provide, as well as occasionally contracting out legal work to private firms.
The costs run at least $100 an hour, Wielechowski said. If the executive branch asks for more services to defend against an ethics complaint, those resources will either be taken away from other departments or incur additional legal fees.
Wielechowski and two other state lawmakers, Rep. Gabrielle LeDoux, R-Anchorage, and Rep. Andy Josephson, D-Anchorage, also jointly signed a letter that they submitted to the Department of Law.
The Department of Law has until Monday, Nov. 4, to make a decision on whether to adopt the changes. The department has not given any indication of when it would make an announcement, but Wielechowski says that he thinks that a better approach would be for the administration to propose a bill that could be debated publicly.
“Let’s debate it publicly, and let’s hear input and let’s hear if there were frivolous issues out there, and if this is creating a huge problem, bring it before the legislature.”
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