The “troopergate” report — thin gruel

I’ve read the Alaska “Troopergate” report. Its analysis is quite thin and its key findings (the ones relating to Governor Palin) are not convincing.

The two key findings are:

* Governor Sarah Palin abused her power by violating Alaska Statute 39.52.110(a) of the Alaska Executive Branch Ethics Act. Alaska Statute 39.52.110(a) provides:
The legislature reaffirms that each public officer holds office as a public trust, and any effort to benefit a personal or financial interest through official action is a violation of that trust.

*Although Walt Monegan’s refusal to fire Trooper Michael Wooten was not the sole reason he was fired by Governor Sarah Palin, it was likely a contributing factor to his termination as Commissioner of Public Safety. In spite of that, Governor Palin’s firing of Commissioner Monegan was a proper and lawful exercise of her constitutional and statutory authority to hire and fire executive branch department heads.

Let’s start with the second finding. Here the author is saying that Palin probably had “mixed motives” for firing Commissioner Monegan, some having nothing to do with Trooper Wooten. As I suggested last night, mixed motive cases are very tricky because the finder of fact must, in effect, enter the mind of the decisionmaker and try to figure out how she weighed a mixture of considerations. Careful analysis obviously is required.

Unfortunately, the author of this report offers essentially zero analysis. He is content to state that his finding is based on “the entire record.” He does not bother to explain how that record led to his conclusion.

The first finding contains a bit more analysis, but it ultimately raises more questions than it answers. The statutory provision in question is violated only if a public officer engages in official action to benefit a personal or financial interest. Moreover, as the report acknowledges, the violation must be “knowing.”

Here, the report does not find that Gov. Palin herself attempted to get Trooper Wooen fired, although it asserts that there is some evidence of this. Rather, the author bases his conclusion on the activity of Todd Palin and on Sarah Palin’s “inaction,” namely her failure to stop her husband.

Now it is apparently true that “inaction” by a public figure can amount to “official action” under the Alaska statute. However, since a violation must be “knowing,” Gov. Palin can only have violated the statute if she knew that her husband was placing impermissible pressure on state employees to have Wooten fired (or disciplined more harshly than he was).

The report asserts that Gov. Palin “knowingly permitted a situation to continue where impermissible pressure was applied. . .to get [Wooten] fired.” But evidence that she knew Todd Palin was placing impermissble pressure (if he was) is not set forth. [Note: there is evidence, in the form of testimony from Monegan, from which it can inferred that Gov. Palin knew that her husband was, or would be, talking with state officials about Wooten, but no evidence that she knew the nature or extent of such talks, or whether pressure was being applied.]

It is also not entirely clear (at least to me) that the efforts of Gov. Palin and/or her husband were intended to gain a personal benefit. Wooten seems to have been a genuine menace. Among other things, he tasered his young stepson and apparently had a drinking problem. If a governor concludes that a state trooper is a miscreant, the governor should have the ability to discuss that trooper. The report does not convincingly show that the Palins were driven by the desire to obtain a personal benefit, as opposed to the desire to rid the police force of a bad apple about whom they had personal knowledge. However, Todd Palin’s persistence suggests that, at a minimum, there he, at least had a personal agenda.

In the end, it seems to me that Gov. Palin did not exercise particularly good judgment in this matter. But the case that she abused her power by violating the ethics statute and/or that she fired the public safety commissioner because he wouldn’t act against Wooten has not been made.

Nonetheless, the weakly reasoned “Troopergate” report may well represent another nail in the McCain-Palin coffin.

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