Alaska’s attorney general resigned. Dunleavy still won’t talk about it.

Published: Sep. 24, 2020 at 6:02 PM AKDT
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ANCHORAGE, Alaska (KTUU) - When Alaska’s attorney general abruptly resigned Aug. 25 amid a scandal, Alaska Gov. Mike Dunleavy had little to say. He released a prepared statement via email and cited being legally bound to confidentiality. Legal experts disagree.

At his first State of the State address in January 2019, Dunleavy assured Alaskans, “We must restore public trust in government and elected officials.”

Fiscal gaps, earthquakes, wildfires and the pandemic have given Dunleavy a constant series of crises through which to lead, but misconduct by someone within his close circle of advisors and the state’s top law enforcement official is a matter he won’t discuss.

Clarkson resigns

A joint investigation by the Anchorage Daily News' Kyle Hopkins and ProPublica, published in August, revealed that in March 2020, Attorney General Kevin Clarkson had sent hundreds of “uncomfortable” text messages to a junior state employee.

Unbeknownst to the public, Clarkson had also quietly been placed on a month’s leave without pay — an absence that between the COVID-19 pandemic and summer break could well have gone unnoticed.

“Over a 27-day span, the attorney general asked the woman to come to his house at least 18 times, often punctuating the messages with kiss emoji and comments about the much-younger woman’s beauty,” the ADN reported.

Hours after the news broke, Clarkson resigned.

That same day, Clarkson sent his resignation letter to Alaska’s News Source and other media. In it, Clarkson admitted sending what he called "G" rated text messages.

“In short, I believed we had a positive friendship borne of mutual respect and interests,” Clarkson wrote. “What I failed to recognize is the impact that these interactions had on this person, due to the disparity in our workplace rank.”

Clarkson said he immediately stopped texting the woman after she expressed her discomfort, but the situation escalated once “a representative of political opposition” learned about the texts.

“I immediately and fully cooperated in the ensuing process, and have accepted the finding by Human Resources that my actions, however unintentionally, created an uncomfortable workplace environment for this employee. As you know, I have accepted and am completing a period of unpaid leave as a consequence for my error in judgment, which I recognize was wholly and only mine,” Clarkson wrote.

The day of Clarkson’s resignation, the only response from Dunleavy’s office came in the form of a statement calling Clarkson’s conduct deeply disappointing.

“This administration has and always will expect the highest level of professional conduct in the workplace,” the governor’s statement read.

The emailed statement went on to assert that Dunleavy is bound by Alaska law that makes personnel matters confidential.

The statement did not address why Clarkson had quietly been placed on unpaid leave while Alaskans were not made aware that the top lawyer in the state had been reprimanded.

‘The topic is COVID’

The first opportunity for journalists to directly question Dunleavy about what happened came Sept. 1, during the governor’s weekly COVID-19 news conference.

The often hour-long events are generally hosted by the governor, with appearances from the state’s chief medical officer and other department heads responsible for pandemic response. Questions are taken round-robin style after the speakers make presentations.

When called upon to ask a question, Alaska’s News Source asked Dunleavy what he knew about the incident, when he knew it and what exactly he did to address Clarkson’s behavior.

“That issue was dealt with according to law and there are statutes that allow and prohibit certain comments on that and so, once again, if that is ah—, if that’s a question you want answered, you can send it to our press—, they’ll screen it through our Department of Law to make sure that the answers that you’re given are in conjunction with allowable, applicable law to actually talk about that issue,” Dunleavy responded.

Deputy Communications Director Jeff Turner then told other journalists participating in the news conference to stick to questions related to the pandemic.

“The topic is COVID, so please, if you have topics on, questions on a different topic, as the governor said, we’re happy to respond to those just send me an email and we’ll get responses to you as quickly as possible,” Turner said.

Secret complaints and personnel issues

Alaska’s News Source sent Turner multiple emails dated Sept. 7, 8 and 14 requesting an on-camera interview with Dunleavy to discuss the matter.

None of the requests resulted in an opportunity to speak with Dunleavy about the circumstances under which Clarkson left his position.

Turner responded to a request on Sept. 8, writing, “Personnel issues are by their nature sensitive and there are various confidentiality rules that apply, including in this instance, AS 39.28.060, making the complaint process and investigation confidential.”

Other reasons Turner gave for the governor’s refusal to participate in an interview were that the governor says he referred the matter to the appropriate authority, he followed all required procedures and there isn’t a possibility of another incident now that the attorney general has resigned.

In a follow up email sent on Sept. 8, Alaska’s News Source urged the governor to reconsider.

Receiving no response, another email was delivered on Sept. 14, to which Turner responded, “I appreciate your interest in this story, however, AS 39.28.060 makes the complaint process and investigation confidential.”

‘Grasping at straws’

Two attorneys who specialize in media law and public records matters independently told the Alaska’s News Source investigative team that Turner’s response, repeatedly citing a law that deals with employment discrimination complaints, does not make sense.

“It sounds like they’re grasping at straws, frankly,” said Adam Marshall, an attorney with the Reporters Committee for Freedom of the Press.

Marshall said the section of law cited by Turner does not prevent Dunleavy from speaking on the matter.

“I litigate public records cases all across the country, and the law that is being cited is essentially an exemption to disclosing records, under the public records law,” Marshall said. “That has nothing to do with whether or not the governor can give an interview.”

Alaska’s News Source also reached out to attorney John McKay, who has practiced media law in Alaska for decades.

“The reasons that they’ve given simply don’t apply,” McKay said. “I mean, I think it’s the kind of thing that if they wanted to say, ‘Look, we just don’t feel like talking about this, it’s an embarrassment, or, we don’t really feel like the public needs to know anything more about this, we’ve taken care of it, none of your business, nothing to see here, move on,’ you know, they could say that.”

Participating in an interview is a matter of the governor’s choice and is not dictated by public disclosure laws, according to McKay.

Turner also wrote in an email, “The statute, in part, is designed to protect privacy of the complainant.”

McKay said the woman’s identity can still be protected while the governor answers for his own actions.

“We’ve already had significant public discussions about this. We know that the governor took some action. If nothing else, he accepted the resignation of his attorney general. We know that the attorney general of the state took actions. All these things we know without knowing the name of the woman who was involved,” McKay said.

Confidentiality exemption

Turner did not specifically cite the section of Alaska law that makes many personnel records confidential, but he has repeatedly said the situation cannot be discussed because it is a personnel matter.

“The governor’s office does not talk about personnel issues,” he said during a phone call on Wednesday. “The former attorney general is no different.”

While state personnel records are typically confidential, McKay said that’s not the case for the position of attorney general.

“Mr. Clarkson was not a confidential, public classified, employee,” McKay said. “He was what they call an exempt employee and the law treats exempt employees differently and the personnel rules don’t apply to them. The confidentiality portion of the personnel code doesn’t apply to exempt employees, which is what he was.”

According to AS 39.25.110, “the head of each principal department in the executive branch,” is exempt from the provisions of AS 39.25.080, which is the confidentiality portion of Alaska’s personnel code.

As the attorney general, Clarkson was the head of the Department of Law and therefore considered an exempt employee.

“I think there’s a misnomer that anything that has to do with personnel matters is somehow something that the public doesn’t have any right to know about and that’s simply not true,” McKay said.

He said it’s possible the administration has overlooked the fact that Clarkson was not subject to the same confidentiality rules as other state employees when deciding the governor cannot speak on the matter.

“I think the good news is that they’ve simply misinterpreted or not looked carefully enough at the law, and they can, so they can and they should make the information public I think,” McKay said.

Unanswered questions

Questions about when Dunleavy learned about the situation, what he knew, how he responded, why Alaskans were kept in the dark and why the attorney general’s resignation only came after his misconduct was made public remain unanswered.

“I think those are perfectly legitimate questions that have nothing to do with any arguably confidential process of investigating a complaint that may or may not have been filed,” McKay said.

Since the start of the pandemic, and with the exception of two weeks in June, the governor has held a weekly news conference to answer questions from reporters. He hasn’t held one since Sept. 1, when he was asked about Clarkson.

Instead, his administration has held town hall events, encouraging Alaskans to submit questions online, which are then selected and filtered through the governor’s staff.

On Wednesday, Alaska’s News Source again sought an interview. It, as with prior requests, was denied.

correction: This story originally stated the governor has held weekly news conferences since the start of the pandemic through Sept. 1. It has been corrected to note Dunleavy did not hold a press conference during the weeks of June 14 and June 21.

Alaska’s News Source investigative reporter Jill Burke contributed to this report.

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