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Dunleavy stays silent on AG scandal as nonpartisan legal opinion confirms he could answer questions

Published: Oct. 2, 2020 at 8:26 PM AKDT
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ANCHORAGE, Alaska (KTUU) - Gov. Mike Dunleavy continues to insist Alaska law prevents him from talking about how he handled misconduct by the state’s top law enforcement official, even after the release of a nonpartisan legal opinion confirming the law does not require his silence.

With the exception of two weeks in June, the governor has held news conferences every week since the start of the pandemic through Sept. 1, when Alaska’s News Source asked him to address the public’s concerns over his response to the scandal that ended the career of his attorney general.

Dunleavy has since denied every request from Alaska’s News Source for an interview and stopped holding news conferences.

Unanswered questions

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.

“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.

Clarkson resigned hours after the texts were made public. A lengthy resignation letter he provided to the media revealed that prior to his resignation, he had quietly been placed on a period of unpaid leave.

Questions regarding 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 came only after his misconduct was made public remain unanswered.

The governor’s office and the Department of Law have repeatedly cited a records law as the reason for Dunleavy’s silence, but two attorneys who specialize in media law and public records matters independently told Alaska’s News Source that the section of law the administration is citing does not prevent Dunleavy from speaking on the matter.

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

State emails show when the ADN requested copies of Clarkson’s text messages, the request was forwarded to Clarkson himself, who said he had no responsive public records to provide.

A response from the Department of Law to the ADN records request read, “The Department has no records.”

In a later email response to the ADN, Chief Assistant Attorney General Alan Birnbaum wrote, “Just because your request seeks the Attorney General’s public records, no reason exists to doubt the accuracy of his response and, therefore, for me or anyone else to search his state devices and accounts or to ask him to permit me or anyone else to search his personal devices and accounts.”

A nonpartisan legal opinion

In a memorandum dated Sept. 23, the Legislative Affairs Agency’s Division of Legal and Research Services responded to two questions posed by Anchorage democrat Rep. Zack Fields:

1. Could the governor or the governor’s chief of staff disclose when the governor’s office learned of inappropriate text messages between the attorney general and another state employee?

2. Could the governor or the governor’s chief of staff disclose when they became aware that the attorney general denied a public records request related to the text messages?

Emily Nauman, deputy director of the Alaska Legislature’s legal services department, who wrote the memo, analyzed both the State Personnel Act and the Deliberative Process Privilege.

The State Personnel Act is the section of Alaska law that makes many personnel records confidential.

The Deliberative Process Privilege, according to the memo, “prevents disclosure of documents that are deliberative in nature containing opinions, recommendations, or advice about policy; purely factual material is not protected unless it cannot be separated from the policymaking process.”

While the Deliberative Process Privilege may be asserted by a member of the executive branch, Nauman wrote that it does not prevent the governor from choosing to release the information.

Consistent with prior reporting by Alaska’s News Source, Nauman concluded that the attorney general, as the head of the Department of Law, is exempt from the confidentiality provisions of the State Personnel Act.

Additionally, she found that the deliberative process does not apply in this situation.

“Given that the State Personnel Act and the deliberative process privilege likely do not apply, it is unclear what law or which grounds the Governor was relying on when he declined to state what he knew about the Attorney General’s texts and when he received information about the texts,” Nauman wrote.

While Nauman did not find a legal barrier preventing the governor from answering the questions, she pointed out only one option that could possibly compel the information’s release.

“Your question relates the knowledge and recollection of the Governor, not a public records request. I cannot think of a way, short of legislative subpoena, to compel a member of the Governor’s staff to provide that information,” she wrote.

‘Hiding from the public’

Fields released the memo publicly, calling on the governor to answer questions about his handling of Clarkson’s misconduct.

“The governor has been hiding from the public for over a month. He’s been refusing to answer journalists' really legitimate questions,” Fields said. “When did he learn about the attorney general’s sexual harassment?”

Fields is accusing the governor’s office of a cover-up.

“Remember, Clarkson only resigned when the media broke the story,” Fields said.

He said while he believes Alaskans deserve to know more about the governor’s actions in responding to misconduct by the state’s top prosecutor, he is also concerned that if Dunleavy does not answer questions, it will set a dangerous precedent.

“The governor is acting like this is Russia with a state-owned media where he can just control what people ask him and I’m sorry, it’s a democracy. We have a free media and the governor has to answer questions just like I would,” Fields said, later adding, “If he’s allowed to do this, to shut down inquiry, what else are we never gonna never— I mean, next time it’s gonna be worse than sexual harassment.”

A month of silence

Dunleavy has denied several requests from Alaska’s News Source for an on-camera interview and has not provided an opportunity for journalists in Alaska to question him directly in a news conference for more than a month, even as the state has recorded daily counts of more than 100 new cases of COVID-19 for the last nine days.

In response to the memo, his office released a statement saying, in part, “The Governor’s office has a long standing policy of not commenting on personnel matters, regardless of whether or not there is a legal prohibition on doing so. To avoid the possibility of violating the law, and to protect the complainant, the Governor will continue to not comment on personnel matters.”

The Department of Law has also claimed Dunleavy’s administration must observe Alaska’s constitutional right to privacy.

However, in the memo, Nauman noted that while Clarkson and the recipient of the text messages could claim the messages are subject to constitutional privacy, Field’s question “relates to the knowledge of the governor, not the content or existence of the messages.”

A tale of two scandals

As for the “long standing policy of not commenting on personnel matters” that the governor’s office continues to cite, former Gov. Bill Walker set a different precedent nearly two years ago when he announced the misconduct and subsequent resignation of his Lt. Gov. Byron Mallott.

Walker went public two days after the incident.

“Last night I learned that Sunday night there was a conversation the lieutenant governor had that was inappropriate overtures and when he realized the— what had been said, he chose to resign this morning,” Walker told reporters on Oct. 16, 2018.

In response to Mallott’s resignation, then candidate Dunleavy released a statement saying, in part, “As we, like all Alaskans, await details surrounding the resignation of the lieutenant governor, our campaign remains focused on restoring trust in state government.”

Fields noted the stark contrast between how the two scandals were relayed to the public.

“In one case, former Gov. Bill Walker immediately provided clarity on what happened and when the governor knew about it, and his […] lieutenant governor resigned immediately when it all happened, within two days of it happening,” he said. “Compare that to the Dunleavy-Clarkson cover up, where it’s been months.”

Legislative oversight

Fields anticipated the opinion would find that the governor could speak more openly. What he did not expect, he said, was information about the oversight role of the Legislature.

According to the memo, because the Legislature confirms the appointment of an attorney general, it should have access to information about the timing and reason for Clarkson’s unpaid leave, regardless of any legal reason the governor cites for withholding that information.

When asked whether lawmakers might pursue the information more formally, Fields said, “I think the governor needs to answer questions from the public. If he refuses to do so after months when the session reconvenes, then I think legislators are going to have to ask ourselves, ‘What’s our role in providing clarity on this really important issue?’ But I think before we get to that point, the governor should just answer the questions.”

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