Legislature(1997 - 1998)
03/30/1998 01:45 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
March 30, 1998
1:45 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Mike Miller
Senator Sean Parnell
Senator Johnny Ellis
MEMBERS ABSENT
Senator Drue Pearce, Vice-Chairman
COMMITTEE CALENDAR
SENATE BILL NO. 329
"An Act establishing an exemption for investment clubs from the
business license requirement."
- MOVED CSSB 329 FROM COMMITTEE
HOUSE BILL NO. 321 am
"An Act relating to trusts, to the prudent investor rule, and to
standards of care applicable to personal representatives,
conservators, and trustees; and providing for an effective date."
- MOVED HB 321 am
PREVIOUS SENATE COMMITTEE ACTION
SB 329 - See Labor and Commerce minutes dated 3/12/98.
HB 321 - No previous action to report.
WITNESS REGISTER
Mr. Kenneth Norsworthy
Special Counsel to the Senate Judiciary Committee
711 H Street, Suite 510
Anchorage, Ak 99501
POSITION STATEMENT: Presented information to the committee on
the APSIN inquiry
Representative Joe Ryan
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Presented HB 321
Mr. Dick Thwaites
500 L St. suite 301
Anchorage, Ak 99501
POSITION STATEMENT: Supported HB 321
Mr. Floyd Dameron
2430 Foxhall Drive
Anchorage, Ak 99504
POSITION STATEMENT: Supported SB 329
Ms. Annette Kreitzer
Staff to Senator Loren Leman
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Presented SB 329
Ms. Catherine Reardon
Director, Division of Occupational Licencing
PO Box 110806
Juneau, Ak 99811-0806
POSITION STATEMENT: Supported SB 329
ACTION NARRATIVE
TAPE 98-24, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:45 and brought up HB 321 am as the first order of
business.
HB 321 - UNIFORM PRUDENT INVESTOR ACT
REPRESENTATIVE JOE RYAN, prime sponsor of HB 321, said the bill
removes restrictions on trusts and trustees and allows for the
implementation of modern portfolio management techniques.
REPRESENTATIVE RYAN said the bill is endorsed by the American Bar
Association, the American Bankers' association and has already been
adopted in 20 other states.
CHAIRMAN TAYLOR commented that, historically, through neglectful
management, the state of Alaska was held liable for not following
the prudent investor standard and investing in junk bonds.
Consequently, the state had to put up some $30 million and only
recovered a portion of this. CHAIRMAN TAYLOR asked if this bill
changes the prudent investor standard that has always been in
effect in Alaska. Representative RYAN said HB 321 is based on the
responsibility of a trustee, and gives a trustee the authority to
delegate investment management. The trustee is allowed to use a
sophisticated risk return analysis to guide important decisions and
REPRESENTATIVE RYAN suggested this would preclude the type of
situation CHAIRMAN TAYLOR had referred to, as the trustee would
have delegated the management authority to a professional
investment manager.
MR. DICK THWAITES, an attorney specializing in estate and gift
taxes testified via teleconference from Anchorage. MR. THWAITES
indicated the bill closely follows the National Conference of
Commissioners on Uniform State Law, covering both trusts and
estates and unifies investment standards required of trustees. MR.
THWAITES said the bill can be likened to the Uniform Commercial
Code, in that it standardizes things and will make our state
standards easier to understand.
Number 115
SENATOR PARNELL referenced page 3, line 9 which reads, "a trustee
shall make a reasonable effort to verify facts relevant to the
investment . . . " SENATOR PARNELL asked if this increases the
standard of care from the existing law. MR. THWAITES said the
standard will remain the same but the trustee must be a
knowledgeable one, considering and serving the specific needs of
their beneficiary. He said it will allow trustees to employ fund
managers to help meet this requirement.
SENATOR PARNELL asked what the policy reason were for passing the
bill. MR. THWAITES replied it makes the uniform law consistent with
that of other states, provides a foundation for trustees that does
not currently exist, unifies the terminology, and clarifies many of
the questions of professional fiduciaries around the state.
SENATOR PARNELL asked how many states have adopted the Uniform
Prudent Investor Act and MR. THWAITES replied nineteen have adopted
it, and it is pending in seven others as of 7/1/98.
SENATOR PARNELL moved HB 321 am from committee with individual
recommendations. Without objection, it was so ordered and CHAIRMAN
TAYLOR called SB 329 as the next order of business.
SB 329 - INVESTMENT CLUB LICENSE EXEMPTION
Number 167
MR. FLOYD DAMRON, Co-President of the Alaska Council of the
National Association of Investors Corporation, testified via
teleconference from Anchorage. MR. DAMRON stated that SB 329 allows
investment clubs to be exempt from getting a business licence. He
said there are 36,000 investment clubs around the United States.
MR. DAMRON said these clubs are not a business and their general
purpose is to provide education about investing in the U.S. Stock
Market. MR. DAMRON noted that the financial impact of this bill is
zero.
Number 200
Ms. Annette Kreitzer, Staff to the Senate Labor and Commerce
Committee, said the proposed committee substitute includes a clean
up of language that was not included in the bill that passed out of
the Labor and Commerce committee. Ms. KREITZER said the bill also
includes a simplified definition of business.
SENATOR PARNELL asked why the bill takes out the Commissioner of
Commerce and Economic Development (CED). MS. KREITZER replied that
the CED does issue some fisheries business licences to some fishing
related businesses. Also, the drafter thought it was important to
include, but the sponsor has no feeling on it.
SENATOR ELLIS assumed the fiscal impact of the bill was negligible,
and asked if any public protection was lost to consumers under this
bill. MS. KREITZER said the fiscal note was zero and, as she
understood it, there was no protection lost under the bill. MR.
KREITZER added that no other state requires business licences for
investment clubs.
SENATOR ELLIS asked if the registration of investment clubs was a
useful tool for other reasons.
SENATOR PARNELL asked if the intent was to immunize or limit
liability of investment clubs and Ms. KREITZER replied the intent
was only to exempt them from the requirement of purchasing a
business licence.
Number 269
MS. CATHERINE REARDON, Director of the Division of Occupational
Licencing under the Department of Commerce and Economic
Development, testified that business licencing is essentially a tax
and provides no public protection. Business are not investigated,
and the division has no basis on which to deny a business licence.
Ms. REARDON said there are currently 72,000 business licences held
in Alaska, and the tighter definition will help her division by
reducing the confusion of people calling and visiting their office.
MS. REARDON said her division has no position on section one, added
by the legislative drafter. She said section two gives the division
regulation writing authority which she appreciates. She noted the
zero fiscal note and commented that, actually, the state may lose
approximately $250, but her office will work to offset this loss.
SENATOR PARNELL asked if any investment clubs currently pay taxes,
other than the cost of their business licences. MR. FLOYD DAMRON
replied that investment clubs are formed as partnerships, in which
each partner pays his or her taxes directly to the federal
government.
SENATOR MILLER moved the adoption of the committee substitute,
version "B." Without objection, it was so ordered.
CHAIRMAN TAYLOR announced he may have a potential conflict of
interest, as his wife is in an investment club in Wrangell.
SENATOR PARNELL moved CSSB 329 out of committee with individual
recommendations. Without objection, it was so ordered.
CHAIRMAN TAYLOR announced that the next order of business would be
a report by MR. KEN NORSWORTHY, special counsel to the Judiciary
Committee, on the Department of Public Safety's (DPS) investigation
of unauthorized access to the Alaska Public Safety Information
Network (APSIN). CHAIRMAN TAYLOR asked MR. NORSWORTHY for an
overview of the report and asked him to explain how he received the
material he based the report on.
MR. NORSWORTHY stated that his report was the product of many
months of review, beginning in January with initial interviews of
the Commissioners of the Department of Public Safety (Mr. Otte) and
Corrections (Ms. Pugh). MR. NORSWORTHY conducted these interviews
to get an idea of what had transpired before he had become involved
in the issue. MR. NORSWORTHY learned that in 1996 a number of state
employees had run questionable accesses of the names of public
officials on APSIN. APSIN stores criminal histories and other
sensitive personal information.
MR. NORSWORTHY said he immediately noticed that some people had the
misconception that all the information available in APSIN could
also be publicly accessed at a courthouse. MR. NORSWORTHY said the
committee requested this inquiry after the 1997 election in which
SENATOR JERRY WARD had some negative campaign ads directed against
him that some suspected were the result of unauthorized access to
APSIN. In response to this suspicion, Mr. Otte ran a targeted audit
of APSIN to see if there had been any questionable access to
SENATOR WARD's file prior to September 1996, when an article
appeared in the Anchorage Daily News about SENATOR WARD's criminal
history. Initially, nothing was found. A broader audit did find
that SENATOR WARD's file had been accessed several times by APSIN
users all over the state.
A further request from Mr. Otte for an audit of the 18 months
surrounding the 1997 election by the APSIN security officer (Ms.
Mather) resulted in finding numerous suspicious accesses to the
names of public officials, including legislators and city officials
from Wasilla. MR. NORSWORTHY reported that the audit had come to
the attention of the press and this brought more attention from
public officials, some of who asked to be run in APSIN to see if
their name had been accessed. At the end of this, in early May
1997, Mr. Otte reported to the Judiciary Committee that many
suspicious accesses had occurred, but there was no indication of
criminal conduct and some cases had been referred to the troopers
for criminal investigation.
Number 449
MR. NORSWORTHY spoke with Commissioner Otte in January 1997, after
the criminal investigation had been completed, but before the
completion of the screening by the Department of Law (DoL) to
determine if there were to be any criminal prosecutions. MR.
NORSWORTHY then interviewed the Commissioner of the Department of
Corrections (DoC), Ms. Margaret Pugh. After these interviews, the
Judiciary Committee decided that certain records of the audit and
criminal investigation needed to be obtained in order to assist
MR.NORSWORTHY's investigation. Mr. Otte and Ms. Pugh, along with
Mr. Dean Guaneli and Ms. Kathleen Strasbaugh asked for a subpoena
to be issued from the Judiciary committee in order to transmit
these documents. These same people also indicated that if the
committee wished to view confidential personnel files, they would
like a signed contract assuring the committee would maintain the
confidentiality of those records.
Number 450
CHAIRMAN TAYLOR restated that, upon his initial interviews with DPS
and DoC, they had suggested the committee utilize a subpoena to
acquire the desired records. MR. NORSWORTHY replied they not only
suggested it, but said they would not transmit the documents
without a subpoena.
CHAIRMAN TAYLOR asked if there were two classes of documents
discussed with MR. NORSWORTHY, both of which would only be
forthcoming with a subpoena to cover themselves for the conveyance
of the documents. MR. NORSWORTHY replied that was correct. CHAIRMAN
TAYLOR said the first type of documents were public, available
under a freedom of information act request, and the second type of
documents were confidential and would only be disclosed to the
committee on receipt of a signed agreement ensuring
confidentiality. CHAIRMAN TAYLOR understood that MR. NORSWORTHY had
only received the first type of document. MR. NORSWORTHY agreed,
but said he was not entirely sure that all the documents he
received could have been obtained through a freedom of information
act request.
CHAIRMAN TAYLOR asked if other documents had been and remain
withheld pending a contract of confidentiality from the committee
and MR. NORSWORTHY replied this was correct and said he had advised
the committee, due to the volume of information, to first look at
those documents that did not require the confidentiality contract
and then, if warranted, request the other documents. MR. NORSWORTHY
said he was concerned that reviewing both public and confidential
documents simultaneously might make it easier to accidentally
breach confidentiality.
Number 515
CHAIRMAN TAYLOR concluded that MR. NORSWORTHY had reviewed only the
documents screened by the Department of Law and MR. NORSWORTHY
replied that was correct.
SENATOR PARNELL asked if MR. NORSWORTHY had reviewed any personnel
records in preparing the report and MR. NORSWORTHY said, to the
best of his knowledge, he had not. However, he said he would not be
surprised if some of the documents he had reviewed would appear in
some peoples' personnel files. MR. NORSWORTHY said he was provided
with seven large boxes of documents, some of which were generated
by the Department of Public Safety in their administrative review
of the APSIN matter, and which may appear in certain personnel
files.
Number 534
MR. NORSWORTHY commented that the committee should know there is a
substatute to A.S. 12.62 which prohibits making public the names of
people who make certain accesses unless there are legal or judicial
reasons for doing so. MR. NORSWORTHY noted that DoL did not cloak
theses names and he is assuming they are not confidential. MR.
NORSWORTHY said he cannot give a detailed summary of his report
without naming names.
CHAIRMAN TAYLOR said the committee was told at one time that these
were closed police files, but was later told by Mr. Guaneli the
files were available on a freedom of information act request. MR.
NORSWORTHY remarked that he had been told he could access anything
in the police files that had been closed and declined for
prosecution, but could not access the information in the cases that
were still ongoing. MR. NORSWORTHY said he ultimately got all the
files, as they were all closed without prosecution.
SENATOR PARNELL asked MR. NORSWORTHY if, to the best of his
knowledge, the statements he made in his report were true and MR.
NORSWORTHY replied, "absolutely."
CHAIRMAN TAYLOR asked MR. NORSWORTHY if he was aware of any other
restrictions that would make the information contained in his
report unavailable to the committee and its staff and the public.
MR. NORSWORTHY replied there was one thing: 13 of the files he
focused on were appended with representative documents excerpted
from the original files. In these files, the investigating trooper
ran an APSIN check on the person who allegedly made unauthorized
access and, in one case, that APSIN printout is included in the
file and reveals potentially damaging information about this
individual which is not directly related to this inquiry.
TAPE 98-24, Side B
Number 001
SENATOR PARNELL asked if any of this information was not generally
available to the public. MR. NORSWORTHY replied the information
exhibited in the report is available at the courthouse if you know
where to ask for it.
Number 567
CHAIRMAN TAYLOR said this is why he wanted to clarify exactly what
was contained in MR. NORSWORTHY's report, and he did not propose to
open to the public all the files they have received. MR. NORSWORTHY
indicated that one of the suspects he discussed in the report had
four criminal convictions and documents surrounding this are
contained in the report.
CHAIRMAN TAYLOR concluded there was nothing in the report that
would be confidential and require a closed session, CHAIRMAN TAYLOR
added he did not wish to go into a closed door session at any time,
unless there was a legal reason to do so. MR. NORSWORTHY stated he
knew of no legal reason requiring it.
SENATOR MILLER moved that the report be accepted by the committee
for review. SENATOR ELLIS objected and said there have been public
employee representatives who have objected to the release of
information potentially harmful to public employees. SENATOR ELLIS
also asked if the motion covered only the report itself or included
the other information in the possession of MR. NORSWORTHY. CHAIRMAN
TAYLOR clarified that the motion applied only to the report, but
SENATOR ELLIS maintained his objection.
Roll was called and the motion passed 3 - 1 with SENATOR ELLIS
dissenting.
Number 536
MR. NORSWORTHY reviewed the objectives he initially set. First, MR.
NORSWORTHY wanted to look at the troopers' investigations and the
administrative inquiry in order to determine if any evidence of
criminal violations had been uncovered. Second, MR. NORSWORTHY
wanted to evaluate the adequacy of these investigations. Third, MR.
NORSWORTHY wanted to look at the criminal screening decisions,
considering all the cases had been declined for prosecution. MR.
NORSWORTHY indicated that criminal screening meant the decision to
prosecute a case or not. Fourth, MR. NORSWORTHY wanted to find out
if there was any pattern to these acts that might suggest they were
done for a political purpose. MR. NORSWORTHY wanted it understood
that he did not limit his investigation to only looking for a
political purpose behind these acts, as the law prohibits any
personal use or benefit, not necessarily political. MR. NORSWORTHY
also wanted to discover if any new evidence of criminal violations
or political purposes could be found.
MR. NORSWORTHY reviewed his findings and suggested that the
troopers' investigations indicate there was some criminal conduct
in association with these unauthorized APSIN accesses. MR.
NORSWORTHY characterized the troopers' investigations as
ineffective and inadequate and he believes the criminal screening
was inadequate in some cases due to the quality of the
investigative work, the legal interpretations of the applicable
statutes, and the questionable analysis of the facts. MR.
NORSWORTHY said the main factor hampering the criminal screening
was the fact that the investigations were not sufficiently
thorough. MR. NORSWORTHY said the circumstantial evidence of
political use was very strong in two of the cases he reviewed, and,
with a deeper probe, might have resulted in the discovery of
further evidence.
MR. NORSWORTHY indicated the audit by DPS resulted in 85 suspects,
suspects being defined as a person who made an unauthorized APSIN
access or made an access they could not explain. Without an obvious
connection between the APSIN user and the individual they accessed,
the matter would usually be dropped; however, this audit covered
accesses of the names of legislators and other public officials.
MR. NORSWORTHY indicated that troopers came across all kinds of
admissions of accessing people for no authorized purpose, yet the
troopers did not pursue these statements and there was no serious
thought given to further investigation.
MR. NORSWORTHY summarized by saying the list began with 85
questionable accesses (either admittedly unauthorized or with no
plausible explanation) and DPS referred only 23 of these cases to
the troopers for investigation, leaving 62 not investigated. MR.
NORSWORTHY reported he could not determine why these investigations
had been declined, nor could he determine what criteria had been
used to select those cases that would receive further
investigation.
MR. NORSWORTHY received 23 cases, of which he dismissed 10, which
seemed to be clearly motivated by curiosity. He then reviewed 13
cases in detail in his report, which appear to have possible
criminal violations, and brought the supporting documentation in
those cases with him to the committee. MR. NORSWORTHY said he chose
these 13 cases due to his feeling that the suspect was lying in the
trooper interview, using APSIN access for personal benefit,
politically motivated, or all of the above.
MR. NORSWORTHY noted that the investigation did not set out to
focus on access made at the request of a third party, but this was
revealed several times throughout the interviews.
CHAIRMAN TAYLOR remarked that the committee had no way of knowing
how they did their criminal screening process, and had no way of
knowing if those they targeted were the worst or the least of the
offenders. CHAIRMAN TAYLOR asked MR. NORSWORTHY to explain the
meeting held with Mr. Guaneli and the troopers after the Joint
Judiciary hearing last year.
MR. NORSWORTHY first explained the three criminal provisions that
could apply in these cases: official misconduct, misuse of
confidential information, or criminal use of a computer. The first
two of these statutes are misdemeanors and the third is a class C
felony. MR. NORSWORTHY said during the collaboration of the
troopers and the DoL attorneys leading the screening and
prosecution on this case, a decision was made to focus on these
first two statutes. The Department of Law explained to MR.
NORSWORTHY that the third statute was interpreted only to cover
"hacking," defined as an outside person with no authorized access
whatsoever breaking and entering into a computer network. MR.
NORSWORTHY did not read the statute this way, saying it does not
necessarily immunize an authorized user making an unauthorized
inquiry.
CHAIRMAN TAYLOR asked if the statute specified the information had
to be communicated to another party as a result of an unauthorized
access and MR. NORSWORTHY replied that there was no language in the
felony statute that required communication of any information, but
the misdemeanor statutes were more open to interpretation.
CHAIRMAN TAYLOR interjected that the law only required access and
these people who had accessed had signed a user agreement and
understood they had no right to access the information for their
personal curiosity. CHAIRMAN TAYLOR added a woman was fired in 1984
for using APSIN for personal purposes, he thought this felony
statute (or perhaps the two misdemeanors) were enacted to ensure
that this did not ever happen again.
MR. NORSWORTHY said it is clear that employees can be punished
administratively for this, even be fired, and an argument can be
made that a person who accesses APSIN for an unauthorized purpose
has violated the felony statute, but there was no desire on the
part of the Department of Law to use this statute unless there was
further criminal action. MR. NORSWORTHY referenced a memo in his
report from Dean Guaneli to Attorney General Bruce Bothelo which
outlines why the department did not want to invoke this felony
statute.
Number 305
MR. NORSWORTHY opined that this statute could have been used if the
trooper had discovered a third party compelling the unauthorized
access and then later receiving the accessed information. He
believes both parties would be in violation in this instance.
MR. NORSWORTHY indicated that no actual benefit must be proved for
the official misconduct law to apply, only the intent to benefit.
Based on the evidence MR. NORSWORTHY saw, he believed there was no
impetus to prosecute unless there was an actual benefit achieved by
the access. MR. NORSWORTHY added that many notes in the files
indicated that since negative information was not found, there was
no benefit. On the contrary, MR. NORSWORTHY asserted that it was of
great benefit to learn no information existed, and might save time
and money for a person trying to "dig up some dirt." Again, MR.
NORSWORTHY indicated that this statute could be prosecuted if the
intent to benefit was found.
The misuse of confidential information statute does say the
information received must be used and, according to MR. NORSWORTHY,
this was honed in on by the Department of Law and MR. NORSWORTHY
concedes this is the "muddiest" statute.
Number 194
MR. NORSWORTHY called attention to page 6 of his report which
contains notes from a meeting held on 5/15/97 attended by State
troopers and Mr. Guaneli, MR. NORSWORTHY assumed the notes refer to
what Mr. Guaneli said. CHAIRMAN TAYLOR read excerpts of the notes
including, "Leg - not victims; letters sent out asking their
complaints have already been sent, none received . . . interviews
not needed" and "revealing names - Legislature can be vindictive"
as well as "union/political affiliation it would put them off -
avoid prying questions politics(union) to give Legislature _____
fodder."
MR. NORSWORTHY noted that the word before fodder was edited as were
all the troopers field notes. MR. NORSWORTHY sent a letter to Mr.
Guaneli asking for unedited copies and Mr. Guaneli declined, saying
the edits were not related to the information requested by the
subpoena, though, according to MR. NORSWORTHY, this obviously was.
CHAIRMAN TAYLOR asked MR. NORSWORTHY to send a letter to Mr.
Guaneli requesting unedited copies of these notes. CHAIRMAN TAYLOR
also asked about item #6 that read, "advice/questions - fax to Dean
for Otte."
Number 146
SENATOR PARNELL asked if this meeting had taken place prior to the
troopers interviewing suspects and MR. NORSWORTHY indicated it had
and was part of a whole series of communications in which a
protocol was developed. MR. NORSWORTHY stated that a question
regarding union activism and political affiliation had initially
been one of the standard questions the troopers would ask (as shown
on the unsigned memo on page 30 of the report), but was later
removed. The question did eventually appear in the outline with a
cautionary note reading; "do not go into these questions unless
initiated by the suspect." MR. NORSWORTHY did not understand this,
as he believed this to be the main impetus of the investigation in
the first place.
MR. NORSWORTHY referred to what appeared to be more notes from the
same meeting which read, "doesn't make this a criminal
investigation - breaches in APSIN protocol." CHAIRMAN TAYLOR asked
if these notes were apparently taken by someone being advised by
Mr. Guaneli. MR. NORSWORTHY thought so, considering the context of
Mr. Otte telling him (in MR. NORSWORTHY's interview with him) he
did not feel there should have been any type of criminal
investigation, since no one had reported a crime. Mr. Otte thought
there had been ample time for any legislator to come forward with
a complaint and an investigation was unnecessary since the audit
had not surfaced anything. MR. NORSWORTHY asked Mr. Otte why he
had conducted the investigation and he said he had done it because
the Legislature wanted it. MR. NORSWORTHY said the notes seem to
reflect debate over whether or not the investigation would be run
like a normal criminal investigation.
MR. NORSWORTHY continued reading the fragments of notes, "doesn't
make this a criminal investigation" and "breaches of APSIN
protocol," then "closer to administrative than criminal,
Commissioner doesn't believe they're victims . . . already given
ample opportunities to come forward with information" and
"disclosure is not warranted in most situations, only as
discretion, as necessary." MR. NORSWORTHY claimed this related to
the debate over whether or not the troopers could tell legislators
who had been accessed who had accessed their name in order to get
information.
TAPE 98-25, SIDE A
Number 001
MR. NORSWORTHY said certain troopers did not see how an effective
investigation could have been done without doing this but others
were concerned about violating the statute that required
confidentiality be maintained in regard to an APSIN user's name.
MR. NORSWORTHY said it did not become an issue since they
determined the Legislators had not come forward with any
information.
MR. NORSWORTHY continued to read from notes which read, " 1) not
victims, 2) not interview as standard strategy, 3) not disclose
names as standard strategy, 4) political affiliation - a) state
employee can mask and are most [sic] sophisticated as common
criminal, b) put legislators on the spot to present facts to
investigators, c) commissioner's call, d) we expect most out of
curiosity." MR. NORSWORTHY remarked that item B seemed to set up
an adversarial relationship in which the victims were supposed to
provide the investigators with the necessary evidence to prosecute.
CHAIRMAN TAYLOR commented he found these note fascinating because
if the troopers would not go talk to the legislators, they would
never get to "put them on the spot" to get the information they
needed. MR. NORSWORTHY suggested this could refer to the letters
that Mr. Otte had sent to the legislators who were accessed, asking
them if they had any information about that access.
CHAIRMAN TAYLOR stated that Commissioner Otte failed to notify the
Legislators who had accessed their records, making it difficult for
them to provide any information about the person. MR. NORSWORTHY
agreed, and said there was a note in the report from Captain
Cassanovas who believed an effective investigation could not be
done without this technique.
SENATOR WARD addressed the committee, saying he had requested the
troopers interview him and told a trooper to formally charge the
Governor, Bruce Bothelo and Lori Otto. SENATOR WARD said this did
not appear in the report. SENATOR WARD proposed that this had
something to do with Lori Otto being fired and rehired, and said a
prosecutor had told him she was rehired because of the Ward/Salo
campaign. SENATOR WARD believed that Judy Salo, his opponent, had
access to some information, as she asked him to sign a release he
did not understand for some type of court document.
SENATOR WARD alleged this whole thing is related to the Unions, Ms.
Otto and the Democratic Party. He said he made a complaint to the
trooper, informing him the whole affair was a conspiracy to elect
Democrats and none of this appeared in MR. NORSWORTHY's report.
MR. NORSWORTHY indicated that the report does not represent all the
records in the case, he focused on the troopers' investigations
with incriminating evidence.
MR. NORSWORTHY reported that the protocol that was decided on in
the case did not allow the troopers access to the administrative
audit file because DoL felt this might taint the investigation and
it could be later argued that the investigation was based on
statements compelled against the employees' fifth amendment rights.
MR. NORSWORTHY said he is aware of no legal basis for this
argument, even if the employees' statement would be later deemed
inadmissable. MR. NORSWORTHY said this amounted to a waste of the
time and money spent on the previous inquiry.
MR. NORSWORTHY said, additionally, troopers and employees
questioned this policy that precluded them from learning anything
from the prior administrative review.
CHAIRMAN TAYLOR asked about the case in which a person without
APSIN authorization asked an APSIN user to get information for
them. CHAIRMAN TAYLOR asked who these people were. MR. NORSWORTHY
replied that the access was made by Debbie Alsterberg, an employee
of the Wasilla Police Department. Ms. Alsterberg accessed the
record of John Kramer the new city administrator of Wasilla
(appointed by the new Mayor Sarah Palin), she alleged at the
request of her boss, Mr. Stambaugh. MR. NORSWORTHY remarked that it
was well known in Wasilla that Mr. Kramer's position had
previously been held by a friend of Mr. Stambaugh and also that
there was much ill will between Mr. Stambaugh and Mayor Palin. In
fact, Mayor Palin had fired Police Chief Stambaugh and he had
subsequently filed a wrongful termination lawsuit against Mayor
Palin and the City of Wasilla. Mr. Stambaugh took a private
contract to work in Bosnia and remained there during the
investigation.
MR. NORSWORTHY interviewed Ms. Alsterberg and reported that she
unequivocally stated that she had accessed Mr. Kramer's APSIN
record at the request of then-Chief Stambaugh, who did not have
APSIN authorization. Stambaugh did not tell Ms. Alsterberg why he
wanted her to run Mr. Kramer. During the investigation, the
troopers sent a letter to Mr. Stambaugh in Bosnia, telling him what
Ms. Alsterberg had said and asking he contact them for an
interview. Mr. Stambaugh replied to the letter by mail, denying any
recollection of asking Ms. Alsterberg to access this file.
According to MR. NORSWORTHY, the troopers received this denial and
left it at that. MR. NORSWORTHY suggested the initial letter
"tipped off" Mr. Stambaugh and said no investigation was ever
opened on Mr. Stambaugh.
MR. NORSWORTHY reported further ill will in Wasilla resulted, with
people there alleging that there was an unwillingness to go after
Mr. Stambaugh due to his long, personal friendship with
Commissioner Otte. MR. NORSWORTHY said what struck him was the lack
of recognition of a conflict of interest in this particular case,
and at least one other.
Number 362
MR. NORSWORTHY said Ms. Alsterberg clearly fingered Stambaugh with
strong evidence showing he misused his office, and there is strong
circumstantial evidence that indicates he intended to use the
information for personal benefit, even if there was no benefit
realized. MR. NORSWORTHY remarked that this was still not enough
for the troopers to do an additional investigation. MR. NORSWORTHY
noted that simultaneous to these events were several other dubious
accesses of the records of the Mayor of Wasilla and her husband by
two other police officers (Sonnerholm and Jessen).
MR. NORSWORTHY covered another case from his report involving a
Palmer police dispatcher (Ms. Bowman) who accessed both Mayor Palin
and Assistant City Administrator David Chappel, telling
investigators she accessed those records after hearing a remark
made in the police station wondering if Mayor Palin had a criminal
background. MR. NORSWORTHY said what strikes him is that the
investigation was dropped after the suspect said the access was
made due to curiosity and the information was not discussed with
anyone else. Ms. Bowman said she made the other APSIN access (of
Mr. Chappel) at the explicit request of Captain Don Savage, who was
particularly interested in anything related to domestic violence.
Again, Captain Savage said he could not remember making this
request and that was the end of the investigation. MR. NORSWORTHY
said he was mystified over the lack of an attempt to reconcile big
discrepancies between the information provided by two different
interviewees. MR. NORSWORTHY again noted the apparent conflict of
interest in this investigation.
Number 453
MR. NORSWORTHY pointed out a note from an e-mail in which trooper
Hughes asks to have all of the investigative files retroactively
changed in APSIN so the suspects will not be listed as "suspects,"
but rather as "interviewees" due to a concern that being labeled
"suspect" might hurt future chances for employment, especially in
law enforcement. This occurred after all the cases were closed and
all prosecution had been declined. MR. NORSWORTHY thought the same
reasoning might have been used in not opening an investigative file
on Mr. Stambaugh and Mr. Savage.
Number 478
SENATOR WARD said he received a phone call saying the troopers
would interview 10-20 people, but none of those people who would
tie the affair back to the unions and the third floor. SENATOR WARD
asked the trooper if he was going to investigate these other people
and the trooper replied that he had been given only 16 names by
the Commissioner of Public Safety and he could not look at any
others. MR. NORSWORTHY replied that he had also spoken with Captain
Cassanovas and asked him who had determined who would be
prosecuted. Cassanovas replied that the decision had come from the
Commissioner's office but he did not know exactly who had made it.
SENATOR ELLIS asked CHAIRMAN TAYLOR if he planned to continue this
and if there would be copies of MR. NORSWORTHY's report available
to the press and the public. CHAIRMAN TAYLOR replied that SENATOR
ELLIS could do whatever he liked with it.
SENATOR ELLIS asked if this was the final report of it there would
be additional reports written. CHAIRMAN TAYLOR said he had only
received the report today and the committee would have to decide
that after reviewing this report.
Number 514
MR. NORSWORTHY said this had been characterized as an interim
report due to the fact that he has an ongoing investigation that
may yet yield further information.
CHAIRMAN TAYLOR expressed shock and disappointment over the memos
and notes he had seen. He said the committee needs to have Mr.
Guaneli and some troopers appear before them to explain who wrote
the notes and what has been edited from them. CHAIRMAN TAYLOR said
it appears clear that major decisions were made after the Joint
Judiciary meeting to stack the deck and whitewash the
investigation. He said there was an obvious intent to cover up the
whole situation and he finds it more than offensive.
REPRESENTATIVE HODGINS mentioned he planned on meeting with the
Commissioner and preparing charges against the individual in the
Wasilla case, as the access was obviously made for political and
personal benefit. He asked CHAIRMAN TAYLOR how he planned to
proceed. CHAIRMAN TAYLOR replied that he would like to allow the
committee further time to review the report whenever MR. NORSWORTHY
could return. MR. NORSWORTHY indicated he would be available to
return Wednesday. CHAIRMAN TAYLOR stated the meeting would begin at
1:30. With no further business to come before the committee,
CHAIRMAN TAYLOR adjourned at 4:00.
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