Legislature(1997 - 1998)
04/22/1998 01:55 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
April 22, 1998
1:55 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Drue Pearce, Vice-Chairman
Senator Mike Miller
Senator Sean Parnell
Senator Johnny Ellis
OTHERS MEMBERS PRESENT
Senator Lyda Green
Senator Rick Halford
Senator Jerry Ward
Representative Al Vezey
Representative John Cowdry
COMMITTEE CALENDAR
HOUSE BILL NO. 335
"An Act replacing the Uniform Child Custody Jurisdiction Act with
the Uniform Child Custody Jurisdiction and Enforcement Act; and
amending Rules 4 and 62, Alaska Rules of Civil Procedure, and Rule
205, Alaska Rules of Appellate Procedure."
- SCHEDULED BUT NOT HEARD
SENATE RESOLUTION NO. 2
Requesting Bruce M. Botelho, Attorney General of the State of
Alaska, to appoint a special prosecutor to investigate possible
security and other violations in connection with World Plus, Inc.
- SCHEDULED BUT NOT HEARD
SENATE RESOLUTION NO. 3
Requesting Bruce M. Botelho, Attorney General of the State of
Alaska, to appoint a special prosecutor to investigate the possible
misuse of the Alaska Public Safety Information Network.
- HEARD AND HELD
PREVIOUS SENATE COMMITTEE ACTION
HB 335 - See HESS minutes dated 3/25/98.
SR 2 - No previous action to report.
SR 3 - No previous action to report.
WITNESS REGISTER
Ms. Betty Zabeck
Fairbanks, Ak
POSITION STATEMENT: Supported SR 3
Mr. Michael MacDonald
1008 16th Ave, suite 200
Fairbanks, Ak 99701
POSITION STATEMENT: Supported SR 3
Mr. Kenneth Norsworthy
Special Counsel to the Senate Judiciary Committee
745 West 4th Ave.
Anchorage, Ak 999501
POSITION STATEMENT: Supported SR 3
Mr. Dean Guaneli
Chief Assistant Attorney General
Criminal Division, Department of Law
PO Box 110300
Juneau, Ak 99811-0300
POSITION STATEMENT: Opposed SR 3
Senator Jerry Ward
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Supported SR 3
Senator Rick Halford
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Supported SR 3
Representative Al Vezey
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Supported SR 3
Mr. John Cramer
290 East Herning Ave.
Wasilla, Ak
POSITION STATEMENT: Supported SR 3
Mr. Dave Chappel
Deputy Mayor of Wasilla
290 East Herning Ave.
Wasilla, Ak
POSITION STATEMENT: Supported SR 3
Ms. Sarah Palin
Mayor of Wasilla
290 East Herning Ave.
Wasilla, Ak
POSITION STATEMENT: Supported SR 3
ACTION NARRATIVE
TAPE 98-38, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:55. SENATOR ELLIS asked the chairman for details on the
subsistence hearing scheduled for Saturday. CHAIRMAN TAYLOR said
the hearing would be at the Fairbanks Legislative Information
office and he hoped they could work to find Alaska's position.
SENATOR ELLIS asked if the committee will take action on the bill
at that time. CHAIRMAN TAYLOR said he did not think there would be
time for that and he intended only to draw people together to take
testimony and he would be willing to hear ideas and suggestions.
CHAIRMAN TAYLOR announced he would take up SR 3 first.
SR 3 - ALASKA PUBLIC SAFETY INFORMATION SYSTEM
CHAIRMAN TAYLOR explained that this resolution asked the attorney
general to appoint a special prosecutor to investigate
"computergate", the possible misuse of the Alaska Public Safety
Information System (APSIN).
MS. BETTY ZABECK testified via teleconference from Fairbanks and
gave some background about her situation. She was introduced by a
Fairbanks lawyer, MR. MIKE MACDONALD. MS. ZABECK explained that she
had worked as a public safety dispatcher and a state trooper for
the Department of Public Safety (DPS) and then later as a police
officer, fire fighter, and emergency dispatcher for the City of
North Pole.
Number 120
MS. ZABECK said this is a "harsh issue" for her. She dealt with
APSIN when it was known as the Alaska Justice Information Network
(AJIN). She said she understands there is an investigation going on
regarding some access of APSIN. CHAIRMAN TAYLOR replied that is
correct, there were 86 inquiries, 23 of which had been investigated
and cleared of criminal charges.
MS. ZABECK explained that she had been the subject of an
investigation by the North Pole Police Department after she had run
some lisence plates through the APSIN system. CHAIRMAN TAYLOR asked
why she had run the plates and she replied, "out of my curiosity."
CHAIRMAN TAYLOR asked what had caused her to be curious and she
replied that it was not actually political curiosity but it was
deemed that. She said the incident occurred around election time
and she had been with a friend when she saw some cars "of the
constituent" and she was curious to see who was helping this
individual.
CHAIRMAN TAYLOR recounted that she had seen some cars parked around
someone's campaign headquarters and she took the lisence numbers
and ran them. MS. ZABECK replied, "Yes, sir; I did."
CHAIRMAN TAYLOR asked if then she found she had been investigated
and MS. ZABECK replied that was approximately one week later.
CHAIRMAN TAYLOR asked MS. ZABECK if she had, at any time,
communicated any of the information she had learned from the system
with any other person. MS. ZABECK said she did not. CHAIRMAN TAYLOR
said she fit the pattern of the 86 cases before them in which,
apparently, no one had communicated any of the information either.
CHAIRMAN TAYLOR asked what had happened to her and MS. ZABECK said
when she found out the investigation was going on, she was told she
had committed a felony. When she asked what she had done, she was
told she went into the APSIN computer. She told them she had not
committed a felony, since the DMV rules do not explicitly prohibit
this. MS. ZABECK said she was told she would not lose her APSIN
access if she were to call and get the person she accessed to say
she had requested MS. ZABECK to run her record.
CHAIRMAN TAYLOR asked if she was told that if she claimed an
outside person without APSIN access had asked her to access APSIN,
she would not get in trouble. MS. ZABECK said this was correct.
CHAIRMAN TAYLOR asked if she did not claim this because it was
untrue. MS. ZABECK replied affirmatively.
CHAIRMAN TAYLOR asked MS. ZABECK what happened next. MS. ZABECK
said she retained an attorney and asked if she was going to lose
her APSIN access. She said what she had done was not criminal, in
fact it happened frequently at North Pole and other police
departments. MS. ZABECK said it is not uncommon for police
officers, or even private citizens, to come in and pay five dollars
for vehicle information. She said whether or not it is a crime
depends how far into the APSIN system you go. MS. ZABECK said it
becomes a crime when you go into NCIC and/or FBI files, and she
said it was later found that she had not done that. She said she
tried to explain this to the investigator.
CHAIRMAN TAYLOR inquired as to the outcome of the investigation.
MS. ZABECK said it was found that she had not done anything wrong,
however, her APSIN access was taken away which made her unqualified
for her job and she was terminated.
Number 200
CHAIRMAN TAYLOR asked if all she did was look up DMV information,
not look up criminal backgrounds or any other confidential
information available on APSIN. MS. ZABECK said that was correct
and looking at that other information is a crime. CHAIRMAN TAYLOR
confirmed that she recognized this as a crime and understood it to
be a crime. MS. ZABECK said that was correct, that would be a crime
according to the rules.
CHAIRMAN TAYLOR asked if these rules are confusing and MS. ZABECK
said they were not, at least not in that aspect.
CHAIRMAN TAYLOR reiterated that MS. ZABECK was terminated after she
had lost APSIN access, making her unqualified for her job. MS.
ZABECK said this was correct.
CHAIRMAN TAYLOR remarked that MS. ZABECK had then sought legal
counsel and asked if MR. MACDONALD had participated in that case.
MS. ZABECK said he had been involved at the beginning of the case.
Number 239
MS. ZABECK remarked that she had noticed that the resolution spoke
to the poor follow up done in the APSIN investigation. She agreed
that the follow up should have been more thorough. She said, in her
opinion, "it depended on who you knew and what political side you
were on". CHAIRMAN TAYLOR asked if she was saying that she had
information during her case that people had criminally misused the
APSIN system to go into the federal NCIC system. MS. ZABECK
answered that was correct and should be in the police report.
CHAIRMAN TAYLOR said the committee had not received a police report
from her case. CHAIRMAN TAYLOR thanked MS. ZABECK for her testimony
and called MR. MICHAEL MACDONALD.
Number 270
MR. MACDONALD, an attorney residing in Fairbanks, said he had been
involved in the early part of MS. ZABECK's case. He testified that
the investigation MS. ZABECK was subject to was conducted zealously
and in the same manner as any other criminal investigation. He said
the scope of the investigation was widened as the case progressed
in order to try to "bring in the full scale of the violation." He
said there was suspicion that MS. ZABECK had made this access at
the request of a third party and this possibility was also
zealously investigated. MR. MACDONALD said if MS. ZABECK had paid
the five dollars she would still be there today, but the
investigation became very political. He said he thinks public
administration should be politically neutral and attempt to remain
free from political bias. MR. MACDONALD believed MS. ZABECK
suffered from some political bias.
Number 289
CHAIRMAN TAYLOR asked when this incident occurred and MR. MACDONALD
said the access was in August 1991 and the criminal investigation
took two to three weeks to conclude. He mentioned that the civil
suit for wrongful termination went on for much longer and was
concluded by a Supreme Court decision in the last year.
CHAIRMAN TAYLOR asked how they had discovered MS. ZABECK's access
and MR. MACDONALD replied it was done openly with others present in
the office, as MS. ZABECK thought it was above the board. CHAIRMAN
TAYLOR presumed that one of her coworkers turned her in, triggering
the investigation and resultant termination. MR. MACDONALD replied
that was essentially correct. CHAIRMAN TAYLOR restated that MS.
ZABECK did this entirely on her own, only to satisfy her curiosity
and that she did not communicate this information to anyone, yet
she was terminated.
Number 315
SENATOR ELLIS asked about the scope, powers, duties and costs of a
special prosecutor. He noted that most people are familiar with
what has been going on at the federal level, but that the state
does not have much experience with special prosecutors. He asked
what CHAIRMAN TAYLOR envisioned. CHAIRMAN TAYLOR replied he
envisioned the same thing the Governor had just done to "clean the
Administration's skirts" on the railroad fiber optics sale. He said
the Governor had hired former Attorney General Charlie Cole as a
special prosecutor/special investigator to investigate the apparent
conflict of interest alleged against a person who negotiated this
deal on behalf of the railroad. CHAIRMAN TAYLOR said he believes
the funding for this will be internal, as there has been no
supplemental request for this among those conveyed almost daily to
the legislature. CHAIRMAN TAYLOR said it seemed that in these two
significant cases (APSIN and World Plus International) that there
were also apparent conflicts of interest and he would want the
Governor to appoint a special prosecutor for these cases as well.
CHAIRMAN TAYLOR doesn't think the Governor should need the
Legislature's encouragement to do this but commented that it seems
he does.
SENATOR ELLIS asked if CHAIRMAN TAYLOR was certain that Mr. Cole
was acting as a special prosecutor and CHAIRMAN TAYLOR said he was
acting as a special investigator and he assumed if he finds any
criminal conduct he will bring it to the attention of the Attorney
General and ask him to take it to a grand jury.
SENATOR ELLIS asked if what CHAIRMAN TAYLOR was calling for in the
resolution is different from what Mr. Cole is doing. CHAIRMAN
TAYLOR replied it is not intended to be and all he wants to see is
an objective third party conduct an investigation, not people
investigating their own agency or their friends, as has been going
on in both of these cases. CHAIRMAN TAYLOR said that in the World
Plus situation the Attorney General's office has retained private
counsel to defend them in the civil suit that has been brought
against the state, as they recognize their own conflict of interest
and cannot defend themselves.
SENATOR ELLIS asked if there are specific statutes that govern the
powers and duties of a special prosecutor. CHAIRMAN TAYLOR replied
there are such statutes that fall under the Executive branch and
that's why all this resolution does is ask the Governor to appoint
one and move forward.
SENATOR ELLIS said he was just trying to get a better feel of what
was intended. CHAIRMAN TAYLOR explained the resolution as
"basically a letter to the chaplain saying why don't you clean up
your own act."
Number 367
MR. KEN NORSWORTHY testified via teleconference from Anchorage. MR.
NORSWORTHY said to be effective, a special prosecutor would need
the authority to convene a grand jury as well as the ability to
seek indictments without the review and approval of the Attorney
General.
MR. NORSWORTHY said there is a big difference between a special
prosecutor or independent counsel and a special investigator. The
former two have independent authority to decline or to seek
prosecution. CHAIRMAN TAYLOR stated that is why a special
prosecutor was requested.
Number 390
MR. NORSWORTHY concurred with the committee's recommendation for a
special prosecutor to resolve the unanswered questions and address
the appearance of a conflict of interest.
MR. NORSWORTHY believed that criticism of his investigation had
mischaracterized what he was called upon by the committee to do. He
said he was not called to reinvestigate the whole matter and
determine if any criminal acts occurred, he was asked to do an
"oversight review" of the entire administrative investigation and
audit and the general handling of the criminal investigation and
the dissemination of information. MR. NORSWORTHY was then to make
findings and recommendations based on that review. He said his
report was not intended to answer all the questions surrounding
this matter, but was only to give the committee some information on
which they could base their decision whether to pursue this matter.
MR. NORSWORTHY reported that he attempted to approach this matter
in a totally non-political way and followed the facts where they
led. He said he stands by his report which contains only a portion
of the relevant facts. Again, he said he merely wanted to give the
committee some facts to inform them if there was probable cause to
call for a full-bore, independent, criminal investigation of the
whole matter. MR. NORSWORTHY said he thinks the facts will support
his conclusion.
Number 430
CHAIRMAN TAYLOR asked MR. NORSWORTHY if one of the conclusions he
came to was that there was an internal conflict of interest within
both the Department of Law (DOL) and the Department of Public
Safety (DPS). MR. NORSWORTHY agreed and said it goes without saying
that there is an apparent conflict of interest any time an agency
is called to investigate members of their own agency or other
agencies they work closely with, particularly in the area of law
enforcement. MR. NORSWORTHY said that beyond that, the facts of
record indicated that there may have been some actual conflict of
interest that influenced some decisions, such as whether to conduct
an investigation on a particular person and whether or not to
decline prosecution on a given person after they had been targeted
as a suspect.
SENATOR ELLIS commented that he had an amendment and some other
materials that related to MR. NORSWORTHY's report but he did not
know if this would be the appropriate time to present them. He
asked that MR. NORSWORTHY remain on the line. CHAIRMAN TAYLOR asked
him to do so and MR. NORSWORTHY said he would.
SENATOR ELLIS asked how many other witnesses CHAIRMAN TAYLOR had
left and CHAIRMAN TAYLOR replied there were three teleconference
participants, MR. GUANELI and several senators and representatives
who wished to testify.
Number 464
MR. DEAN GUANELI, Chief District Attorney of the criminal division
of the Department of Law, came forward and presented the following
background information on the APSIN matter. In early 1997,
Representative Barnes contacted the Attorney General with her
belief that an employee of the Department of Law had accessed the
APSIN records of SENATOR JERRY WARD before information about his
criminal history appeared in the press and prior to the 1996
election. The Attorney General shared that information with DPS
Commissioner Ron Otte who immediately undertook a review of the
APSIN records, determined that no employee of the Department of Law
had accessed SENATOR WARD at all, but that after certain
information about SENATOR WARD had appeared in the press, other
employees had done so. As a result of that, Commissioner Otte
expanded his audit of the APSIN system to check on any accesses of
other legislators. After consulting with legislative leadership,
Otte further directed the state troopers to undertake an inquiry
into those accesses which had not been determined to be for a
legitimate law enforcement purpose.
MR. GUANELI said ultimately, the Department of Public Safety
expended more than 3,000 hours of effort in this process and
troopers were pulled away from other duties to investigate these
cases. APSIN protocols were modified, policies were modified,
access to the system was denied to some users, and disciplinary
action was taken against some employees. However, the Department of
Law concluded there was insufficient evidence to justify any
criminal prosecution. The Judiciary Committee subsequently retained
special counsel (MR. NORSWORTHY). MR. NORSWORTHY's report
criticized the Department of Law regarding legal advice given to
state troopers and the manner in which the investigation was
conducted.
MR. GUANELI remarked that MR. NORSWORTHY's report indicated his
legal research was nonexistent, as he did not cite a single case
in support of his theories.
Number 500
SENATOR WARD interjected that he had knowledge of what
Representative Barnes had relayed to the Attorney General. SENATOR
WARD reported that Rep. Barnes told the Attorney General that Lori
Otto, former chief prosecutor for the State of Alaska, was fired
for political involvement in the 1996 elections, specifically in
SENATOR WARD's campaign. SENATOR WARD indicated that the Attorney
General was asked why Ms. Otto was fired on a weekday and rehired
"under the cover of darkness at midnight or 1:00 in the morning,
and a new job was created." SENATOR WARD said the Attorney General
was asked if this had anything to do with the political campaign
and Ms. Otto's transfer to the IBEW (International Brotherhood of
Electrical Workers). SENATOR WARD said this "computer stuff" just
spun off of that original question. He said he brought this up
since it had not been mentioned. SENATOR WARD reiterated that what
Rep. Barnes had asked was regarding Lori Otto, her access to court
records, her termination and rehire in a new position and an E-mail
concerning her termination.
MR. GUANELI continued, saying MR. NORSWORTHY's legal research is
nonexistent and his legal analysis ignores basic legal principles
about interpreting criminal statutes. As a result, MR. GUANELI
said, MR. NORSWORTHY reaches incorrect conclusions about the
prosecuteability of these cases. MR. GUANELI said the incorrectness
of MR. NORSWORTHY's legal conclusions undercuts a major portion of
his report.
Regarding MR. NORSWORTHY's criticisms of the legal advice given to
the state troopers, MR. GUANELI indicated again MR. NORSWORTHY's
legal research is nonexistent and his legal analysis ignores basic
legal principles about conducting criminal investigations following
administrative investigations. MR. GUANELI said MR. NORSWORTHY
ignored basic principles of the Alaska Constitution governing fair
and just treatment in executive and legislative investigations, the
right to privacy and freedom of speech. MR. GUANELI said this
resulted in the bad conclusions MR. NORSWORTHY reached about the
legal advice given the state troopers and undercut his entire
report. MR. GUANELI said in his criticism of the troopers'
investigation, MR. NORSWORTHY failed to recognize one of the
guiding principles of our legal system: when a person is not in a
position to judge the demeanor of a witness during an interview, he
or she should give great deference to those who are. MR. GUANELI
explained that the state troopers are experienced investigators and
they looked these people in the eye and made the determination if
further investigation was needed. He said MR. NORSWORTHY's
criticism of the troopers amounts to second-guessing and "being a
Monday morning quarterback" and again this undercuts his report.
Each one of these flaws alone deprives MR. NORSWORTHY's report of
a solid foundational basis for this resolution, according to MR.
GUANELI.
Number 539
MR. GUANELI explained there is a rule in Alaska regarding the
interpretation of statutes called strict construction; strict
construction means that any ambiguities are interpreted against the
state. MR. GUANELI added that anyone charged with a crime must be
clearly noticed of what that crime was. MR. NORSWORTHY's report
discusses the criminal statute using phrases like "it could be
argued" and "arguably." MR. GUANELI told the committee when lawyers
see those kinds of word without any case citations at all, it
should give them pause about the conclusions that are reached. MR.
GUANELI noted that MR. NORSWORTHY backed off a bit in his testimony
before the committee, telling them those misdemeanor statutes are
kind of "muddy waters." Muddy criminal statutes under the rule of
strict construction will be construed against the state and MR.
NORSWORTHY's theories, arguments and suggestions about how they may
be interpreted are simply wrong, according to MR. GUANELI.
MR. GUANELI suggested that he, at least, has been consistent in his
testimony to the committee. He said he pointed out at the joint
meeting last May that there were problems with these statutes as
applied to this kind of conduct. He said he told them that the
misuse of confidential information statute does not apply to merely
looking at something, but requires a use of that information. MR.
GUANELI indicated he told the committee that the felony statute
involving criminal use of a computer applies to "hackers."
MR. GUANELI continued, saying there are certain ethics of the legal
profession, some applying to prosecutors specifically. Prosecutors
have a duty to refrain from pursuing criminal charges unless there
is probable cause to believe the charges are warranted, including
probable case to believe the statutes can be applied to that
conduct. MR. NORSWORTHY also ignored some basic legal principles
about how the troopers were required to conduct this investigation,
MR. GUANELI claimed. He said in all of the instances investigated
there had been a prior administrative inquiry by the person's
employer. CHAIRMAN TAYLOR interjected, "Why couldn't the troopers
use those?" and MR. GUANELI replied that statements given in an
administrative investigation by government entities are often
considered to be compelled testimony (for fifth amendment purposes)
and cannot be used in a criminal investigation. MR. GUANELI said
this applies particularly to police officers, who generally have
policies to this effect written into their procedures. CHAIRMAN
TAYLOR again interjected saying, "You can't use them in a criminal
prosecution, but what you do is you give them the opportunity to
either tell you the truth or get themselves on a black box, and if
they don't tell you the truth they lose their job, Dean. We all
know how the system works. You were not intending to bring criminal
charges when you did the investigation."
Number 570
MR. GUANELI said the troopers did not rely on any of the
information from the administrative inquiry "in order to preserve
any possibility of a criminal prosecution arising out of the
troopers' investigations; if they did, any information that was
given in that or anything derived from that probably could not be
used in a criminal prosecution . . . particularly with police
agencies." MR. GUANELI explained that police officers in any
administrative investigation are required to answer questions by
their employers and that is a compelled statement and cannot be
used in a criminal investigation. MR. GUANELI said if they had
given them advice to go ahead and look at "all that stuff" then MR.
NORSWORTHY would have had grounds to criticize them, as they would
have likely ruined any possibility of a criminal prosecution. The
advice he gave them was good, solid, cautious legal advice, MR.
GUANELI asserted.
MR. GUANELI said MR. NORSWORTHY also ignored some basic
constitutional principles, particularly the fair and just treatment
in executive and legislative investigations, right to privacy and
freedom of speech. The APSIN investigations have been criticized
because the troopers were instructed not to ask questions about
political and union affiliations. CHAIRMAN TAYLOR asked who
instructed them to do that and MR. GUANELI said those were his
instructions, with the legal advice that is was not proper to ask
these questions unless there was some evidence to suggest a
connection to the APSIN access.
TAPE 98-38, Side B
Number 001
CHAIRMAN TAYLOR asked who it was that took notes that day (in May)
and MR. GUANELI replied that he did not recognize the handwriting
but maintained he had been consistent in his testimony and had
previously advised them that there had to be a link in order to ask
questions about political philosophy. CHAIRMAN TAYLOR responded
that he believed Mr. Otte had told him he thought politics and
union activities appeared to be involved and that he would make
certain that this would be investigated thoroughly. CHAIRMAN TAYLOR
said the record does not reflect MR. GUANELI saying anything about
the troopers not being able to ask questions about political
involvement. MR. GUANELI read part of his testimony from the
transcript of the May meeting in which he stated, "I'm suggesting
it is an area in which we have to tread carefully, unless there is
some reasonable basis for proceeding down that road I think that
inquiring into political activities has some risk and I don't think
that we can simply go there based on speculation and rumor; there
has to be some logical connection in order for that link to be
made." MR. GUANELI said his advice to the committee and the
troopers has been consistent.
MR. GUANELI indicated that it is an easy process to find out a
person's political affiliation, as voter registration is a matter
of public record. CHAIRMAN TAYLOR said this was not what was
relevant, the fact was that 86 different candidates were accessed
and that should have triggered a reasonable assumption that
politics had something to do with it. MR. GUANELI countered that 60
of those were cleared, leaving only twenty. CHAIRMAN TAYLOR argued
that 60 were never "cleared", he said this whole series of people
were excused by it being "summarily decided that those people were
too busy for anybody to even ask questions."
Number 554
DEAN GUANELI stated that the evidence transmitted to MR. NORSWORTHY
shows this to be untrue. In fact, inquiries were made to agencies
and written responses were sent back. He disagreed with CHAIRMAN
TAYLOR's characterization that these were written off and
disregarded.
CHAIRMAN TAYLOR said, "Let's just get back to the question . . . I
know you have a pat answer there you want to read to us . . . Who
took the notes? MR. GUANELI replied that he did not know. CHAIRMAN
TAYLOR said he was referring to the meeting on May 19, 1997 with
(reads from notes) "Guaneli, Johnson, Linton, Cassanovas, Hughes,
and then has your name written out to the side of the number 1 and
it says 'Legislature not victims', did you decide that none of the
people who had their privacy invaded could be classed as victims?"
CHAIRMAN TAYLOR stressed the fact that this meeting occurred before
any investigation was underway. MR. GUANELI replied that when a
criminal prosecutor talks about a victim, they are talking about
someone who has been subjected to a criminal act. MR. GUANELI said
there has never been any evidence that crimes were committed here,
that has been their position from the very beginning and was clear
in Commissioner Otte's testimony, so to apply the label of victims
here seemed inappropriate.
CHAIRMAN TAYLOR asked MR. GUANELI if he was the one who talked
about not revealing the names of the perpetrators and MR. GUANELI
replied that legislators were provided with information about what
agency had run them and how many times, however, there is a
specific statute that makes the recipients of criminal justice
information (people who access the system) confidential and they
did not feel it was appropriate to provide specific names to
legislators. He said they were trying to follow the law. CHAIRMAN
TAYLOR commented that by "following the law" the victims never
found out who ran them and were unable to provide any information
about the person they might have had. CHAIRMAN TAYLOR gave the
example of Representative Hodgins and the Juneau dispatcher who ran
his name and later worked for his opposition. DEAN GUANELI stated
that he believed that Representative Hodgins knew that Adam Berg
had run his name and that case was one of the cases where that link
was clear and the troopers did go into questions about political
activity. The specific criticism of MR. NORSWORTHY was that they
did not go into this area and MR. GUANELI maintained this was a
proper decision. They found out people's party affiliation and this
was indicated in the files transmitted to MR. NORSWORTHY, although
he did not mention it. MR. GUANELI supposed perhaps MR. NORSWORTHY
felt party affiliation was not enough and that they should have
gotten more. DEAN GUANELI asked, "once you start going down that
road of inquiring into someone's political beliefs and their
political activities, where do you stop? Do we ask . . . are you
now or have you ever been a member of the communist party?".
CHAIRMAN TAYLOR suggested that he never started asking these
questions, and asked MR. GUANELI if he was the one who excised the
questions having to do with unions and politics. MR. GUANELI said
he told CHAIRMAN TAYLOR last May that that was what he considered
appropriate and he still sticks by and is proud of that advice. MR.
GUANELI said he did give that advice and did not think the troopers
should have been asking that type of question because where you end
up is asking the type of question asked in Washington, D.C. in the
mid-1950's.
Number 460
CHAIRMAN TAYLOR said that before the deprtment was able to
determine if any crime had been committed they would have to have
some sort of prima facie evidence that someone had communicated or
used the information. MR. GUANELI agreed this was correct. CHAIRMAN
TAYLOR said MR. GUANELI then prevented the investigators from
looking for this information that would connect that person's
activities. MR. GUANELI argued that the question was asked, "did
you give this information to anyone?". CHAIRMAN TAYLOR said it was
not asked if they used it themselves for any purpose. He submitted
that Mr. Berg did and there was more than prima facie evidence to
support that. MR. GUANELI agreed to disagree on that point.
CHAIRMAN TAYLOR went back to the notes he was examining from the
May 19th meeting. MR. GUANELI explained that the purpose of the
meeting was to provide the troopers with legal advice on how to
approach the investigation, something his department does all the
time. CHAIRMAN TAYLOR asked about where it said "union/political
questions, it would put them off - avoid prying questions
politics/unions to give leg. ______ (excised) fodder." CHAIRMAN
TAYLOR asked what MR. GUANELI might have meant for someone to take
such notes. MR. GUANELI said one of the great fears during the
investigation was that these people under investigation would not
talk to the troopers at all, as they had no obligation to. MR.
GUANELI said after all the publicity last session, he was amazed
that any of them actually did. He explained they attempted to
approach them in a non-threatening way so they would not refuse to
speak. MR. GUANELI reported that these people had already been
talked to by their employers, some had had their APSIN access cut
off, some had received letters of reprimand or other discipline and
it was a concern that they would not feel threatened so they would
actually talk.
Number 445
CHAIRMAN TAYLOR asked what word had been removed. MR. GUANELI said
he did not know and was not sure why it had been edited but
suggested CHAIRMAN TAYLOR might put in any word he liked. CHAIRMAN
TAYLOR asked, "fodder for what?" and MR. GUANELI responded,
"political fodder. What we feared, Senator, was that these people
. . . would become fodder in some sort of legislative hearings that
would make them the scapegoats in this matter. We thought that they
would be fodder for you."
Number 430
SENATOR PEARCE said she thought most of these people are members of
some type of employee organization. She asked if it ever became a
topic that the head of at least one employees' union had been
quoted as saying that the union had hired private investigators to
look into the backgrounds of legislators to try and find things to
use against them. MR. GUANELI said that is an allegation he and Mr.
Otte had not heard until MR. NORSWORTHY's interview of Commissioner
Otte in January.
SENATOR PEARCE asked if it is or is not against the rules to access
the APSIN system without any reason other than curiosity. MR.
GUANELI replied that it is improper. SENATOR PEARCE asked what that
meant and if it could be a cause for discipline. MR. GUANELI
replied it would subject a person to discipline from their
employer.
SENATOR PEARCE asked at what point this improper act becomes a
crime. MR. GUANELI replied, "when the information is used for an
unauthorized purpose." SENATOR PEARCE asked how that could be
proved if they never asked. MR. GUANELI argued that they did ask,
they asked if the person gave the information to anyone or shared
the information. He said there were a variety of ways that
information could be used but it seemed the legislators' interest
was whether people had only looked at it or if it was shared.
SENATOR PEARCE asked what sort of disciplinary action was taken in
cases where people only looked at the information. MR. GUANELI did
not know entirely, but did know that some letters of reprimand were
issued. SENATOR PEARCE asked if the discipline in this case was
different, if a different standard had been used, than that which
has been used on other state employees who have done the same thing
over the years. MR. GUANELI believed that state employee discipline
is governed by a system of "progressive discipline" in which low
levels of discipline are used initially then the level of
discipline progresses. He believes this concept of progressive
discipline was followed. SENATOR PEARCE restated the question, "was
the discipline meted out in these cases, was there a different
standard than has been used in the past, by the State of Alaska,
when a person accessed records in an improper manner." MR. GUANELI
replied he did not believe the standard was any different. He said
that any discipline in any instance depends on a person's past
record. SENATOR PEARCE commented that she thought one of these
people got a promotion and she did not understand that. MR. GUANELI
replied that it was his understanding that this position became
available at that time, people applied and the most qualified
person got the job.
Number 345
SENATOR PEARCE asked if there were state employees who, as a result
of losing their APSIN access, were no longer able to perform their
job. MR. GUANELI replied he believed the answer to that is no, it
may have been more cumbersome in some instances but that was part
of the lesson. SENATOR PEARCE asked, "everyone who was disciplined
by losing their access was fully able to do their job, under their
job description, without access?". MR. GUANELI did not have the
answer but said for those people working in state agencies, he is
certain that information is available and would communicate the
request to Commissioners Otte and Pugh. SENATOR HALFORD interjected
that this is obviously a rhetorical question since, "the only
access they are supposed to have is the access necessary to do
their job." He wondered about the fact that when "the feds . . .
go after these kinds of cases, they look very specifically at union
or anti-union activity or at political activity. It seems there was
a conscious effort, or maybe just incompetence, to avoid gathering
that kind of information for potential federal review." DEAN
GUANELI replied that even at the federal level the kind of rank
speculation of political involvement would not suffice to motivate
a federal investigation into some sort of union misconduct.
CHAIRMAN TAYLOR asked what kind of rank speculation MR. GUANELI is
talking about.
Number 286
CHAIRMAN TAYLOR stated, "That's a fact, it's a fact that you gave
us, it's a fact that you then have worked at for more than a year
now to deny the existence of . . . What motives were you looking
for?" CHAIRMAN TAYLOR indicated that MR. GUANELI was concerned
with protecting the privacy of the perpetrator, and he assured them
he would go out and do an investigation. He was shocked that MR.
GUANELI had redacted out those questions dealing with politics and
unions, especially in light of SENATOR HALFORD's question. CHAIRMAN
TAYLOR directed MR. GUANELI to answer the question. MR. GUANELI
said the question involves what the feds do under federal statutes
and he was not in a position to comment on this. MR. GUANELI stood
by his statement that the level of information they have in these
cases is not sufficient for even a federal investigation. He
suggested that as a prosecutor, he may need a little more
information before he'd be willing to pry into someone's political
philosophy than someone who works in the Capitol. He said "that
doesn't mean as a prosecutor . . . that we have to conduct our
activities based on the same level of information that activities
are conducted in this building . . . we aren't going to do that."
He said there is a specific Alaska constitutional right to fair
and just treatment in the course of investigations. MR. GUANELI
stated he does not believe it is fair and just to conduct an
investigation into someone's political belief without a compelling
reason to do so. Based on the information they had, they did not
find a compelling reason to do this. CHAIRMAN TAYLOR asked why he
hadn't told them that in May and MR. GUANELI indicated he had.
Number 230
SENATOR HALFORD asked MR. GUANELI if he or his office had done
anything to discourage a federal investigation of these actions and
MR. GUANELI replied they certainly had not, they had advised the
federal authorities of this matter from the outset and provided
them with any information they wanted. Additionally, they were
provided with a copy of MR. NORSWORTY's report.
CHAIRMAN TAYLOR asked if NCIC got involved and asked MR. GUANELI
what he had done to find out if any of these "hits" had pierced
through to the NCIC system. MR. GUANELI said they have informed the
federal authorities what they had done and it was his understanding
that they were satisfied by the process conducted by the Department
of Public Safety. CHAIRMAN TAYLOR asked if MR. GUANELI had sent
notification to the FBI that the APSIN system had been violated
without being prompted to do so. MR. GUANELI replied that was his
understanding.
Number 200
CHAIRMAN TAYLOR stated, "we talked to the FBI too, and that's not
our understanding . . . we were told by Ron Otte that the FBI had
told your security person that if you guys just checked it out on
your side that'd be good enough, but, in fact, you don't have the
ability to check the NCIC computer yourselves . . . " MR. GUANELI
believed they had said the audit DPS was doing on the APSIN system
was sufficient for their purposes. CHAIRMAN TAYLOR said if the
federal government did an audit and reviewed this stuff they could
cut us off. MR. GUANELI said he supposed they could but he did not
believe there was any reason to do so nor was there any indication
that they would.
CHAIRMAN TAYLOR asked MR. GUANELI if he heard MS. ZABECK's
testimony. MR. GUANELI said he heard a portion of it. CHAIRMAN
TAYLOR commented that "she got canned immediately . . . in fact,
there was another one back before her that got canned for the same
thing - using this system and never even giving the information to
anyone." MR. GUANELI said he could not comment on MS. ZABECK's case
but did say her termination was upheld by the Supreme Court and
suggested that if there was wrongdoing they would have reversed the
decision. MR. GUANELI said he has no idea of the facts in this
case, nor her background and so is in no position to comment, but
said the testimony before the committee leaves some questions
unanswered about her particular case. CHAIRMAN TAYLOR commented,
"we know that she lost her job".
Number 151
SENATOR HALFORD asked how many terminations had occurred primarily
due to APSIN or its predecessor during the time MR. GUANELI had
served the Department of Law. MR. GUANELI replied there had been
some but he did not know how many. SENATOR HALFORD said it is
important to know if there is a consistency of treatment.
CHAIRMAN TAYLOR asked MR. GUANELI how many members of the
Department of Law were inquired of regarding improper APSIN use.
MR. GUANELI replied four or five. CHAIRMAN TAYLOR asked who
investigated these cases and MR. GUANELI said it had been the
Department of Public Safety. CHAIRMAN TAYLOR asked again and MR.
GUANELI specified that the Department of Law had acquired the
information and passed it onto the Department of Public Safety.
CHAIRMAN TAYLOR asked again and MR. GUANELI clarified that none of
the people from the Department of Law were among the 22 or 23 cases
investigated by the state troopers. CHAIRMAN TAYLOR asked if these
people had been cleared by the Department of Law. MR. GUANELI
replied, "The Department of Public Safety cleared them." CHAIRMAN
TAYLOR argued, "You investigated yourselves on that one."
CHAIRMAN TAYLOR asked who cleared DPS people, for example Trooper
Savage. MR. GUANELI replied that the information indicated that
Trooper Savage made a proper inquiry and he assumed Public Safety
made that determination. MR. GUANELI said the employing agency has
the initial responsibility to review an employee's performance.
CHAIRMAN TAYLOR asked MR. GUANELI if he believed he or his
department, or any other department head, has a conflict of
interest when it comes to clearing their own personnel of these
allegations. MR. GUANELI replied, "No, I believe it is incumbent
upon the employing agency . . . to review the conduct of its
employees, and that's all that's happened." MR. GUANELI indicated
the same thing happens in the legislative, judicial, and executive
branches, as well as in the private sector. "That's the way the
employer/employee relationship works," said MR. GUANELI.
Number 065
MR. GUANELI commented that the questionable accesses to APSIN were
investigated by the state troopers, experienced investigators who
were instructed to look the people in the eye and make a
determination if the person was being truthful. MR. GUANELI noted
there were about 15 cases of access due to curiosity around the
time of the election when you'd expect articles about candidates in
the paper. MR. GUANELI suggested that the state troopers, and not
MR. NORSWORTHY, were in a position to judge the suspects demeanor
and assess their credibility. CHAIRMAN TAYLOR interjected, "A
state trooper checking on another state trooper . . . you don't see
any conflict of interest there?" MR. GUANELI replied that was
correct. CHAIRMAN TAYLOR declared, "You are more naive than I am,
sir." MR. GUANELI asserted that over the years the state troopers
have investigated members of their own organization. CHAIRMAN
TAYLOR interjected, "They have an internal affairs group . . . they
use a lie detector, don't they? ...tell me why not one of your
troopers at any time used a lie detector on any of these state
employees?".
TAPE 98-39, Side A
Number 001
MR. GUANELI replied that a lie detector is rarely used in criminal
investigations and is often unreliable. He said the troopers were
able to judge the demeanor of the people they interviewed and did
not find it necessary to undertake that extra step. MR. GUANELI
read a quotation from someone who talked to the state troopers
about the investigation and said, "Really it boils down to . . .
spending a lot of state time and money and effort . . . you could
be out catching real criminals, not people who surf the Internet or
whatever it is they do there. And the reality is, to me, these
people are not going to lie and jeopardize their freedom and their
career in the government for some political favor they were doing
. . . that's the frustrating part for me . . . I know most of
these people . . . they are ordinary honest citizens, they are not
going to lie, when it comes down to talking to a trooper, I mean,
you don't do that." CHAIRMAN TAYLOR asked who said that and MR.
GUANELI identified SENATOR WARD as the person who said this to the
lead state trooper investigator. SENATOR WARD interjected that he
had requested Mr. Cassanovas to interview him and SENATOR WARD had
asked Mr. Cassanovas how long it would take him to ask questions
regarding this matter. SENATOR WARD said MR. Cassanovas replied he
could probably do ten (people) a day, but said he was only able to
do the fifteen or twenty assigned to him and he couldn't look at
the other sixty. SENATOR WARD opined that MR. GUANELI had been
stonewalling this for a year, and asked how long it would take to
ask 80 people five simple questions. CHAIRMAN TAYLOR commented that
SENATOR WARD had cut off MR. GUANELI twice and he was attempting to
allow him an opportunity to speak.
SENATOR PEARCE asked what would be a proper reason for a Department
of Law person to access APSIN. MR. GUANELI replied that he believed
all the instances involving access by DOL personnel were in
preparation for a jury trial. It is standard procedure to review
alist of prospective jurors and check their background. MR.
GUANELI said it may surprise the legislators to know that people
don't always recognize their names. SENATOR PEARCE asked if this
was the reason for every access by employees of the Department of
Law. MR. GUANELI replied that was his recollection. He said they
were able to determine in most of these instances that the name of
the legislator appeared on a jury list.
MR. GUANELI said MR. NORSWORTHY, at the end of his report,
concluded that he was unable to determine to a criminal or civil
standard of proof whether or not any of the questioned accesses
were part of a planned scheme on the part of a political
organization, union or other political action group. MR. GUANELI
said this means there is no proof beyond a reasonable doubt, nor is
there a preponderance of the evidence. Essentially, MR. NORSWORTHY
is saying there are no reasonable grounds to believe that there was
any planned scheme on the part of any political organization or
union, according to MR. GUANELI. CHAIRMAN TAYLOR interjected that
MR. GUANELI couldn't turn around and say that when his organization
precluded people from ever asking any questions about politics or
unions. CHAIRMAN TAYLOR stated that MR. NORSWORTHY had never seen
any information from the administrative review, as MR. GUANELI had
said that was confidential and had not conveyed it. MR. GUANELI
interrupted to say that was not correct. CHAIRMAN TAYLOR continued,
saying that Commissioner Otte and MR. GUANELI had assured the
committee they'd leave no stone unturned and his notes, discovered
in the boxes of information conveyed to MR. NORSWORTHY, directly
contradicted this. MR. GUANELI said he told CHAIRMAN TAYLOR last
May the approach he thought was reasonable, that there had to be
some reasonable grounds in order for the troopers "to go down that
road" and advised the troopers accordingly. CHAIRMAN TAYLOR argued
that MR. GUANELI specifically redacted questions generated by the
troopers and made them follow a specific protocol of questions. MR.
NORSWORTHY asked CHAIRMAN TAYLOR to ask MR. GUANELI if he was
directed to remove these questions regarding politics or if he did
so on his own. MR. GUANELI replied no, neither before nor after his
testimony in May did anyone direct him to do so. He said he felt,
and still feels, this was appropriate advice. DEAN GUANELI said MR.
NORSWORTHY was in fact, given information on the administrative
inquiries. MR. NORSWORTHY chimed in to say that was true. CHAIRMAN
TAYLOR said the committee did not have it as he had deemed it
confidential and not to be shared.
Number 216
SENATOR WARD asked MR. GUANELI if he had any meetings prior to May
19th to discuss what would be asked by the troopers. MR. GUANELI
replied that he had one conversation with Commissioner Otte on the
telephone. SENATOR WARD asked if they discussed the exclusion of
questions regarding political and union involvement. MR. GUANELI
said he told Mr. Otte that he had seen the draft protocols and was
concerned with the detailed questions regarding political
philosophies and, in keeping with his previous testimony, would
advise the troopers not to ask those questions.
SENATOR ELLIS reported that he had been called by Tim Jessen, a
Wasilla police officer involved in the APSIN case, who was very
upset and accused the committee of forwarding his APSIN record to
the Frontiersman newspaper in Wasilla. SENATOR ELLIS said Mr.
Jessen was very up-front with him and told him he had, 18 years
ago, gotten drunk and been convicted of an assault and then later
a DWI. Mr. Jessen also told SENATOR ELLIS he had completed alcohol
treatment and has had no problem since and considers himself a law-
abiding citizen. He alleged that the committee had done to him what
they were accusing other people of doing and therefore had lost
their credibility, according to SENATOR ELLIS. CHAIRMAN TAYLOR
commented that it was not Mr. Jessen's APSIN file, but a police
report that had been reviewed by the Attorney General's office and
was given to the committee as a document available under the
Freedom of Information Act. SENATOR ELLIS said Mr. Jessen believed
that his APSIN record was released by the committee or sent to the
Frontiersman. SENATOR ELLIS took Mr. Jessen at his word and asked
the Attorney General what might happen if that had occurred.
SENATOR ELLIS quoted the Attorney General's letter responding to
his inquiry which stated, "the disclosure of the APSIN record and
the disclosure of the names of the recipients of APSIN information
clearly violates the law. While the committee may have acted with
the advice of its special counsel, that advice was wrong. Thus
ironically, in the course of the investigation the committee
appears to have violated the very law regarding confidentiality of
APSIN records that is the subject of it's own investigation. "
SENATOR ELLIS reported the Attorney General goes on to support his
conclusion that the committee may have acted improperly. CHAIRMAN
TAYLOR commented to SENATOR ELLIS that," we can play games with
this Attorney General who wishes to write threatening letters to
the committee but won't bother to do his job when it comes to
investigating . . . "
CHAIRMAN TAYLOR said the committee requested a report and never got
one because Mr. Otte said it was still under review by the same
assistant attorney general who was at the meeting in May when MR.
GUANELI announced there had been no crime committed. He was then
able to find there was no crime that had been committed. CHAIRMAN
TAYLOR said he asked the Commissioner if the investigation had been
completed and was told it was still under review by the Department
of Law. He was also told a subpoena would be necessary to turn over
other information. So, according to CHAIRMAN TAYLOR, he issued a
subpoena at their request and then got a letter from MR. GUANELI
saying certain documents would be confidential and, since they had
notified the union and the union was concerned about this
information and might move to quash the subpoena, asked CHAIRMAN
TAYLOR sign a letter assuring the department that no confidential
documents would be leaked out by the committee. CHAIRMAN TAYLOR
said his response was to ask MR. GUANELI to send only those
documents which he believed were available to the public. CHAIRMAN
TAYLOR said he told them if the committee needed the confidential
information later he would then ask for it. CHAIRMAN TAYLOR stated
he has never asked for that additional information. CHAIRMAN TAYLOR
asked MR. GUANELI, "did you sandbag this committee by putting
something in there that you now believe to be confidential? "
MR. GUANELI said he never suggested the information transmitted to
the committee was public information. CHAIRMAN TAYLOR argued that
he did, and he had even drafted a letter for CHAIRMAN TAYLOR on the
treatment of confidential information and stated he would not
convey the confidential information until he had the letter.
SENATOR WARD asked if there was a copy of the letter, CHAIRMAN
TAYLOR replied there was and SENATOR WARD said that should clear it
up. MR. GUANELI explained there were two classes of information,
the first being personnel information which, by administrative
regulation, requires a subpoena and a written agreement of
confidentiality. This was the information MR. GUANELI was speaking
of when talking about the letter of confidentiality. MR. GUANELI
said there was also the other information from the police reports
and the administrative audits, for which MR. GUANELI asked for the
subpoena and transmitted after receiving it. At the same time MR.
GUANELI sent MR. NORSWORTHY a letter informing him, "I should point
out that one or more other provisions in law may make a portion of
these records confidential and not subject to public dissemination
or discussion. For example, some of the documents provided contain
APSIN information made confidential by AS 12.62.160.". MR. GUANELI
said he specifically pointed out that some of the information in
the boxes was confidential. CHAIRMAN TAYLOR asked how MR.
NORSWORTHY would know which portion of the information would know
what was confidential; he asked if it was somehow identified or
highlighted by MR. GUANELI. MR. GUANELI replied that he assumed MR.
NORSWORTHY, a lawyer for 20 years hired by this committee...
CHAIRMAN TAYLOR interjected a question about how MR. NORSWORTHY
would know where information had come from. MR. GUANELI replied
that he had put MR. NORSWORTHY on notice that some of the
information was confidential and he did not feel he was in a
position to do legal work for MR. NORSWORTHY. MR. GUANELI said MR.
NORSWORTHY could have called him at any time, but did not.
Number 360
MR. NORSWORTHY agreed that MR. GUANELI had put him on notice. MR.
NORSWORTHY said he did not release any of the subpoenaed documents
to any member of the press; in fact, he said he never released a
single piece of paper relating to these documents to anyone other
than his client, CHAIRMAN TAYLOR. MR. NORSWORTHY also said he never
advised the committee it could release specific documents.
CHAIRMAN TAYLOR then commented that the only thing released by the
committee was MR. NORSWORTHY's report, deemed at the time to be a
public document by MR. NORSWORTHY. CHAIRMAN TAYLOR asked SENATOR
ELLIS if he was referring to something that was included in the
report. SENATOR ELLIS said he just received a call from Mr. Jessen
who had been contacted by a reporter. Mr. Jessen thought that the
committee was doing to him what they said the Knowles
Administration had done to them.
MR. NORSWORTHY said there is an attachment to the report that
"purports to be a printout from his (Mr. Jessen's) APSIN file that
was located in his criminal investigation file . . . I did not
release a copy of my report or copies of any documents that were
gathered from the subpoena to any member of the press or to anyone
other than a member of the committee. What happened to it after I
turned it over to the committee, I am totally ignorant of."
SENATOR ELLIS said he is not accusing MR. NORSWORTHY, only asking
if the committee or staff had communicated with the media or anyone
within the media. SENATOR WARD interjected to clarify the record,
asking if this was the case in which a neighbor was attempting to
take land away from Rep. Scott Ogan. MR. NORSWORTHY said that was
an incorrect statement of the facts, but it was the same case.
SENATOR ELLIS said Mr. Jessen's point was that the committee was
hypocritical. SENATOR WARD said this man (Mr. Jessen) was supposed
to be a public servant and had run a name on APSIN for someone
without access.
Number 414
CHAIRMAN TAYLOR said apparently now the Attorney General's office
is going to fight to defend those people who have violated the
system. He said that is the tenor of the letter from the Attorney
General, who makes serious allegations against the committee and
"attacks the attacker." MR. GUANELI replied that the Attorney
General was merely responding to specific questions from SENATOR
ELLIS and actually said he would not pursue any action.
MR. NORSWORTHY asked SENATOR ELLIS if Mr. Jessen had reported that
any part of his APSIN file had been published in the media. SENATOR
ELLIS said he did not know. MR. NORSWORTHY asked what evidence Mr.
Jessen had given SENATOR ELLIS to back up this allegation. SENATOR
ELLIS said Mr. Jessen had told him a reporter from the Frontiersman
had called him and said his APSIN record had been mailed to their
paper. MR. NORSWORTHY asked if the reporter said who had mailed it.
MR. NORSWORTHY said if there is nothing linking this information to
the committee, there is no factual allegation of impropriety.
CHAIRMAN TAYLOR interjected saying, "We're not going to play that
game any longer."
CHAIRMAN TAYLOR then noted that it was a reporter from that same
paper who was the one who made the inquiry of Captain Savage to do
a criminal background check on Mr. Chappel. MR. GUANELI said he did
not believe that was correct, he believed that Captain Savage had
indicated that a request had been made for a specific police
report. Cptain Savage did not know the number of the report, so he
looked it up in APSIN to get the number, according to MR. GUANELI.
CHAIRMAN TAYLOR asked why he then printed it out. MR. GUANELI
suggested that he printed it so he didn't have to write it down.
CHAIRMAN TAYLOR asked who asked him to do this. MR. GUANELI said it
was a public information request and he believed it came from
someone from the Frontiersman. CHAIRMAN TAYLOR asked if he could
just call up any state trooper and ask them to look for police
reports on a specific subject. MR. GUANELI said CHAIRMAN TAYLOR was
expanding on the facts; a Freedom of Information Act request was
made for a specific police report in a specific case and the
trooper looked it up in the computer to save time. CHAIRMAN TAYLOR
said he did not think that any citizen could just call up and ask
for a police report. MR. GUANELI said the public records statutes
in Alaska are broad and there are some circumstances in which
police reports in closed cases can be turned over in response for
a specific request. MR. GUANELI said this is done from time to time
and CHAIRMAN TAYLOR remarked yes, like MR. GUANELI did with the
police report on Mr. Jessen to the committee. MR. GUANELI added
that when reports are turned over to members of the public
confidential information is edited. MR. GUANELI said they did not
redact the information turned over to the committee as the
committee had a subpoena and they honored it, adding that he had
put MR. NORSWORTHY on notice of that at that time. MR. GUANELI
suggested MR. NORSWORTHY knew the Jessen report was confidential,
MR. GUANELI thought he had given the committee that advice. MR.
GUANELI suggested that if he had redacted all the confidential
information from the boxes given to the committee there would be
all kinds of allegations about information being covered up. MR.
GUANELI said just one word that had been redacted in one note has
raised all sorts of problems.
Number 500
SENATOR WARD asked MR. GUANELI about all the rest of the edited
information and MR. GUANELI replied that it was confidential
information unrelated to APSIN. SENATOR WARD asked why it was
blocked out and MR. GUANELI explained that the troopers are
required to keep notes on everything they do during a day. He
restated that this information was not related to the APSIN matter.
SENATOR WARD asked, "somewhere these notes still exist and we can
get those right, even if we have to subpoena them or go to court or
whatever?" SENATOR WARD asked where these notes were and MR.
GUANELI said the troopers have them somewhere but this material was
not related to APSIN and therefore unresponsive to the subpoena.
SENATOR WARD said, "in may be in the future" and he just wanted to
know where to get it.
Number 517
MR. NORSWORTHY remarked that the information MR. GUANELI had just
given the committee regarding Captain Savage and the Chappel case
was not in the information provided to him. MR. NORSWORTHY said he
had questioned the investigating trooper in this case (Hughes)
because he had concerns that there was no good explanation of Ms.
Alsterberg's detailed memory of the incident and Captain Savage's
recollection. MR. NORSWORTHY said Trooper Hughes had only an
unrecorded phone conversation with Captain Savage, not a face to
face interview as MR. GUANELI suggested. MR. NORSWORTHY asked when
MR. Savage had remembered that he was responding to a public
information request and if he had found any documentation to
support this. MR. GUANELI said he did not know when Captain Savage
remembered these details, but it was before the article in the
Frontiersman came out. CHAIRMAN TAYLOR asked if it was after MR.
GUANELI's report to the troopers. MR. GUANELI believed it was but
did not know if he had found any supporting documents.
MR. NORSWORTHY suggested if there is additional information, the
subpoena should be supplemented with those in order to dispel any
remaining questions. CHAIRMAN TAYLOR indicated that in the joint
hearing in May, both MR. GUANELI and Commissioner Otte assured him
that no stone would be left unturned in this investigation and they
understood the political overtones of these spontaneous outbreaks
of curiosity. CHAIRMAN TAYLOR said the notes turned over later to
the committee which said the legislators are not victims, this was
not a crime and which instructed troopers to downplay any questions
about unions and politics seems to be exactly the opposite of what
MR. GUANELI assured the committee he would do and which they waited
eight months for him to do. CHAIRMAN TAYLOR said MR. GUANELI's
department and DPS had extensive conversations with legislators
about their concerns about invasions of privacy and knew full well
what they were asking for. CHAIRMAN TAYLOR asked MR. GUANELI, "Did
you mislead, by your comments, this Legislature last Spring?". MR.
GUANELI replied that CHAIRMAN TAYLOR may have heard what he wanted
to but MR. GUANELI had been clear about his concerns regarding
inquiries into people's political beliefs, activities and
philosophies. He said he has been consistent on his advice to this
committee and to the state troopers and he stands by it.
CHAIRMAN TAYLOR asked if the Attorney General's office will, if
this resolution passes, abide by the request of the Legislature and
appoint a special prosecutor to do an independent investigation not
tainted by the individual conflict of interest that seem so
apparent at this point. MR. GUANELI said he did not accept any
characterization of a conflict of interest and could not
specifically answer the question as it is up to the discretion of
the Attorney General. He did say his advice would be that "there is
no factual, no legal, no basis whatsoever to appoint a special
prosecutor in this case."
Tape 98-39, Side B
Number 001
REPRESENTATIVE AL VEZEY testified, commenting that he sees a
serious flaw here and they should follow up this resolution with
some legislation. He said he knows that he was investigated and
this is a problem.
Number 582
MR. JOHN CRAMER testified via teleconference, saying that he was
employed by the City of Wasilla when he began to hear of
individuals within some law enforcement agencies looking into the
records of certain individuals. This prompted him to ask if his
report had been viewed and he was shocked to find that it had been
accessed several times. When talking to his family about this his
son asked, "Dad, what did you do wrong?" MR. CRAMER said most
people think to have a record with a law agency is due to some
wrongdoing. MR. CRAMER said he had long wanted to become a police
officer and take the oath of "loyalty, integrity and courage." MR.
CRAMER said as elected officials, their word is their bond. He said
an unfortunate situation like this makes the rest of them look bad
and this investigation was "like asking the fox to watch the
henhouse." MR. CRAMER concluded, requesting the state to appoint
a special prosecutor to conduct an unbiased investigation into
these cases.
Number 523
MR. DAVE CHAPPEL, deputy mayor and city council member of Wasilla,
also testified via teleconference that his APSIN records had also
been checked. MR. CHAPPEL sent a letter and spoke on the phone to
Del Smith saying he was concerned about this and also concerned
with Commissioner Otte's ties to the Palmer Police Department. He
said an independent investigation was needed.
MR. CHAPPEL was interviewed by a trooper and felt he was being
interviewed "simply because he had to do it." MR. CHAPPEL said the
troopers investigated the dispatcher who pulled up his record for
Captain Savage, who he believes was involved with the Palmer Police
Department and the Frontiersman newspaper.
MR. CHAPPEL said it is a scary thought that if you have a badge you
can investigate whomever you want, whenever you want. He said our
Constitution was violated. MR. CHAPPEL said he has much more to say
but added "I probably need to be quiet, I think I could be a
target...I am worried, good luck". He concurred with the previous
speaker about the need for a special prosecutor.
Number 469
CHAIRMAN TAYLOR said MR. CHAPPEL is correct to be worried; if more
than 80 people can have their privacy invaded without one single
criminal sanction being brought, there is no persons life or
privacy that is sacred.
Number 464
MS. SARAH PALIN, Mayor of Wasilla, said her records as well as
those of her husband have been accessed many times since her
election as Mayor 18 months ago. She said her records were accessed
the day she was elected, three days later, and again 20 days after
that. MS. PALIN indicated her records were also accessed again on
Oct. 24, the same day she asked department heads, appointed by the
previous administration, to re-apply for their positions with the
city. MS. PALIN said her records were also accessed during the time
she was interviewing a new Police Chief for Wasilla. MS. PALIN
said her husband's records, and those of members of her staff who
previously testified, have also been accessed numerous times for
"curiosity". MS. PALIN indicated that one of these accesses (to
MR. CHAPPEL's record) was by Captain Savage at the request of Mr.
Paul Stewart, a reporter for the Frontiersman. MS. PALIN claimed
there was also a case number relating to DAVE CHAPPEL's family
noted in Captain Savage's notebook on that day. MS. PALIN asked why
this was not investigated more fully, when "it is no secret that
the Frontiersman, at that time, was printing anything that could be
spun or construed as negative against the new administration".
MS. PALIN said she is frustrated that those who accessed the
records were given such a generous time frame to come up with
reasons and excuses to give to DPS. She said it is questionable if
anyone cares about the integrity of this system, and a few
blatantly political uses of this system cast this all in a really
bad light.
MS. PALIN remarked that as an elected official she would work to
protect every individual's rights. She supported the request for an
independent investigation and wanted to be able to assure citizens
that they are free to run for office without fear of unwarranted
and illegal searches.
CHAIRMAN TAYLOR asked MS. PALIN who it was she took her complaint
to. MS. PALIN replied originally she wrote to Kathy Mather of the
Department of Public Safety. She said two months later, she heard
back from Ms. Mather who told her the dates when her records and
those of her husband had been accessed. CHAIRMAN TAYLOR stated that
she was not provided with the names of the people that accessed her
because they didn't want her to know who it was. If she did, she
might be able to provide police with a motive for why these people
accessed her. MS. PALIN agreed, saying it seemed that DPS wanted to
protect their employees.
Number 369
CHAIRMAN TAYLOR asked if she had requested assistance from the
Department of Public Safety or the state troopers. MS. PALIN said
Ms. Mather's letter was also sent to Del Smith, who she later
contacted. Mr. Smith said he was looking into the matter and came
by her office a few months ago saying things had been completed and
everything "seemed pretty much on the up and up."
Number 350
CHAIRMAN TAYLOR asked MS. PALIN if she turned this matter over to
any other state or federal agency. MS. PALIN said she sent a letter
to the FBI but received no response.
CHAIRMAN TAYLOR suggested that after all these significant access
to the records of MS. PALIN, her husband and her employees, "the
whole thing, as far as you can tell, has been whitewashed by the
Department of Public Safety and the Department of Law." MS. PALIN
said she was left with the impression the department would get back
to her, but they did not.
CHAIRMAN TAYLOR asked MS. PALIN if she, her husband, MR. CRAMER or
MR. CHAPPEL had been interviewed by anyone from the Department of
Public Safety. MS. PALIN replied Investigator Hughes had called and
asked them each about 15 yes or no questions. CHAIRMAN TAYLOR asked
if she was told who accessed her records and she said no, she was
told all along that was confidential. She did not find out who was
involved until she read MR. NORSWORTHY's report.
Number 325
SENATOR WARD said after the joint hearing last May, he thought that
those 80 people would be questioned in about a week. He asked MS.
PALIN if this matter has incurred a cost to the City of Wasilla.
MS. PALIN replied that there has been a tremendous cost both
financially and otherwise. She said a lawsuit has been filed
against her as Mayor partially due to this matter.
SENATOR WARD asked if she beleieved that polygraph tests could have
been used to avoid this whole thing. MS. PALIN said she wished it
had been done.
Number 290
MR. CHAPPEL added to his testimony, saying he sent a certified
letter to Del Smith requesting assistance in this matter. He later
talked with Mr. Smith, but only found out who had accessed his
records when the committee released itsreport.
SENATOR ELLIS asked if CHAIRMAN TAYLOR's point is that it would
have been appropriate for the state troopers to disclose the names
of the accessors to the people who felt victimized. CHAIRMAN TAYLOR
said it is impossible to do an investigation that reaches to motive
without informing the victim who the alleged perpetrator was.
SENATOR ELLIS understood this point, but asked if current state law
precluded this. CHAIRMAN TAYLOR said police officers have no
confidentiality during an internal investigation. He said this
information might not be used for a criminal investigation but,
CHAIRMAN TAYLOR said, "You don't tell them the truth, you're not a
cop the next day." CHAIRMAN TAYLOR said this is what happened to
MS. ZABECK, who was fired for her curiosity. He said all the people
in these cases have the same fact pattern yet not one of them had
anywhere near the discipline she had. SENATOR ELLIS asked if it
would have been improper to disclose those names. CHAIRMAN TAYLOR
replied that civil rights relative to the disclosure of this
information doesn't protect a person from criminal activity.
SENATOR ELLIS asked if CHAIRMAN TAYLOR made a distinction that
disclosure should have occurred in some of these cases or if he
thought it should have happened in all cases. CHAIRMAN TAYLOR said
it should have occurred in all the cases in order for the trooper
to be able to develop a motive. CHAIRMAN TAYLOR used the case of
Adam Berg as an example, saying Representative Hodgins could have
provided troopers with a lot of information had he known who had
run his name.
SENATOR ELLIS asked if this disclosure had occurred, if the
committee wouldn't be accusing the departments involved of
violating people's privacy rights. CHAIRMAN TAYLOR replied there
might have been civil suits brought against those people in the
department, though this was not successful for MS. ZABECK.
Number 210
SENATOR ELLIS asked what the plan was and CHAIRMAN TAYLOR said they
had several more witnesses but had run out of time. MR. NORSWORTHY
chimed in and asked for a chance to respond to the criticisms made
of his report. CHAIRMAN TAYLOR said MR. GUANELI's comments about
MR. NORSWORTHY's report were not facts, but merely his allegations.
MR. NORSWORTHY assured CHAIRMAN TAYLOR he would be brief. CHAIRMAN
TAYLOR said he intended to hold another hearing on Monday, but gave
MR. NORSWORTHY a few minutes to comment.
Number 195
MR. NORSWORTHY said MR. GUANELI's criticism of his legal research
was specious. He said MR. GUANELI knows there is no legal precedent
relative to the three statutes involved. CHAIRMAN TAYLOR
interjected that we all know that and that is why DEAN GUANELI did
not cite a single statute or case behind his conclusions.
MR. NORSWORTHY argued that MR. GUANELI had used the same types of
phrases including "argueably" that he had criticized MR. NORSWORTHY
for. MR. NORSWORTHY said MR. GUANELI has also criticized him in the
press because he has never been a "career prosecutor". MR.
NORSWORTHY reported that he was a military prosecutor for two
years, he has been a criminal defense attorney and has a sub-
emphasis in his practice of dealing with police abuse issues.
Number 134
MR. NORSWORTHY said typically, new criminal statutes must be tested
in court. He suggested that when prosecutors have a case like this,
they do not sit around and argue it amongst themselves, they take
it to court.
MR. NORSWORTHY advised that a special prosecutor would need to look
at why none of the cases from the Anchorage Police Department and
the Department of Law were referred for trooper investigations. MR.
NORSWORTHY said DEAN GUANELI suggested that all these accesses were
relating to jury duty, but, when he was doing some follow up work
for the committee, he found a case in which a man named Casey
Sullivan had his file accessed at a time when he was not eligible
for jury duty and he had just filed as a candidate for office. MR.
NORSWORTHY said the cases from the APD and the District Attorney's
office have no explanation of requests, only a note from someone
saying they believed the access was legitimate. MR. NORSWORTHY
said the same types of cases emanating from other departments were
referred for criminal investigation. He said a special prosecutor
should not only look at the original APSIN accesses, but should
investigate if there was official misconduct or obstruction of
justice in the way the Departmnet of Law and the Department of
Public Safety handled the entire investigation.
Number 28
CHAIRMAN TAYLOR thanked MR. NORSWORTHY for his testimony and
predicted that the committee will pass the resolution out of the
Senate and ask the Governor to appoint a special prosecutor, which
the Governor will not do "because to do so will reveal some real
slime within his own Administration", according to CHAIRMAN TAYLOR,
who said the Legislature does not have the time, the resources or
the investigators to do this on their own.
TAPE 98-41, Side A
Number 001
MR. NORSWORTHY said MR. GUANELI had never before today said he was
concerned with violating the privacy of the individuals invloved.
MR. NORSWORTHY referred to a draft memo prepared after a meeting
around May 14th which laid out an investigative protocol that
included detailed questions about union and political involvement
but did not lead to the types of questions about political
philosophy suggested by MR. GUANELI. CHAIRMAN TAYLOR commented that
MR. GUANELI's statement was a red herring meant to distract the
press.
Number 25
MR. NORSWORTHY continued, asking what happenned between May 14,
1997 and May 19, 1997 to effect this dramatic change. He asked also
why the notes taken in that meeting did not reflect MR. GUANELI's
concern about invading people's privacy of political philosophy.
MR. NORSWORTHY said in the May meeting with the committee,
Commissioner Otte assurred the committee that "Dennis Cassanovas is
a bull-dog" and they would get the answers to their questions.
MR. NORSWORTHY said the committee would never have found any of
this out without issuing a subpoena and having someone review those
records. He found the letter to him by the Attorney Genral,
implying this investigation is a waste of time and money, shocking.
CHAIRMAN TAYLOR concluded that every Alaskan must be in fear of
their right to privacy. He said, "I can guarantee you there were at
least 80 people who had their privacy invaded by state employees in
an unauthorized, inappropriate and maybe illegal fashion, none of
whom are risking any sort of sanction or prosecution and this
Administration intends to whitewash the entire thing. That's the
reason we were here today."
CHAIRMAN TAYLOR thanked all the witness as well as the committee
members, announced this matter would be continued on Monday and
adjourned the Judiciary Committee at 5:15 p.m.
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