Legislature(2007 - 2008)Anch LIO Conf Rm
09/12/2008 09:00 AM Senate JUDICIARY
| Audio | Topic |
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| Start | |
| Matters Pertaining to the Legislative Council Investigation | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
ALASKA STATE LEGISLATURE
JOINT MEETING
SENATE JUDICIARY STANDING COMMITTEE
HOUSE JUDICIARY STANDING COMMITTEE
ANCHORAGE LIO
September 12, 2008
9:15 a.m.
MEMBERS PRESENT
SENATE JUDICIARY
Senator Hollis French, Chair
Senator Charlie Huggins, Vice Chair
Senator Lesil McGuire
Senator Bill Wielechowski
Senator Gene Therriault
HOUSE JUDICIARY
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative Ralph Samuels
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
SENATE JUDICIARY
All members present
HOUSE JUDICIARY
Representative Bob Lynn
Representative John Coghill
OTHER LEGISLATORS PRESENT
Senator Gary Stevens - via teleconference
Senator Kim Elton
Senator Lyda Green
Senator Thomas Wagoner
Representative Carl Gatto
Representative Kurt Olson
Representative Mike Chenault
Representative David Guttenberg
Representative Bryce Edgmon - via teleconference
COMMITTEE CALENDAR
Matters pertaining to Legislative Council Investigation
PREVIOUS COMMITTEE ACTION
No previous action to consider
WITNESS REGISTER
STEPHEN BRANCHFLOWER, Investigator
Legislative Council
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Commented on subpoenas.
TAMARA COOK, Director
Division of Legislative Legal and Research Services
Legislative Affairs Agency
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Commented on legal issues regarding
subpoenas.
ACTION NARRATIVE
CHAIR HOLLIS FRENCH called the joint meeting of the Senate and
House Judiciary Standing Committees to order at 9:15:29 AM.
Present at the call to order were Senators Therriault,
Wielechowski, McGuire, Huggins and Chair French. House Judiciary
members present were Representatives Gruenberg, Holmes, Samuels,
Dahlstrom and Chair Ramras.
^Matters pertaining to the Legislative Council Investigation
CHAIR HOLLIS FRENCH said the question before the committee is
whether to issue subpoenas to witnesses whose testimony is
sought by Mr. Branchflower. Mr. Branchflower's task as set out
by unanimous vote by the Legislative Council Committee on July
28, 2008 is, "to investigate the circumstances and events
surrounding the termination of former Public Safety Commissioner
Monegan and potential abuses of power and or improper actions by
members of the executive branch and prepare a report."
9:17:19 AM
CHAIR FRENCH said the same motion made him the project director.
Again, he said the issue before the two committees is fairly
straight forward and fairly narrow - should the subpoenas be
issued or not. The statute that authorizes this action is AS
24.25.010(b), which reads as follows:
A subpoena requiring the attendance of a witness
before a standing or special committee of the
legislature may be issued by the chairman of a
committee when authorized to do so by a majority of
the membership of the committee and with the
concurrence of the president or the speaker.
SENATOR THERRIAULT remarked that Senator French just stated that
the purpose of the meeting is "to consider," but the press
release that was put out last Friday said the meeting was going
to be held today to issue subpoenas as if the outcome was
already presupposed. In addition, he said there is a statement
that they agreed on an earlier completion date on the report
that would be fair to all sides. He asked where the statement
that subpoenas would be issued today came from and also where
the authority that an earlier completion date should be set came
from. He thought the motion talked about a report being done in
a timely manner; nothing stated a completion date or gave
authority to compel any date.
9:19:39 AM
SENATOR FRENCH responded the subpoenas clearly won't be issued
until there is a vote and concurrence by the presiding officer
of either body. As to the earlier report date, he discussed that
with the chair and vice-chair of the House Judiciary Committee,
Representative Jay Ramras and Representative Nancy Dahlstrom,
and the chairman of the Legislative Council, Senator Kim Elton.
There was concurrence in getting the date of the report as far
away from the November election as possible.
SENATOR THERRIAULT asked what if the date was November 10.
CHAIR FRENCH asked if he was making a motion.
SENATOR THERRIAULT replied no; he's questioning why the
investigator is being directed on the delivery date if he's not
being directed about how to conduct the investigation.
9:20:24 AM
CHAIR JAY RAMRAS [House Judiciary Committee] said he would speak
to his own conclusions that were reached in the only meeting he
had with Mr. Branchflower. For the benefit of the record in both
bodies, he requested a meeting with Mr. Branchflower prior to
any national implications that have since transpired. He invited
the vice chair to that meeting. Their conversation went to when
the interviews would be concluded, how long it would take to
write the report and the most timely manner in which that report
could be presented to the project manager.
His sense is that this was not to have any implications for the
State of Alaska's election cycle, and because of the unforeseen
circumstances Alaska finds itself in, he thought it would be in
the best interests of the State of Alaska and the Alaska State
Legislature as an institution to move forward in a measured and
disciplined fashion and to complete this report in a timely,
responsible fashion.
CHAIR RAMRAS said that he also read the newspaper reports that
suggested the report could come out October 31, but Mr.
Branchflower said he thought a report could be written in 10
working days. So, "we asked him to put together the report in as
timely fashion as possible to move it away from the election
date that faces us in November."
9:22:48 AM
SENATOR THERRIAULT said it seems like this is getting into a
pitched battle between branches of government over subpoena
powers and he isn't sure what amount of time it might take to
muddle through that. He doesn't agree with the suggestion that
an earlier date might somehow help the situation and thinks it
potentially exacerbates it. Plus, he said if there is any move
afoot to have any kind of an October surprise, he doesn't know
if it is any less troubling if the date is October 31 or October
10.
9:23:45 AM
SENATOR FRENCH responded that this discussion is best had with
the person who is actually doing the work.
9:24:00 AM
SENATOR BILL WIELECHOWSKI said that October 31 was initially
chosen because that is the date Mr. Branchflower's Legislative
Council contract expires. He reminded the body that the contract
was issued by a vote of 12 to nothing, unanimously, by a
bipartisan group of legislators that consists of eight
Republicans and four Democrats who are House and Senate members,
minority and majority members. The goal at that time was to get
it done as quickly as possible. Further, he said, "This was an
investigation, quite frankly, that was welcomed by the Palin
administration. It was an investigation that the Governor
repeatedly said she welcomed and she would fully cooperate
with."
SENATOR THERRIAULT said he believes the administration and those
members who cast that vote thought at the time that the
direction would be outside the political realm. Based on
comments that have been made, he understands the
administration's concern that they were not going to get a fair
shake. Some members of the Legislative Council have written to
the chairman that they want a new meeting to review what has
transpired since that initial vote was taken. He said the chair
runs the risk of being replaced under Mason's Manual Sections
577 and 581 if, in fact, he refuses to convene a meeting to
thwart the will of that body.
9:27:07 AM
SENATOR FRENCH responded that's a matter for the Legislative
Council and outside of the issue that is now in front of the
committee.
9:27:19 AM
STEPHEN BRANCHFLOWER put himself on the record. He said he
arrived in Anchorage in 1965; he attended the Alaska Methodist
University where he graduated in 1968; he attended the
University of Arizona Law School and graduated in 1973. He went
to work for the Anchorage DA's office in September 1974 and
departed in 1998. His work consisted primarily of reviewing
cases, felony intake and working major crimes trials. In 1998 he
was appointed by Bruce Botehlo to be the director of the Alaska
Medicaid Fraud Control Unit. He retired in 2002 and was
appointed by the Legislature that year to head up the new office
of the Office of Victims Rights. He stayed there until 2005 when
he retired. He currently resides in the state of South Carolina.
In summary he said he has been practicing law for 31 years and
he resided in Anchorage for 40 years.
9:28:54 AM
MR. BRANCHFLOWER said he would give a procedural overview of the
investigation to date. He is mindful of the political
implications of the investigation and he wants to keep his
comments short and to the point. This is an ongoing process and
he is here today to ask for legislators assistance in getting it
completed.
He reported that he started the job on August 11 in his office
st
that's located at 310 K Street. This is the 31 day of the
investigation. During that time, he has identified 33
individuals who have relevant information about the scope of his
work. He has taken 11 sworn statements so far. He clarified,
"When I say statements, I'm talking about sworn tape recorded
statements where the witness has been sworn by a court reporter.
I do the recording on my own equipment. I submit the audio file
to a certified court reporter who then prepares the certified
transcript."
He reported that he has taken two unsworn tape recorded
statements; one from an employee of the Municipality of
Anchorage who is not involved and the other one from a former
Department of Public Safety (DPS) employee. The latter is
reviewing the transcript and will be submitting an affidavit
attesting to the truthfulness of her statement. He has also
taken three traditional depositions for a total of 16 statements
"that are in the can so to speak."
MR. BRANCHFLOWER said he wants to interview 14 people, 13 of
th
which he is asking subpoenas for; the 14 is Governor Palin.
Additionally, he is asking for a subpoena for the telephone
records of Frank Bailey.
9:31:47 AM
MR. BRANCHFLOWER said he wants to explain two things, one is the
difficulty he has had contacting and enlisting the cooperation
of each of these individuals to give him a statement, and
secondly why he thinks each of them have something to
contribute.
The first one is Frank Bailey. Mr. Bailey made the recorded
telephone call to Trooper Rodney Dial on February 29, 2008. The
Governor's office placed him on administrative leave and it was
stated that by doing so, they could direct him to assist Mr.
Branchflower. He exchanged emails and telephone calls with Mr.
Bailey and finally established a deposition date on September 3
for two hours. However, Mr. Bailey decided he didn't want to
give a statement. He said he could go into greater detail, but
he feels it is fairly obvious from the transcript he expects
most of the committee has reviewed.
MR. BRANCHFLOWER said Mr. Bailey gave a statement to Mr.
Barnhill on August 4, and according to a Newsweek article
published on September 5, he has also given a deposition to Mr.
Van Flein who is a lawyer for the Governor's office. "So he
apparently has something of value to contribute; he has not
talked to me. I'm here to ask for your assistance to issue a
subpoena for him so that I might share in whatever it is that he
knows."
9:33:33 AM
The next individuals on the letter, Mr. Branchflower said,
should be taken together - Annette Kreitzer, Commissioner of the
Department of Administration (DOA), Dianne Kiesel, former
director of the Division of Personnel and Labor Relations in
DOA, Nicki Neal, current director of the Division of Personnel
and Labor Relations DOA, and Brad Thompson, director of the
Division of Risk Management in the DOA. He continued:
Let me tell you why I have not been able to speak with
them and why I need to speak to them. First of all,
all four of these witnesses were cooperative with me
initially, and, in fact, we had times and dates set
up. Kiesel's was set for September 4 at 10:00; Nicki
Neal was set for that same day at 1:30, Brad Thompson
for September 5 at 1:30 and Annette Kreitzer was
scheduled for September 8 at 10:00. The attorney
general's office cancelled those on September 4, and I
received a letter from Mr. Barnhill that day that says
that all of the depositions of the Department of
Administration employees were cancelled until further
notice and that as of that date the Attorney General
now represented all Department of Administration
employees.
MR. BRANCHFLOWER said the letter stated the concern related to
consequences regarding the possibilities that Department of
Administration employees may have disclosed matters relating to
employees' personnel records. Mr. Branchflower offered to
address this in a follow up question if someone wanted to ask.
9:35:18 AM
SENATOR THERRIAULT said that is an important point. The chairman
made a statement about possible criminal charges, referring to
anybody having access to personnel records, but there is a
difference of interpretation of the state law on whether, in
fact, people in the chain of command in the executive branch
have a right to look at those records. Based on the suggestion
that they might have committed some crime and might be up for
possible criminal sanctions, the attorney general's office,
based on that misunderstanding, advised them not to cooperate.
He doesn't want to get into a pitched battle forcing subpoenas.
If they could get some clarification on that issue, the attorney
general's office has said those people would come forward
willingly thus avoiding a test of strength between branches of
government.
9:36:29 AM
MR. BRANCHFLOWER agreed with his concern and having just learned
about it in a news article, said he could defuse it right now.
"As far as I'm concerned, it's a non-issue and let me tell you
why."
He said three statutes are involved: AS 23.30.107, which deals
with the release of confidential information; AS 39.25.080,
which deals with personnel records stating that they are
confidential; and AS 39.25.900, which is the penalty provision.
The key to understanding this issue is to focus on AS 23.30.107
(b)(1), which says:
'Medical or rehabilitation records in an employee's
file maintained by the division (Workers' Compensation
Division) or held by the board are not public records
subject to public inspection and copying under AS
40.25. This subsection does not permit the
reemployment benefits administrator, the division, the
board or the department from releasing medical or
rehabilitation records in an employee's file without
the employee's consent to a physician providing
medical services or a party to a claim filed by the
employee or a governmental agency.'
Now the Governor's office is a governmental agency. So
if medical records or personnel records were released
by the division to the Governor's office, for the sake
of argument, let's assume that that happened, in my
view, that would be authorized under the statutes. So
it would not be a crime; it would not be a
prosecutable offense. And I think somewhere along the
line, a party sort of got cross threaded and there is
a belief on the part of the attorney general's office
that I believe that that's a punishable offense. I
don't subscribe to that view. As far as I'm concerned
it's a non-issue because of the statute. It would be
a misdemeanor to violate the statute, and I think
that's what they are concerned about.
Now there is a separate problem, which is that this
statute is in-artfully drafted because it permits what
I've just described, that is, release of confidential
information to a governmental agency. So without
specifying any need for it, or demonstrated need for
it - so for example, somebody from the Fish and Game
Department might ask for someone's medical records
from the Department of Highways and not have any
legitimate need to review those records. This statute
needs to be revised; it needs to be redrafted, and
what needs to be incorporated is a requirement of some
legitimate purpose, some nexus between the request and
the need. Right now that statute does not require
that, and so it is subject to problems.
So as far as I'm concerned, it is a non-issue and what
I am hopeful for is that I can sit down with Mr.
Barnhill and Mr. Van Flein and try to come up with an
expedited schedule, get these witnesses in and to work
cooperatively, get their statements on record, to have
depositions that are short and pointed without going
down a lot of rabbit rails. And with the end of
complying with the accelerated schedule that we are
working on right now, the release date of October 10.
9:40:25 AM
SENATOR FRENCH interrupted to explain how subpoenas work:
If the committees decide to issue subpoenas, the
returns are taken back before the committee. There is
no way to delegate the subpoena return to a hearing or
deposition in Mr. Branchflower's office. But it's not
our intention to force that issue. If a witness who is
subpoenaed chooses to meet with Mr. Branchflower or if
they are able to work out some kind of a mutual
agreement, in my view as project director - I think
the Leg Council chairman's view is the same - that
that's completely fine - if they want to go and sit
with Mr. Branchflower and give a deposition in his
office with their attorney or whoever else they want
to bring. Again I think that's just another attempt to
diffuse this and keep it on as even a keel as
possible.
9:41:18 AM
SENATOR THERRIAULT asked Mr. Branchflower if he could get
cooperation without the issuance of a subpoena would that be the
preferable way to move forward.
MR. BRANCHFLOWER answered, "I think that would expedite the
process." However, he said "There is a risk that if subpoenas
are not issued there might be some other problems that might
arise that might forestall the inclusion of that testimony in
which case I think the report would suffer. Because my view is
that I want to maximize the evidence, and then let the reader
decide."
9:42:47 AM
SENATOR THERRIAULT said it appears that the arbitrary deadline
of October 10 is driving Mr. Branchflower's investigation and
that Mr. Branchflower should have as much time as he needs to
get to an agreement with the Department of Law on whether, in
fact, there is a risk of anybody coming forward exposing
themselves to criminal sanctions or not. The Legislative
Council's motion was that it be done in a timely fashion, not
that it be done in an accelerated fashion.
9:43:33 AM
SENATOR WIELECHOWSKI reminded members that they had previously
set a meeting whereby they were to discuss issuing subpoenas and
that was cancelled because at that time the administration said
it would fully cooperate. He asked Mr. Branchflower if he would
be able to institute criminal proceedings on his own or if
Senator French could.
MR. BRANCHFLOWER replied no.
SENATOR WIELECHOWSKI asked who would institute criminal
proceedings if criminal behavior was found.
MR. BRANCHFLOWER replied the Attorney General or perhaps the
Office of Special Prosecution. It would have to be some state or
federal executive authority. He emphasized that he just didn't
see that on the horizon.
9:45:05 AM
REPRESENTATIVE GRUENBERG said he was troubled because the
Governor asked the Attorney General to investigate this project
after the Legislative Council started it. And now Mr. Barnhill
in the attorney general's office is acting like an advocate and
he saw a potential conflict of interest there. He pointed out
the very basic rules of professional conduct, Rule 1.7,
prohibits conflicts of interest and Rule 1.10 imputes
disqualification to everyone in the same law firm. "Looking at
the attorney general the same as a firm, do you have any comment
on this?"
MR. BRANCHFLOWER replied that each lawyer has to decide the
question of conflict and live with the consequences; he has
stayed away from that issue because any movement on his part in
that direction would not advance his work.
REPRESENTATIVE GRUENBERG remarked that the question stands
unanswered.
9:46:19 AM
SENATOR THERRIAULT said that a conversation with one of the
prospective witnesses revealed that, based on the advice of
independent legal counsel, he chose not to be interviewed
because of Mr. Branchflower's statement about possible criminal
sanctions and public humiliation if he didn't come forward. If
that can be cleared up, maybe there isn't need for the
subpoenas.
9:48:31 AM
MR. BRANCHFLOWER stated that as an experienced prosecutor with
many years of service, he is mindful of how to deal with
witnesses. He said:
And I have told no witness, contrary to what you have
been told, I have told no witness that they risk
criminal prosecution, because I don't see that as my
function. I have told no witness that they would
suffer public humiliation or however you phrased it. I
have been polite, respectful and professional in all
my dealings. And if anyone has said anything to the
contrary, it is not true.
He said he would dispute any claims made by an advocate on the
behalf of an individual that he is trying to get information
from. He asked Senator Therriault to be mindful of that person's
adversarial role in relation to his and urged him to question
the validity of such claims.
9:49:56 AM
REPRESENTATIVE DAHLSTROM asked Mr. Branchflower to comment on
some of the things they've heard in the last 24 hours about
quashing subpoenas if they were issued.
MR. BRANCHFLOWER replied an article in the paper this morning
seemed to say that if subpoenas are issued, that there might be
an effort undertaken to quash them because of a potential for
criminal prosecution. That is a non-issue for him as he said
earlier in referencing AS 23.30.107. He hopes his clarification
will put that issue to rest and give the lawyers for the
Attorney General and the Governor's office some assurance that
he agrees with their view. Going to court to quash subpoenas is
procedurally difficult and it raises a question of which forum
to go.
9:51:54 AM
He said that the bottom line is that it is not necessary and, it
would prejudice the outcome of the report simply because it will
deprive him of a fund of information, that is, witness
statements, that the public can benefit from. He sees no reason
to not cooperate. In response to Senator Therriault's earlier
comments, he said the subpoenas are necessary because while they
will hopefully get over this little bump in the road, others may
arise.
CHAIR FRENCH asked him to proceed down his list of requests.
9:52:24 AM
MR. BRANCHFLOWER said he was addressing four individuals
together: Annette Kreitzer, Dianne Kiesel, Nicki Neal and Brad
Thompson. He had stated that he set up depositions for them and
he had mentioned Mr. Barnhill's letter. Those people now are not
available to him.
He has reason to believe that Mr. Tibbles, who is a former chief
of staff for the Governor, called a meeting on November 19, 2007
to discuss Michael Wooten who was in the process of coming back
to work after a workers' compensation injury. He believes the
people who were present at this meeting in Mr. Tibbles' office
were Kevin Brooks, the deputy commissioner of the Department of
Administration, Nicki Neil, director of the Personnel Division,
and Dianne Kiesel, former director of Personnel and Labor
Relations. Kevin Brooks took notes. Mr. Branchflower said he
interviewed Mr. Brooks under oath and he provided a copy of the
notes he took at the meeting. They corroborate some things that
were said and while he would prefer not going into detail, he
was prepared to do so. They dealt with Trooper Wooten and what
to do with him - placement, job classification and some other
things. All of those things are relevant to my investigation, he
said. That is why he is asking for assistance in issuing the
subpoenas for those four individuals.
9:54:27 AM
SENATOR THERRIAULT asked the date of that meeting.
MR. BRANCHFLOWER replied it was November 19, 2007 according to
Mr. Brooks' notes.
SENATOR THERRIAULT said the Department of Law (DOL) has taken
some statements and turned those notes over to him.
MR. BRANCHFLOWER said that is correct.
SENATOR THERRIAULT asked if they were verbatim or just notes.
MR. BRANCHFLOWER explained that prior to his involvement in this
case at the end of July and during the time in which there was
public discussion about doing an investigation amongst
legislators, the Attorney General directed two individuals to
undertake an internal investigation. He appointed Mr. Barnhill
as the point person, and another assistant attorney general,
Susan Cox, to assist him. They selected eight to twelve
individuals to interview and get information about Mr. Wooten,
but he didn't know what basis was used to select them. That
group was referred to in a memo by the attorney general as "the
witness list." Mr. Barnhill and Ms. Cox each took notes. The
first Wednesday after he was hired, he set up a meeting to meet
and greet the Governor, the Attorney General, Mr. Barnhill and
Mr. Nizich, and he was told that he would be provided those
notes.
His meeting occurred immediately following the Governor's press
release during which Mr. Bailey's tape recorded statement was
released. He didn't know about that at the meeting; he was
driving to it when the press release was taking place. He was
also given a large amount of confidential material consisting of
personal records, workers' compensation records, disciplinary
records, et cetera. In total he reviewed hundreds of documents
as well as the notes taken by the DOL folks. Some of the notes
are clear although Mr. Barnhill's writing is hard to read. From
the notes, however, it is "pretty clear" that these folks have
relevant information. Simply relying on the notes is not
sufficient for his purposes.
9:57:31 AM
REPRESENTATIVE GRUENBERG asked why Mr. Tibbles is not on the
list.
MR. BRANCHFLOWER deferred that question to the chair.
9:57:52 AM
SENATOR THERRIAULT asked if he or Senator French put the list
together.
MR. BRANCHFLOWER replied that he put the list together in
talking with Senator French. He wants to talk to Mr. Tibbles,
but he is represented and not available to him.
SENATOR THERRIAULT said he doesn't know why that question has to
be deferred to Senator French if it's his list.
MR. BRANCHFLOWER said he's not sure why his name was removed
because his initial request was to have his name included on the
list.
CHAIR FRENCH added that in conferring with his co-chair and Mr.
Branchflower, it appeared that the political will wasn't there
to subpoena Mr. Tibbles, but he added, "If you would like to put
his name forward in a separate motion, that's certainly your
right as a member of the committee."
SENATOR THERRIAULT said, "I don't understand who's putting
together this list. Is it Mr. Branchflower or is it we
politicians?"
9:59:06 AM
CHAIR FRENCH said, "If you'd like to vote on a motion for a
subpoena, you're here today and that's certainly within your
prerogative."
9:59:19 AM
SENATOR THERRIAULT said, "Either Mr. Branchflower conducts his
investigation without direction - and now we know he's being
directed on the date and changing what he's doing and how he's
doing it because of time pressure that he's feeling. And now
we're hearing that people that he's trying to get information
from - there's a direction going on on that too."
CHAIR FRENCH responded, "I think your position is clear, and I
think mine is clear, as well. Mr. Branchflower, please proceed."
9:59:52 AM
MR. BRANCHFLOWER moved on to Mr. Nizich, the Governor's current
deputy chief of staff, who was interview by Susan Cox on August
6. He commented:
From those [Ms. Cox's notes] notes it appears that
Frank Bailey talked to Nizich about Mr. Wooten - told
him several things that he had done, he being Mr.
Bailey, had done. Nizich is the one who fired Walter
Monegan at the Governor's direction. Mr. Nizich has
spoken to Mike Tibbles about this matter; Tibbles told
Nizich that he had talked to Monegan about Mr. Wooten.
Tibbles said that he knew it was an issue for Todd
Palin, so I feel it's necessary to talk to Mr. Nizich
about these things and other things as well. And
that's the reason I'm seeking a subpoena for him.
10:00:58 AM
John Bitney, former legislative liaison for Governor
Palin, to my knowledge, he is not represented. I spoke
to him about what his involvement was in this matter,
what he knew about it. I spoke to him on September 3;
I took some notes. He told me that he was willing to
provide a deposition and it has been tentatively set
th
for September 15, excuse me, the 16, but he has
requested the issuance of a subpoena. I told him that
would be fine.
In terms of what he knows, he told me that he and
Governor Palin and Todd Palin have been life-long
friends and known each other since the seventh or
eighth grade. He has had conversations with Ted Palin,
excuse me, Todd Palin, about Mr. Wooten, both in
person and on the phone and some other matters as
well, that I don't want to get into right now in this
public forum. But I think he definitely has some
information to provide and I want to get it.
Ivy Frye is the next person on my list. She is the
special assistant for constituent and external affairs
for Governor Palin; she is represented by private
counsel. Her deposition had been set for September 8
at 3:00 p.m.; she was interviewed by Susan Cox on
August 12; she has talked to Mr. Bailey about Mr.
Wooten and while Ms. Frye was formerly at the
Department of Administration, she told Ms. Cox that
she may have heard some comments about Wooten by folks
there at the DOA. She has received an email from Frank
Bailey about Mr. Wooten; she told Susan Cox that she
has emailed Todd Palin about the Governor's business
on Todd's private email line, account, I should say.
10:02:53 AM
Kris Perry is the director of the Governor's Anchorage
office, and given her position it seems logical to me
that she must know about discussions about Wooten. She
was never interviewed by Cox or Barnhill and I'm not
sure why that is, but my experience tells me that it's
worth looking into, because she is such a central
person within the Governor's office, and yet she was
not interviewed. She was cooperative; she had agreed
to a deposition with me on September 11 at 9:00 a.m.
and that was cancelled.
10:03:36 AM
By the way, when I say deposition, it's sort of force
of habit. A deposition - and I have been using the
term deposition when on some occasions I mean taking a
tape recorded statement that is under oath, recorded,
and where the person is sworn by a court reporter as
opposed to what is traditionally referred to as
depositions where there's notice, and there's more of
an adversarial sort of meeting where both parties are
there. There's direct cross-examination and re-cross.
Just a point of clarification.
10:04:03 AM
SENATOR THERRIAULT said that generally in a deposition, a person
can be sworn in and asked anything. He asked under what
procedures he is operating as far as what happens with that
information. Could it become public?
MR. BRANCHFLOWER replied that's correct; a deposition is
sometimes referred to as discovery. That has been the purpose of
his statements - to discover what happened. It's a fact
gathering device. His plan is to have all of these tape recorded
statements transcribed, which is being done. He has preserved
the audio files, and at the conclusion of his work when he
submits his report he will attach the transcripts to the report.
The reason that is necessary is because the report will discuss
what the evidence is and will have references to the record. He
explained:
I feel it's important that whatever I say, I be able
to document and anchor it to statements that have been
given so that the reader can flip through that page
and see for themselves what the context of the
question was, what the context of the response was.
He plans to attach the transcripts and provide Senator French
with the disk that contains all of the audio files. If this
matter is to be posted on line, he would request that those be
posted as well. He explained why:
Because a great part of what people say comes not only
from the words they use and as are seen in the whole
transcript, but also the inflections of the voice and
the demeanor of how the person speaks. So between the
transcripts and the audio file, I think a person will
become informed as to what happened.
10:06:09 AM
SENATOR FRENCH interjected that the only caveat is that the
material will actually go to the Legislative Council, the
committee that authorized the investigation. Before they release
any material it has to go through the prism of the
confidentiality and personnel laws to make certain that nothing
made confidential by law is released in the course of this
investigation.
MR. BRANCHFLOWER said he has segregated the material into
separate stacks and identified it for the Legislative Council.
10:06:58 AM
SENATOR THERRIAULT said he imagines that a number of people are
concerned about what gets used. A court proceeding would have
well-established procedures.
MR. BRANCHFLOWER agreed that there is not a lot of precedence
for a proceeding like this, although there are statutes that
discuss the issuance of subpoenas, contempt and so forth. But
this particular undertaking lacks the traditional tools an
investigator has such as access to a grand jury, subpoenas,
search warrants, applications that take place on an ex parte
basis, not in a public forum. For example in a traditional
proceeding, someone in his position would not have to make an
application to a body for a subpoena and in the process disclose
matters that are the subject of the investigation. The work he
is doing needs to be done as there are good reasons for it.
10:09:43 AM
SENATOR THERRIAULT said one of the things that got the ball
rolling is that there was no action before the Personnel Board,
and there is now. So, when Mr. Branchflower says it needs to be
done, could it be done by the Personnel Board with an
established set of procedures and clear delineation of powers
and protection of witnesses. "Is there some reason this is a
preferable way than that?"
10:11:07 AM
MR. BRANCHFLOWER replied:
Well, I have no experience with experience with a
matter before the Personnel Board. However, it's my
understanding that complaints that are lodged with the
Personnel Board require the involvement of the
executive, specifically the attorney general who has
to appoint someone to investigate it. So, that gets me
back to a concern you had expressed or someone had
expressed earlier about conflicts of interest. So
that's one issue.
The second issue is - and I don't have enough
information yet to say that matters that I've
discovered so far are limited to ethical issues. The
charge has to do with wrong doing. So I'm not sure how
to reckon those two. I'm not saying that it's not
possible to do; I just am saying that I don't have
experience sufficient to address the question with the
Personnel Board.
10:11:37 AM
SENATOR THERRIAULT suggested that wrongdoing is always
unethical, so he doesn't think that would be a problem. An
investigation under the previous administration resulted in the
resignation of the attorney general, so he thinks that process
has been proven to work. The Personnel Board's process seems to
work and this effort has a lack of clarity.
10:12:04 AM
SENATOR FRENCH said the issue before them is whether this body
should issue subpoenas. It's a fairly narrow focus. He
understands that it's impossible to avoid discussions about the
broader political context, "but clearly the legislature has the
inherent authority to investigate acts by the executive branch.
That's just part of our, you know, three-legged stool of a
government. And that's what we're here for."
10:12:26 AM
REPRESENTATIVE GRUENBERG said he has two questions. One is that
Mr. Branchflower indicated, as a prosecutor, he has routinely
put people under oath. The statute that governs legislative
investigations by committees, AS 24.25.060, entitled oath and
penalty for violation of oath is as follows:
The president of the senate and speaker of the house
of representatives and the chairman of every committee
of either body may administer an oath to a witness
before appearing before their respective bodies. A
person who willfully swears or affirms falsely
concerning any matter material to the subject under
investigation or inquiry is guilty of perjury and upon
conviction is punishable by imprisonment for not less
than one year and no more than five years.
He then asked Mr. Branchflower if he had any doubt of his own
ability to place people under oath in this matter.
10:13:40 AM
MR. BRANCHFLOWER said he hadn't considered that. His preference
has been to have a third person place the person under oath for
a couple of reasons. He wanted to avoid any appearance that
people might draw from him placing them under oath. It's a
solemn undertaking and it should be done by a separate person.
Also all of the people who have spoken to him so far have done
so willingly. He has asked them for their statement and he has
informed them that they will be placed under oath and that at
the conclusion of his work, they would be provided a copy of the
transcript and the audio file if they wished. Some expressed an
interest in doing it and some have not. No threats were made;
all these people came forward, they arrive at his office on
their own and they talk to him and at the conclusion of the
interview they leave. He again stated that he did not use any
heavy-handed action and if anyone says anything to the contrary
it's not true.
10:14:56 AM
REPRESENTATIVE GRUENBERG asked if he used someone else to place
these people under oath now.
MR. BRANCHFLOWER replied he used a court reporter, an
independent contractor, who is very experienced. She has all her
own equipment and he has no personal ties to her or financial
interest in her business.
10:15:34 AM
REPRESENTATIVE GRUENBERG asked if Mr. Barnhill and the Attorney
General have been advising Ivy Frye and Kris Perry from the
Governor's office not to cooperate.
10:16:41 AM
MR. BRANCHFLOWER replied the question of who represents who is
not clear to him. He has sent at least two emails to Mr. Van
Flein posing that specific question. He has stated that he
represents quote "the Governor's Office." The online directory
indicates that office has 55 people, but he is not interested in
all of them; he is interested in just a few. Maybe who exactly
Mr. Van Flein represents could be clarified.
To answer the question, early on in August, Mr. Barnhill was
representing everyone - all government employees, and he based
that belief on the memo that the Attorney General sent out
encouraging people to cooperate and be truthful with him [Mr.
Branchflower]. Mr. Barnhill sent out a letter that said if
anyone had a question or was interested in talking about
representation they could consult him. He thought that was
directed to the "witness list," some of whom are Governor
Palin's employees. Mr. Van Flein entered the picture and that's
when the claim was made that he represents all of the Governor's
office. If Mr. Van Flein represents the Governor and the
Governor's employees, he didn't know exactly who Mr. Barnhill
represents. By his letter, it was the employees of the
Department of Administration and perhaps other individuals as
well.
CHAIR FRENCH asked Mr. Branchflower to proceed with his list.
10:17:51 AM
MR. BRANCHFLOWER said the next person on his list is Janice
Mason, scheduler and executive secretary to the Governor. He
explained that the Governor was elected in November 2006 and
sworn in on December 5, 2006. Right about that time, a little
after the swearing in, someone, a female, from the Governor's
office called Commissioner Monegan's secretary to set up an
appointment with him and the first gentleman, Todd Palin. That
appointment was scheduled for January 4, 2007. He has taken a
tape recorded statement under oath from Mr. Monegan's secretary.
10:19:14 AM
According to Mr. Monegan's statement, the meeting occurred on
January 4 in the Governor's office. The persons present were Mr.
Monegan and Todd Palin; the subject of the meeting was Michael
Wooten. Mr. Palin provided Mr. Monegan with some records, a
portion of which had to do with a private investigation that he
had undertaken.
Mr. Monegan's secretary was not sure if it was Janice Mason who
made the call or another female, but she was certain about the
date and the event that he just described. He suspected it was
Janice Mason for two reasons. One is that she is the Governor's
scheduler and executive secretary and secondly, not too long
ago, Janice Mason called the Department of Public Safety (DPS)
secretary who remained even though Mr. Monegan has departed. It
was Janice Mason who called the secretary on July 22 seeking a
copy of Mr. Monegan's online calendar and Ms. Mason was told
that his email account had been cancelled and it would not be
possible for the secretary to access that information. For all
those reasons he believes it was Janice Mason, and the purpose
of his desire to talk to her is that he wants to know who asked
her to schedule the meeting between Mr. Monegan and the first
gentleman and what the circumstances were.
10:20:40 AM
MR. BRANCHFLOWER said the next person on the list is Todd Palin,
husband of the Governor. He said there is enough evidence in the
public record to support the claim that he is the principle
critic of Trooper Wooten. He has had many contacts with DPS
personnel over the last several years and has made many comments
about how it appeared that DPS was not doing its job because of
Wooten; he wanted him fired. Mr. Branchflower said he didn't
know if Mr. Palin is represented or where he is. He was hoping
the subpoena, if issued, would permit him to interview him. He
has spoken to numerous DOA employees about Mr. Wooten and, "I
think because he's such a central figure to the events of the
subject of my enquiry that I think one should be issued for
him."
10:21:30 AM
CHAIR FRENCH noted that Representatives Johnson and Roses joined
the committee some time ago.
10:21:45 AM
SENATOR THERRIAULT asked if in the deposition with Mr. Monegan
he asked him if he had been asked to fire Mr. Wooten at that
meeting and if the general concern was about the Governor's
security.
MR. BRANCHFLOWER didn't remember that, but he recalled the
thrust of the interview was that Mr. Palin was complaining to
Commissioner Monegan that the investigation that had already
taken place under the prior administration by former Colonel
Grimes and the disposition of it, which had been agreed to by
the PSEA and the administration under Commissioner Tandeske,
that that didn't solve the problem for Mr. Palin. He disagreed
with it and thought it was an inadequate and insufficient
measure, the measure being suspending Mr. Wooten for five days.
In this meeting he was asking Commissioner Monegan to revisit
something that had already taken place during the prior
administration in light of some additional evidence he was
providing. He gave that evidence to Mr. Monegan and asked him to
look into it; Mr. Monegan agreed to do that and, in fact, took
steps to see whether or not there was new evidence and if it
would make a change. He detailed some folks to do that and they
made a page by page comparison of the investigation that had
been done earlier and the result was, as reported by Mr.
Monegan, that there was nothing new.
10:24:03 AM
SENATOR THERRIAULT asked if Mr. Palin asked him to fire Mr.
Wooten.
MR. BRANCHFLOWER replied not during that meeting, and he hasn't
at this point uncovered any evidence where Mr. Palin posed that
question directly.
CHAIR FRENCH asked him to continue with his list.
10:24:24 AM
MR. BRANCHFLOWER said Randy Ruaro, Deputy Chief of Staff,
recently promoted, is on the list. He was interviewed by Susan
Cox on August 8; her notes indicate that he had at least two
conversations with Todd Palin about Mr. Wooten.
10:25:15 AM
MR. BRANCHFLOWER said the next witness is especially important
and he wanted to take a long minute to detail why he wants her
subpoenaed. He was referring to Murlene Wilkes, the owner of
Harbor Adjusters in Anchorage. She has a contract with the State
of Alaska to handle workers' compensation cases. She handles
hundreds of them at any one time. He received information in
August that someone from the Governor's office or the state had
advised Ms. Wilkes that the workers' compensation claim made by
Mr. Wooten should be denied. If that is true, he wanted to
pursue it.
He called her on August 18; it was a preliminary call and not
tape recorded. She said she had never talked to anyone from the
Governor's office about the Wooten file and she never saw photos
of Wooten riding on a snow machine while under workers'
compensation and was never told to deny the claim.
The snow machine photographs of Mr. Wooten riding on a snow
machine were amongst some of the items that were given
Commissioner Monegan by Todd Palin when they met at the
Governor's office on January 4. So he asked Ms. Wilkes about who
handled the claim in the attorney general's office. She gave him
the name of the assistant attorney general who handled the case;
he contacted him and was assured the claim was handled in the
normal course of business.
MR. BRANCHFLOWER asked him to give a statement and he said he
would, and he did. He asked who his supervising attorney was; he
told him; he contacted her and asked if the case was handled in
the normal course of business; she said yes. He asked for and
received a written statement. At that point everything looked
okay and above board so he concluded that the information he had
been given was not grounded in any fact.
10:26:59 AM
However on August 14, he received a call on the tip line he
established from the employee who handled the workers'
compensation claim at Harbor Adjusters. She gave him a statement
on August 30 - under oath. He read into the record what she said
(starting on page 6, line 12 of the transcript):
Well I remember at one - at some point in the
conversation she had mentioned. (The "she" she is
talking about is this Murlene Wilkes, this person I
want to have subpoenaed) Well I remember at one point,
at some point in the conversation, she had mentioned
or said something to the effect that either the
Governor or the Governor's office wanted this claim
denied and I remember my response being why I don't,
you know, care if it's the president who wants the
claim denied, I'm not going to deny it unless I have
the medical evidence to do that. I also remember
stating that, you know, I would not treat Wooten's
case any differently than, you know, I would any other
claimant, no matter who it was that was pressuring me.
I just wasn't going to do that. I had my license on
the line and plus I just won't act that way.
MR. BRANCHFLOWER asked her for an idea of the give and take of
the conversation. The witness responded, "Well, actually I also
remember telling her that she could handle the claim herself if
she wanted because I wouldn't be a part of that."
MR. BRANCHFLOWER asked, "What did she say?" The answer was:
I believe she said, you know, that was fine. And at
that point, you know, she was dealing with - oh, I
also recall that, you know, I think I inquired, you
know, as to where this was coming from and what was
going on. And I remember she said that [person's name]
had called her about the claim and he was the one who
had said somebody from the Governor's office, you
know, wanted it either looked at or denied or
something to that effect.
10:30:08 AM
MR. BRANCHFLOWER said after looking at this statement, he had
reason to believe that when he spoke to Ms. Wilkes earlier that
she wasn't truthful and so he resolved to try to get a statement
by her to clarify the claims made by the witness. He called Ms.
Wilkes recently and she wanted to know why that was necessary
since he had already talked to her. He tried to convince her
that it would be helpful to come down and he set the interview
at 3:00 p.m. yesterday. At 3:00 p.m. she cancelled the interview
on the advice of the attorney and wanted to know what would
happen next. He answered that he was appearing before the joint
meeting of the Senate and House Judiciary Committees and he
would put her name on the list. She said that was fine.
MR. BRANCHFLOWER said Ms. Wilkes is obviously a key player
because she handles all of the workers' compensation claims for
the State of Alaska and she might have a financial motive given
the fact that this is a contract that is awarded every five
years. She had the contract; it was recently renewed and if she
loses it due to the testimony he just described, it's her
opinion that it will be tough on her business.
10:31:18 AM
MR. BRANCHFLOWER went to his last request, which deals with
subscriber records for Frank Bailey that include, but are not
limited to, incoming and outgoing cell phone calls for 907-748-
5816 for the period of February 1, 2008 through March 31, 2008.
The records are in the possession of ACS wireless at 600
Telephone Avenue in Anchorage. He has talked to the attorney for
ACS who said the records are available in Anchorage.
The reason he wants the phone records is because in the
transcript of his call, Mr. Bailey gave Trooper Dial his cell
phone and urged him to call back. Mr. Branchflower thought it
might be relevant to find out who Mr. Bailey called just before
talking to Trooper Dial and right after he had that conversation
and perhaps those records might lead to some additional
evidence.
10:32:47 AM
MR. BRANCHFLOWER said he hopes someone asks him about his
relationship with Mr. Monegan.
CHAIR FRENCH asked what his relationship is with Mr. Monegan.
MR. BRANCHFLOWER assured him that it is professional. He spoke
with his wife, Linda, this morning to reassure himself of the
dates. Linda Branchflower was employed at the Anchorage Police
Department May 1986 through January 2002; she worked under Chief
Audey, O'Leary, Udman and Monegan, but only for the last two
years. She had very little contact with Monegan; she has not
socialized with him and had never been to dinner with him. They
were both on patrol. He recalled that Officer Monegan was
primarily a patrol division officer; she used to work the west
end and Mr. Monegan used to supervise the west end and from time
to time they had lunch as officers do during the noon hour. She
has never been to his house; there are no financial dealings.
Mr. Monegan had never been to the Branchflower home. Linda
started working in the Cold Case Unit at the Alaska State
Troopers (AST) after she retired from the Anchorage Police
Department in January 2002. She was at AST from August 2003 to
May 2005; that was a period of time that Commissioner Tandeske
was the head of the DPS department. Mr. Monegan didn't come on
until after Mr. Branchflower and his wife relocated to the State
of South Carolina. They left Alaska in July 2005; the Governor
was elected in the fall of 2006 and Monegan was appointed in
January 2007. They were long-gone by the time Monegan came on
the scene.
10:34:49 AM
As far as Mr. Branchflower's relationship with Mr. Monegan, he
said he didn't ever recall working with him on a case where he
was his case investigator. He didn't recall even calling him to
the stand although he may have because of the many people he had
examined there. They hadn't socialized or been to dinner; they
have no financial ties. He had not been to his house and didn't
know if he had children. Most of his contact with Walter Monegan
has been in an adversarial context during the time he was
working at the Office of Victim's Rights. It had to do with his
investigation of APD following the Patty Godfrey 911 incident.
The report that he issued at that time was pretty critical of
the Anchorage Police Department. "So those are my ties with Mr.
Monegan, just to set the record straight."
10:35:52 AM
SENATOR WIELECHOWSKI moved:
Pursuant to AK 24.25.010(b), I move that you be
authorized to issue subpoenas to the following
individuals and for the following documents: Frank
Bailey, Dianne Kiesel, Annette Kreitzer, Nicki Neal,
Brad Thompson, Michael Nizich, Don Bitney, Ivy Frye,
Kris Perry, Janice Mason, Todd Palin, Randy Ruaro,
Murlene Wilkes; cell phone records for Frank Bailey
for the period February 1, 2008 through March 31,
2008. This authorization is contingent upon the
concurrence of the Senate President.
SENATOR THERRIAULT objected.
SENATOR WIELECHOWSKI said they are undertaking a ministerial
function; the Legislative Council authorized this investigation
by a vote of 12 to 0; it was a bipartisan, unanimous vote of the
House and Senate members. It said that if subpoenas were
necessary they were to go to the Judiciary Committee, either
committee. The Governor welcomed this investigation repeatedly
starting on at least July 18 in a report on KTUU saying, "We
would never prohibit or be less than enthusiastic about any kind
of investigation."
SENATOR WIELECHOWSKI said you deal in the facts with an
investigation. Multiple times the Governor has said she welcomes
the investigation and would support that investigation. The
Legislature scheduled a hearing to issue subpoenas in August.
But On August [indisc], the Governor issued a press release
directing her staff to cooperate fully with Mr. Branchflower and
that hearing was cancelled. Mr. Branchflower has now testified
that he needs this testimony and the records to conduct a fuller
investigation.
In early September the administration ceased cooperation in this
matter and the assistant attorney general has directed that
witnesses not testify and not cooperate. Senator Wielechowski
repeated, "We're simply undertaking a ministerial function here
in issuing these subpoenas. Mr. Branchflower has testified that
he needs these to continue his investigation and we clearly have
the authority to do this, Mr. Chair."
10:36:54 AM
SENATOR THERRIAULT asked to have Tam Cook testify.
SENATOR WIELECHOWSKI objected. He said a motion has been made
and testimony has been closed. The chair stated that there was
no invited testimony.
SENATOR THERRIAULT said, "Mr. Chairman, you told me yesterday
[indisc.]. "She is here; we flew her here for this purpose. I
want to talk to her."
10:38:53 AM at ease 10:46:04 AM
SENATOR FRENCH called the meeting back to order and said
normally the rules would preclude having a witness talk to the
committee under debate on a motion. So Senator Wielechowski's
objection was well founded, but he was using his prerogative as
chair to relax the rules because it is important to get a record
made on the legal questions in front of them.
10:46:43 AM
SENATOR MCGUIRE said given the serious nature of what they are
dealing with procedurally, to have an accurate record, she would
feel more comfortable if Senator Wielechowski would withdraw his
motion and introduce it again.
SENATOR WIELECHOWSKI withdrew his objection.
SENATOR MCGUIRE said that still raises the concern that they are
under debate on a motion and yet they are taking witness
testimony.
10:47:27 AM
SENATOR WIELECHOWSKI withdrew his motion.
10:47:48 AM
TAMARA COOK, Director, Legislative Legal and Research Services
Division, Legislative Affairs Agency, put herself on the record.
SENATOR THERRIAULT said he thought the action that the
Legislative Council vote started, while innocent enough, seemed
to head them for a "branch versus branch smack down" that should
be avoided at all costs. If there is a suggestion of an ethical
lapse or wrong doing in the administration, the Legislature
created the Personnel Board to look in to those actions and make
a decision and has the power to oversee that report to decide if
it was co-opted somehow. Using the Personnel Board would allow
the investigation to go forward with established rules and
procedures. The legislative investigation is in a "murky area"
where the rules are not very set. He asked Ms. Cook to give her
opinion on the advisability of the Legislature taking this step.
He speculated that if subpoenas are issued and then ignored,
that would put the Legislature in the position of protecting its
power and that would lead to a head to head clash with the
administration over the rights of the Legislature to subpoena.
Either that or this committee will have to reconvene and
withdraw its subpoenas.
10:50:15 AM
MS. COOK responded that her understanding is that the question
is one of judgment under a hypothetical situation, which
involves a decision by this committee to issue a subpoena and
the person subpoenaed either refusing to attend or attending and
refusing to testify, or in fact if an effort to quash the
subpoena is undertaken in court. The question is what position
the Legislature would be placed in vis-à-vis the necessity to
preserve the legislative prerogative.
MS. COOK said her view is if a subpoena were issued by a
legislative entity, and a court action was brought attempting to
quash that subpoena, then the Legislature would be faced with
two reasonable options. One would be to defend against the
effort to suppress the subpoena, and the other one, based on its
legislative authority to investigate. Another one would be for
the legislative entity that issued the subpoena to consider
withdrawing it as perhaps a courtesy to the executive branch. As
to the viability of ignoring the matter and not either defending
the effort to suppress the subpoena or taking formal action to
withdraw it and simply defaulting, "that would be a disturbing
abrogation of legislative authority."
10:52:54 AM
SENATOR THERRIAULT said he is always protective of legislative
powers and if they could avoid a clash that could potentially
diminish legislative powers that should be their course of
action. He asked if Ms. Cook could give them an opinion about an
issue in Mr. Barnhill's latest later that talked about the issue
of quashing the subpoenas. He said Mason's Manual 797 2.,
states:
The legislature has no right to conduct an
investigation for the purpose of laying a foundation
for the institution of criminal proceedings, for the
aid and benefit of grand juries in planning
indictments, for the purpose of intentionally injuring
such persons or for any ulterior purposes.
If there is any legal question about the appropriateness of
people in the chain of command of the executive looking at any
personnel records and that is used as part of the motion to
quash the subpoenas, it would seem to him that 797 2. would kick
in. Perhaps it would be ruled that they have no right to issue
the subpoenas.
10:54:34 AM
MS. COOK responded, "I think that the description in Masons'
Manual is correct as I understand it as to the state of the
law." Alaska doesn't have a mature line of cases that describe
the interface between the executive power and the legislative
power in the investigatory arena, but from other jurisdictions,
it seems quite clear that the legislature does not have the
power to do a criminal investigation or to lay the foundation
for a criminal investigation. She continued:
That does not mean that the Legislature's power is not
fairly broad. The Legislature, it has been recognized
that simply pursuant to the lawmaking power, let alone
other powers that the Legislature may have
constitutionally been granted, that pursuant to the
lawmaking powers the Legislature has considerable
latitude to looking into specific facts. And that's
based on the proposition that a body that is charged
with setting public policy, true lawmaking, which
includes the possibility, by the way, of a proposed
constitutional amendment, since it is the Legislature
only that can propose a constitutional amendment to
the people of the state, that the Legislature is
authorized to gain such facts as it might need to make
those types of policy decisions.
10:56:08 AM
SENATOR FRENCH said she raised a good point in that essentially
what may come out of this is a report to Legislative Council
that some laws of the state might need changing. Two changes
that come to his mind are they might decide it is bad idea to
have commissioners be at-will employees; after going through the
confirmation process, they should maybe enjoy more employment
protection. This is relative to the constitutional amendment she
spoke of a few minutes ago. They may also see that it is time to
revamp the state's disciplinary procedures for state employees.
SENATOR FRENCH asked for any further legal questions.
10:57:12 AM
SENATOR THERRIAULT addressed Ms. Cook again and asked if they
are talking past each other on the right to review personnel
records, it seems that would be the basis for the move by the
attorney general's office to quash the subpoenas and taking a
little bit of time to get a meeting of the minds on that issue
would be advisable. Maybe people would come forward with their
statements willingly. What is the advisability of working
through that mechanism?
10:58:22 AM
MS. COOK answered the question asks her judgment as to a
potential course of action for the Legislature. For the most
part, she would defer to the Legislature except to make a
general observation that "my personal bias is to avoid
litigation." If there seems to be a way to avoid litigation,
"that's lovely."
10:59:21 AM
SENATOR THERRIAULT said he understands that sometimes through
this kind of scrutiny statutes are found that need to be changed
or tightened. That is what played out with the previous
investigation into the former attorney general. The Legislature
changed the ethics statutes and the administrative ethics
statutes after that. That came from an investigation by the
administration of one of its employees, the attorney general.
That same process, the Personnel Board, can be used to play
through this issue rather than pit one branch of government
against another.
11:00:28 AM
SENATOR FRENCH said that is an entirely debatable issue and he
views it differently.
11:00:38 AM
SENATOR WIELECHOWSKI read the subpoena motion again as follows:
Pursuant to AK 24.25.010(b), I move that you be
authorized to issue subpoenas to the following
individuals and for the following documents: Frank
Bailey, Dianne Kiesel, Annette Kreitzer, Nicki Neal,
Brad Thompson, Michael Nizich, John Bitney, Ivy Frye,
Kris Perry, Janice Mason, Todd Palin, Randy Ruaro,
Murlene Wilkes; and cell phone records for Frank
Bailey for the period February 1, 2008 through March
31, 2008. This authorization is contingent upon the
concurrence of the Senate President.
SENATOR THERRIAULT objected.
SENATOR WIELECHOWSKI said he would let his former statement
stand.
SENATOR THERRIAULT said this is in the middle of a political
campaign and the volume has been turned up because the Governor
was selected as the vice presidential candidate. Senators Elton,
Wielechowski and French have very publicly taken a position in
the Barrack Obama campaign, which is their right. Because of
that, they should try to do whatever they can to take politics
out of it and they have an avenue to do that in using the
Personnel Board. He said the whole legislative process started
because no complaint had been brought to the Board, but that has
changed. Some members of the Legislative Council have indicated
they would like to review their decision, and Senator French has
made statements to the press that he admitted were unwise, even
though they were taken out of context.
11:03:33 AM
Since that time, additional statements had been made and to the
general public that have given this investigation a political
flavor. If they can avoid that clash of two branches of
government, they should do that.
SENATOR THERRIAULT said he thinks the subpoenas would be ignored
and they would have to withdraw them or have a clash between the
two branches and ultimately the Legislature would be the loser.
11:06:03 AM
SENATOR FRENCH said he thinks it's likely that something can
still be worked out and he understands communication is
happening with Mr. Barnhill and the offer he made to Chair
Elton. He doesn't see a cataclysm; rather he sees two branches
of government trying to work it out using the tools they have in
a calm way to fundamentally get to the bottom of a situation.
11:06:34 AM
SENATOR THERRIAULT said if communication is going on why not
give them the time to work it out. Again he pointed out that the
October 10 date was arbitrary.
11:07:25 AM
SENATOR FRENCH said there is a good likelihood that this would
be worked out, but Mr. Branchflower's essential point is that
without the subpoenas there is a fair chance of another bump in
the road arising causing them to have to reconvene.
SENATOR MCGUIRE offered a conceptual amendment stating that the
subpoenas will be issued on the close of Election Day 2008.
11:08:11 AM
SENATOR WIELECHOWSKI objected.
SENATOR MCGUIRE said her reason for that amendment is because of
Senator Therriault's comments and the appearance of real
impropriety. The precedent for that, she said, is in the
Legislative Ethics Act that states if someone is the subject of
a legislative ethics complaint that they will allow that charge
to take place following the completion of an election period.
The reason for that is that someone could be targeted. The same
act also says if a committee has already undertaken an
investigation that the results will be kept confidential.
Similarly the executive branch has a provision that says if a
Personnel Board receives a complaint concerning the governor or
lieutenant governor who is a candidate during any campaign
period, that investigation will proceed after Election Day as
well. She said that having the Governor nominated for vice
president is unprecedented and this is offered in the same
spirit as other acts that the Legislature has acted on.
11:11:24 AM
SENATOR WIELECHOWSKI said with all due respect to his colleague,
he completely disagrees with her. Politics shouldn't be a part
of this, but they are a political body, so they are. The
Legislative Council wisely came to the conclusion that it didn't
want politics to be part of the investigation; that's why Mr.
Branchflower was chosen. He is a respected prosecutor with an
excellent reputation and 25 years of experience. They
specifically didn't choose a Democrat or a Republican; they
chose someone who is independent. He said delaying the
investigation until after the election politicizes it even more.
"The election should have absolutely nothing to do with our
decision." It should have nothing to do with when the report is
issued or when the subpoenas are issued.
11:12:50 AM
SENATOR WIELECHOWSKI said the Legislative Council decided back
in July to go forward on this investigation - before the
Governor was selected for vice president. They set the date
before having any idea that this situation would arise and to
change it now politicizes it even further.
11:13:44 AM
SENATOR THERRIAULT countered that the Legislative Council did
not set the date of October 31; the report was supposed to be
done in a timely fashion. It was after the Council's vote that
the date right before the election was set and moving it to
October 10 does not make the situation better. He said this
post-election provision was put into the ethics law so that an
investigation could not be used as a political tool. He said the
Council is a 14-member body and he doesn't think the one
legislator up on criminal charges would participate in taking
any action; so that means it's a 13-member body. Representative
Coghill has signatures from seven people, which would constitute
a majority of those 13 saying they want to reconvene to relook
at the action they set in motion.
11:15:28 AM
SENATOR FRENCH said there would be plenty of time for the
Legislative Council to review the report and there would be
action at that time to decide how to handle the confidential
portions along with the other portions.
11:15:44 AM
SENATOR HUGGINS said for the record he doesn't support Senator
Obama. On the other hand, some of the factors in this are being
distorted. He is concerned that the amendment does politicize
the issue. He stated:
Now we're in a new era of let's get the facts on the
table. Let's make it clear and transparent. And I see
all this duck foot action under the water of well,
let's delay, let's water down. I'm simply here today
with a short break in my moose hunting to say let's
get to the facts. Let's have the truth. Let's be clear
and transparent. And why we want to start pushing back
and pushing back for this event and that event - in
this case the election timeframe - I think is
politicization. I'm disappointed in some of things I
have heard and some of the comments today because I as
a person am a very poor politician, but I recognize
the truth. And I have a picture on my wall that says,
'Don't lie, cheat or steal or tolerate those that do.'
I've lived that a long time and I'm a bit disappointed
in some of the action that I've seen here today,
because I think it is a politicization of what we are
doing. I say let's just get the facts on the table,
the sooner the better. Let Mr. Branchflower go back to
South Carolina.
SENATOR HUGGINS said he hadn't met Mr. Branchflower until a
couple of hours ago, but he remembers when he and Representative
Samuels chaired a committee to hire his replacement. About that
he said:
Person after person after person trooped forward and
talked about what a great American he was, what a
great Alaskan he was, and how he matured a process to
protect victims. They heard how he had an adversarial
position with Mr. Monegan at one point. And now people
are trying to take different action to, at a minimum,
muddy the water. What I vote on here today will be
about the truth, the facts, the sooner, the better, no
ill will, because my gut feeling, my instinct, I
sometimes say, my bunion will say, that I think that
Mr. Branchflower has characterized that to some degree
this is not about a legal process that will send
people to prison or get that sort of headline on them;
it's about us getting to a process for a modification
of a system that might need to be modified.
SENATOR HUGGINS said he has also heard remarks about whether the
Troopers are good or bad and he happens to support every one of
them. When he looked Mr. Monegan's mother in the eye, he knew
how this defamation has hurt her as well as that person who is a
leader in our state and to most law enforcement agencies. It
just pales and disappoints him. To that extent, he repeated, he
wants to hear the truth, the sooner the better, no matter what
the consequences.
11:19:52 AM
SENATOR MCGUIRE said that she didn't offer the amendment in the
spirit he alluded to, but rather she wanted to depoliticize the
process by virtue of unforeseen events. She also has tremendous
respect for Steven Branchflower and doesn't question his ethics
in any way.
11:21:26 AM
She said the nice thing about this amendment is that it doesn't
prevent the truth from coming out. She supports the subpoenas
and giving the investigator the tools he needs. She does not
support having the appearance of being politicized. She said she
loves Betty Monegan and the Troopers.
11:22:48 AM
A roll call vote was taken. The proposed amendment failed 2:3
with Senators Therriault and McGuire voting yea and Senators
Wielechowski, Huggins and French voting nay.
CHAIR FRENCH asked if there was further debate on the motion.
11:23:37 AM
SENATOR THERRIAULT reiterated his stance that this clash could
be avoided. The deadline was set arbitrarily and not at the
direction of the Legislative Council. If Mr. Branchflower thinks
there is not enough time to work out the differences with the
Department of Law because of that arbitrary deadline it's ill-
advised. He thinks they were headed down a path to certain
litigation between the branches of government.
11:24:33 AM
SENATOR WIELECHOWSKI wrapped up that no one wanted to get into
this position; he certainly didn't. This hearing was scheduled a
month ago and they avoid it because at that time the Governor
said she would cooperate fully. But now they are in this
situation and they have an obligation to find out the facts. He
repeated that 12 members of the Legislative Council unanimously
voted to go forward on this.
He saw Walt Monegan on TV yesterday; he didn't want to talk to
reporters. Monegan said, "You know what? I'm exhausted. I'm just
ready for this to be over." Senator Wielechowski said they all
are. It's unfortunate that a man who has given his career to the
Department of Public Safety, the Anchorage Police Department and
the Troopers has been dragged through the mud; it's unfortunate
that the chair has been dragged through the mud. "It's time that
we get to the bottom of this; find out the facts. Let's get the
investigation done, get the report and let's move on. Thank
you."
11:25:49 AM
SENATOR MCGUIRE said she would be a "no" vote, but she would
have been a "yes" vote to preserve and protect the power of this
legislative branch to issue subpoenas. She believes it is part
of that balancing of the three branches of government; she
believes in the truth and the merits of many of the arguments
that have been brought forward with respect to the
investigation.
11:26:31 AM
SENATOR HUGGINS added that he would support this motion and he
was heartened by seeing Mr. Branchflower today fulfill the image
he had conjured up in his mind about him based on what people
have said previously when they were looking for a replacement.
He meant that as a complimentary backdrop to what he was going
to say. If they had gone ahead and issued the subpoena powers in
the first meeting it would have been done in an air of non
conflict and it wouldn't have been an issue. However, in this
case he was heartened by Mr. Branchflower saying he would be
able to go forward now and deal with the administration and get
cooperation from the attorneys involved so the witnesses can
come forward and they can get the information they want.
By supporting the subpoena powers today, they won't have to have
another meeting on it. Alaskans will hear the answer and he
thinks it is probably much more benign than has been hyped. He
wants the facts on the table and to be clear and transparent.
"If subpoena powers are an insurance policy that helps Mr.
Branchflower get there, I'm fully supportive of that."
11:28:42 AM
A roll call vote was taken. The motion to issue subpoenas
carried 3:2 with Senators Wielechowski, Huggins and French
voting yea and Senators McGuire and Therriault voting nay.
11:29:15 AM
CHAIR FRENCH said that to a large degree concludes the work of
the Senate Judiciary Committee and he turned the meeting over to
the House Judiciary Committee.
11:30:55 AM
CHAIR JAY RAMRAS said the House Judiciary Committee would also
have debate and entertain a motion, although it would be
advisory in capacity. In the interests of full disclosure, he
said he has had a McCain sign in his front yard since August 21.
To that end, the only time he met Mr. Branchflower prior to
today was on September 3. That meeting was attended by himself,
Senator French, Vice-chair Dahlstrom and Mr. Branchflower.
When they got to the issue of subpoenas, Mr. Branchflower
recommended eight names plus the Governor's name. Representative
Ramras said he requested that the Governor be excluded from the
subpoena process; he thought it was inappropriate given the
comments about politicization of this issue. However, they
encouraged Mr. Branchflower to continue to pursue an interview
with her.
They agreed on seven of the eight names and the eighth name was
Mike Tibbles. Again at his request, Mr. Tibbles was excluded
from the list for subpoenas. He believes as Senator Therriault
stated that the subpoenas would be ignored.
The other seven people are all still under state service and
enjoying compensation from the State of Alaska, including the
first gentleman who benefits from monetary issues that surround
his unique dual position of being a private citizen as well as
being the first gentleman of the State of Alaska. In that
conversation they did not exclude Mr. Tibbles from being invited
to interview with Mr. Branchflower either. Chair Ramras said
because they didn't anticipate the others would come forward
whether they were subpoenaed or not and because that morning Mr.
Branchflower informed them that Frank Bailey, who the Governor
said was put on paid leave so as to be available to the
Legislature for the purposes of cooperation, was really the
rogue catalyst that triggered a great deal of this, he asked
that Mr. Tibbles be excluded. Further, Mr. Tibbles had completed
his state service and was no longer compensated by the State of
Alaska and hopefully would be able to continue on with his name
and reputation in tact.
CHAIR RAMRAS said he conveyed his position forcefully enough to
the others in the meeting that there was consent to exclude him
ultimately from the list of those for whom subpoenas would be
issued. He then welcomed a motion from House members in an
advisory capacity.
11:34:02 AM
REPRESENTATIVE DAHLSTROM moved:
Pursuant to AK 24.25.010(b), I move that you be
authorized to issue subpoenas to the following
individuals and for the following documents: Frank
Bailey, Dianne Kiesel, Annette Kreitzer, Nicki Neal,
Brad Thompson, Michael Nizich, John Bitney, Ivy Frye,
Kris Perry, Janice Mason, Todd Palin, Randy Ruaro,
Murlene Wilkes; and the cell phone records for Frank
Bailey for the period February 1, 2008 through March
31, 2008. This authorization is contingent upon the
concurrence of the Senate President.
11:34:48 AM
REPRESENTATIVE GRUENBERG objected saying he was very troubled
about the absence of Mr. Tibbles' name on the list in view of
Mr. Branchflower's testimony. He was aware of the conversation
that had taken place, but he is also aware that the eyes of the
state and the nation are upon the integrity of this process,
"And as my friend from the Mat-Su said a minute ago, this is
something that rises above any personal or political
consideration and in my mind the important thing is that the
public know the truth."
REPRESENTATIVE GRUENBERG said he wanted to offer an amendment to
add Mr. Tibbles' name to the list.
CHAIR RAMRAS reminded him that the committee's authorization of
the issuances is in an advisory capacity and he asked if he
wanted to offer the amendment.
REPRESENTATIVE GRUENBERG asked if he preferred that they take up
this issue separately.
11:36:35 AM
CHAIR RAMRAS responded:
The Senate will be the body that moves the subpoenas
forward to its presiding officer. The House will
simply vote today in the appearance of a joint
Judiciary Committee in an advisory capacity. Therefore
our vote on the motion for subpoenas is non-binding,
but we can, for the purposes of the record, have a
dynamic discussion on the subject matter. So to that
end, to follow our rules, if you're interested in
offering an amendment to the House motion you are
welcome to, or at this point you can just leave the
discussion open to the motion itself and at the
appropriate time if you care to offer an amendment,
you may and I would be happy as the chair to follow
through and to vote on it.
REPRESENTATIVE GRUENBERG said he would do the latter.
11:37:32 AM
REPRESENTATIVE SAMUELS said he was with Senator Huggins in that
he would not be supporting Barrack Obama to be the president of
the United States and he also agrees with him that at the end of
the day this isn't going to be an issue of national importance.
That said, he stated that changing a process they already
started automatically makes a political statement. He said the
only person amongst all of them that had anything to do with
this is not a politician, and that is Mr. Branchflower. He said
he would be voting yes on the motion and he wishes Mr.
Branchflower well on his investigation.
11:39:32 AM
REPRESENTATIVE DAHLSTROM specified that her motion was
contingent on approval of the Speaker of the House because they
don't have a Senate President in the House.
11:40:02 AM
CHAIR RAMRAS said that was noted for the record and said she
didn't need to restate the entire motion. Without objection, the
motion carried.
CHAIR FRENCH announced an at-ease from 11:41 a.m. to 11:42:12
AM. He called the meeting back to order to adjourn at 11:42:14
AM.
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