Legislature(1997 - 1998)
04/22/1998 01:55 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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.