The Palin Report Bait-and-Switch

All the headlines are blaring that Sarah Palin abused her power as governor, according the report to the Legislative Council released yesterday, but most of the articles miss several important points.

First, the focus of the investigation was supposed to be the propriety of firing of Walt Monegan.  The report concludes that Palin acted properly with regard to that action.

Second, the finding that she abused her power rests almost entirely on Todd Palin’s actions with regard to the perceived failure to discipline Trooper Michael Wooten.  It has nothing to do with the firing of Walt Monegan.

Third, the report is just that, a report.  It is not a finding or any other action by the Legislative Council.

Fourth, and perhaps most important, the report only makes two recommendations to the Legislative Council, and neither have to do with Sarah Palin.

The report — which was prepared by an attorney hired by Obama-supporter Hollis French, Stephen Branchflower — begins by reciting the scope of the investigation.  Branchflower was hired to:

investigate the circumstances and events surrounding the termination of former Public Safety Commissioner Walt Monegan and potential abuses of power and/or improper actions by members of the executive branch.

(Branchflower Report at p. 2.)  The language of this statement is broad enough to encompass the ultimate finding that there was an abuse of power with regard to pressure for disciplinary action on Trooper Wooten, but that does not appear to have been the (original) intent of the investigation.  The plain language here, as well as the apparent understanding of those involved, was that the investigation was to cover the propriety of firing Walt Monegan.  After all, it was Sarah Palin herself who initiated the process.

Branchflower’s finding that has attracted all of the attention is that:

Governor Sarah Palin abused her power by violating Alaska Statute 39.52.110(a) of the Alaska Executive Branch Ethics Act.  Alaska Statute 39.542.110(a) provides

“The legislature reaffirms that each public officer hold office as a public trust, and any effort to benefit a personal or financial interest through official action is a violation of that trust.”

(Branchflower Report at p. 8.)  Branchflower’s justification for his finding rests almost entirely on the actions of Todd Palin, not Sarah Palin:

The evidence supports the conclusion that Governor Palin, at the least, engaged in ‘official action’ by her inaction if not her active participation or assistance to her husband in attempting to get Trooper Wooten fired. . . .  She knowingly . . . permitted Todd Palin to use the Governor’s office and the resources of the Governor’s office, including access to state employees, to continue to contact subordinate state employees in an effort to find some way to get Trooper Wooten fired.

(Branchflower Report at pp. 65-66 (emphasis added).)  Beldar makes the excellent point that none of the evidence requires the conclusion that the Palins wanted Wooten fired — as opposed to otherwise disciplined — and that, even if they did, they may have been perfectly justified in doing so for reasons unrelated to personal gain.  Beldar also notes the response by Palin’s attorney:

Palin’s lawyer has issued a five-page response to the Branchflower report [PDF link] which notes, among other things, that “[e]very prior reported Ethics Act violation involved financial motives and financial ‘potential gain, or the avoidance of a potential loss.’ … Here, there is no accusation, no finding and no facts that money or financial gain to the governor was involved in the decision to replace Monegan.”

Another point that Beldar makes, as well as Ed Morrissey at Hot Air, is that newspapers and others who are claiming this is a finding by the legislature are simply wrong.  This is a report by an attorney hired by the Legislative Council, and has no weight on its own.  This also is related to my final point, which it appears that others have missed:  namely, the report’s recommendations appear to vindicate Sarah Palin.

Branchflower’s first recommendation is that the legislature consider amending the statute governing requests for employee information to require a relationship between the request for the records and the purpose for obtaining the records.  (Branchflower Report at p. 78.)  The second recommendation — and there are only two — is that the legislature consider amending the statute governing personnel records to “permit those who file complaints against peace officers to receive some feedback about the status and outcome of their complaint.”  (Branchflower Report at p. 79.)

To put this in context, the Alaska Executive Branch Ethics Act upon which Branchflower relies to make his findings allows the following (in addition to criminal sanctions):

(a) If the personnel board determines that a public employee has violated this chapter, it

(1) shall order the employee to stop engaging in any official action related to the violation;

(2) may order divestiture, establishment of a blind trust, restitution, or forfeiture; and

(3) may recommend that the employee’s agency take disciplinary action, including dismissal.

Alaska Stat. § 39.52.410 (”Violations; penalties for misconduct”).  Also:

(a) In addition to any other cause an agency may have to discipline a public employee, an agency may reprimand, demote, suspend, discharge, or otherwise subject an employee to agency disciplinary action commensurate with the violations of this chapter.

Alaska Stat. § 39.52.420 (”Disciplinary action for violation”).

Notice first that these statutes refer to actions by the personnel board or individual agencies.  This is because the legislature has no direct control over anyone in the executive branch.  However, the legislature could, short of impeachment, pass a resolution condeming Palin’s actions or otherwise censuring her.  These sorts of resolutions are not binding in any way, but are passed state legislatures every day — everything from condemning genocide in Darfur to commending old Frank down at the post office not having had a sick day since 1971.

Stop to think about this for a moment.  Branchflower relies on the Alaska Executive Branch Ethics Act to find that Sarah Palin has abused her power.  The Act calls for numerous sanctions for a violation of the Act.  Even though the legislature does not have the power to directly implement any of the Act’s sanctions, Branchflower’s recommendations do not call for a resolution by the legislature either (1) condemning Palin’s acts or (2) asking for further action from the executive branch.  Instead, Branchflower makes the point that Palin and her family were frustrated because they did not see any action taken, and so reccomends that the law be changed to allow those who file complaints to find out about the status of those complaints.

I don’t know about anyone else, but that sounds an awful lot like Branchflower is vindicating Palin’s actions, or at the least excusing them, by finding that the root cause of the problem is a faulty statute.

UPDATE:

I forgot to tie the stated scope of the investigation back in to Branchflower’s  recommendations.  He was required to investigate, then “prepare a final report, including any recommendations for action by the Legislature.”  (Branchflower Report at p.2.)