News-Miner opinion: Alaskans rightly expect that the Department of Law’s professional staff should work exclusively on behalf of Alaskans and have the public interest at the forefront.
Regulations proposed by the Department of Law, however, would change that in a significant way by allowing the department’s attorneys to represent the governor and the lieutenant governor if either is the subject of an ethics complaint and the attorney general determines that doing so would be in the public’s interest.
Similarly, the department’s attorneys would be allowed to represent the attorney general if he or she is the subject of an ethics complaint and the governor determines that it would be in the public interest to do so.
Under current law, those three officials and all others in the executive branch are left to hire a private attorney.
This proposed change in regulation would apply only to the governor, lieutenant governor and attorney general. No one else in the executive branch would benefit from having a publicly funded legal defense.
The changes, if approved, will heighten public skepticism of government.
And speaking of approval, who is the person who decides whether to give final approval or rejection of a proposed regulation? The lieutenant governor, who would be a potential beneficiary of the change.
To a limited extent, some sympathy can be expressed to the aim of the proposals. Elected officials can become the subject of politically motivated ethics complaints, some of them no doubt baseless.
That argument doesn’t have much real merit. That’s because Alaska has a process through which baseless complaints against a governor or lieutenant governor can be tossed aside. Here’s how it works: Unlike complaints against other officials, a complaint against a governor or lieutenant governor is referred to the state Personnel Board, which is directed by state law to “retain independent counsel who shall act in the place of the attorney general.” The independent counsel has the authority to dismiss a complaint. That’s an important separation since the attorney general’s boss is the governor.
The proposed regulation changes have other problems, as outlined in a lengthy analysis by the Legislature’s own legal division.
Among the many objections cited is the Alaska Constitution’s prohibition on the expense of public money on anything “except for a public purpose.” Providing a state-funded legal defense for a governor, lieutenant governor or attorney general would be the granting of a private benefit.
And what would happen if, under the proposed regulation, the state paid for the legal defense of a governor but the governor were found guilty of an ethics violation? The regulation has no provision for reimbursement of that state-paid defense.
There’s also the matter of the Legislature’s own general lawmaking authority. In our system of government, the legislative branch approves a bill, which becomes law upon the signature of the executive. The executive branch then writes the regulations to implement the law. In doing so, however, it must adhere to the intent of the law and not assume an expanded scope.
The opinion from the Legislature’s attorney states that the Alaska Executive Branch Ethics Act “does not contain a single provision that explicitly or implicitly authorizes the department to adopt the regulations it has proposed. The absence of a provision that prohibits adoption of a regulation does not imply a delegation of authority to adopt one.”
The list from the Legislature’s attorney goes on and includes concern about violation of the Constitution’s equal protection clause and potential conflicts the proposed regulations would have with other state laws.
The bottom line here is this: It would be unfair to bestow the special privilege of a state-funded defense of an ethics complaint to the governor, lieutenant governor and attorney general.
As Executive Branch Ethics Act states that “compliance with a code of ethics is an individual responsibility; thus all who serve the state have a solemn responsibility to avoid improper conduct and prevent improper behavior by colleagues and subordinates.”
The public comment period on the changes closed on Monday. The proposed changes are now in the hands of Lt. Gov. Kevin Meyer, who should reject them even if he believes they could withstand legal challenge. They just don’t look good.