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Misrepresenting Ethics Law in a Highly Visible Case
Thursday, June 4th, 2009
Robert Wechsler
It seriously undermines the public's understanding of government ethics
when highly visible decisions misrepresent basic government ethics
concepts. This occurred yesterday, when the Alaska State Personnel
Board found that Governor Sarah Palin did not violate the Alaska
Executive Branch Ethics Act when she wore a jacket with the logo of
her husband's sponsor as the starter for a highly visible event, a
position she held only because she was Governor (e.g., a picture of her
wearing the jacket with logo appeared in Sports Illustrated).
Here's the relevant provision:
And here's what, according to a press release from the Governor's office, the report -- which concluded that "there is no evidence establishing probable cause to believe that Governor Palin used her position for personal gain" -- said to support this conclusion:
The relevant ethics act provision does not require proof of a quid pro quo. Proving that there was a direct exchange of something in return for an act is not only very difficult, it is also unnecessary under the ethics act.
In fact, the provision only requires that an official "attempt to use" her position for personal gain. No gain has to actually occur. But in this case there was clearly gain to the family in the company's sponsorship of the Governor's husband. Whether or not the Governor was required as part of a deal with the company to wear the jacket at the particular occasion is irrelevant.
I have no doubt that I will be falsely attacked in the blogosphere as a Democrat who never criticizes Democrats, as I was when I wrote about this complaint when it was filed (nor will my post on abusing the ethics process, with respect to Gov. Palin, be mentioned).
And that's why I'm writing this -- because such a highly visible, contentious complaint must be dealt with responsibly. It's not the outcome that matters, it's the honest presentation and interpretation of the law. This was not done here. I don't know if the people who misrepresented the law and the appropriate burden of proof were Democrats, Republicans, or independents. And I don't care.
Robert Wechsler
Director of Research-Retired, City Ethics
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Here's the relevant provision:
Sec. 39.52.120. Misuse of official
position.
(a) A public officer may not use, or attempt to use, an official position for personal gain, and may not intentionally secure or grant unwarranted benefits or treatment for any person.
(a) A public officer may not use, or attempt to use, an official position for personal gain, and may not intentionally secure or grant unwarranted benefits or treatment for any person.
And here's what, according to a press release from the Governor's office, the report -- which concluded that "there is no evidence establishing probable cause to believe that Governor Palin used her position for personal gain" -- said to support this conclusion:
My investigation has uncovered no
evidence that the governor or her
husband received anything of value in exchange for the governor wearing
the Team Arctic jacket when she acted as the official starter of the
2009 Iron Dog race.
The relevant ethics act provision does not require proof of a quid pro quo. Proving that there was a direct exchange of something in return for an act is not only very difficult, it is also unnecessary under the ethics act.
In fact, the provision only requires that an official "attempt to use" her position for personal gain. No gain has to actually occur. But in this case there was clearly gain to the family in the company's sponsorship of the Governor's husband. Whether or not the Governor was required as part of a deal with the company to wear the jacket at the particular occasion is irrelevant.
I have no doubt that I will be falsely attacked in the blogosphere as a Democrat who never criticizes Democrats, as I was when I wrote about this complaint when it was filed (nor will my post on abusing the ethics process, with respect to Gov. Palin, be mentioned).
And that's why I'm writing this -- because such a highly visible, contentious complaint must be dealt with responsibly. It's not the outcome that matters, it's the honest presentation and interpretation of the law. This was not done here. I don't know if the people who misrepresented the law and the appropriate burden of proof were Democrats, Republicans, or independents. And I don't care.
Robert Wechsler
Director of Research-Retired, City Ethics
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Comments
Linda Kellen Biegel (not verified) says:
Fri, 2009-06-05 08:06
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I know all about that "attacking" issue. Folks like me who have filed the ethics complaints against the Governor are from all political leanings...that's not the issue.
I think Alaska can now officially take it's rightful place as the most corrupt state in the U.S.
crystalwolf aka... (not verified) says:
Fri, 2009-06-05 13:22
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Robert, since the personnel board refused to hear Linda's complaint..what would you suggest, she take the complaint now?
Curious Visitor (not verified) says:
Sat, 2009-06-06 02:58
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Leaving aside the other issues, what about the "may not intentionally secure or grant unwarranted benefits" provision of the law?
A prominent government official attends a high profile sports event, not as a private observer, but in order to ceremonially participate- in this case, to serve as the race starter. From past experience, the official is aware of the guaranteed media coverage at this event, and chooses to perform this very visible duty in a personalized set of sponsor's gear. As a reasonable person would expect, the event photos receive wide distribution.
Isn’t that clearly an “unwarranted benefit” to one sponsoring entity over all the others? According to the law, that would constitute a violation of ethics on its own and would not require the exchange of compensation or require establishing that the official received a personal benefit. That would also be a valid concern, am I correct?
Robert Wechsler says:
Mon, 2009-06-08 13:53
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It might also be seen as an unwarranted benefit, but what is really important here is not how many provisions the governor violated, but the fact that the report on this complaint misrepresented the provision it did deal with.
As far as I'm concerned, what the governor did was a very minor violation. What is major is misrepresenting the law.
Robert Wechsler
Director of Research-Retired, City Ethics
Valley Independent (not verified) says:
Sat, 2009-06-06 12:30
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1) The woman's Arctic Cat ensemble the governor was wearing was worth approximately $500 and was apparently a gift from Arctic Cat passed through her husband's partner in just her size. (I'm not sure who did the monogramming, or who paid for Piper's outfit, but in my mind, that, too, would be relevant).
The ethics board doesn't address the value of the gift itself, nor the timing of the gift. (Was it right before the event? Wouldn't that strengthen the impression that it was given by Arctic Cat with the intention that she wear it in her official capacity to the start of the race to garner media attention for the company that supports her family?)
Do you think the Personnel Board should have addressed the gift's value and timing in their report?
2) If an ethics panel determines behavior is questionable or unethical, though not technically illegal, do you think they should say so in their report to the public? To my mind, not doing so condones the poor behavior, when it should be actively discouraged even if it isn't prosecutable.
Robert Wechsler says:
Mon, 2009-06-08 13:58
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The timing of the gift doesn't prove anything; it's just circumstantial evidence. But I don't think the timing is relevant. Nor do I think the amount of the gift is relevant.
An ethics board in its enforcement role is supposed to interpret ethics laws. An ethics officer or an ethics board asked for an advisory opinion should, I think let officials know when they have done something questionable, even when not a violation of the ethics law. But an ethics board faced with a complaint does not have this obligation.
Robert Wechsler
Director of Research-Retired, City Ethics