In the month since Attorney General Kevin Clarkson abruptly resigned after the Anchorage Daily News we still have no answers from Gov. Mike Dunleavy about his knowledge of the incident, the timing of his knowledge or why it appeared that he was ready to have Clarkson return to work after an undisclosed month of leave.
The governor has hidden behind state law, claiming it prevents him from talking about anything related to Clarkson’s harassment of a junior state employee over the course of a month earlier this year. He’s dodged reporters and demanded to pre-screen questions ahead of time.
It’s an excuse that has been met with doubt from Alaska legal experts, who say the law he cites doesn’t apply to the attorney general or other chief leadership positions.
The latest addition to that chorus is the Legislature’s nonpartisan legal team, who in a memo released today agreed that there’s no such law preventing the governor from discussing the case. The State Personnel Act, the legal memo explains, doesn’t apply to department heads.
The memo is from Legislative Legal Services Deputy Director Emily Nauman and also examines the possibility of the governor hiding behind the deliberative process privilege, a common law that allows the governor to keep some internal communications confidential from public records requests. Existing Alaska case law, though, gives the public the ability to pierce that protection when the information is factual, not easily available elsewhere and would not have a “chilling effect” on internal deliberations.
“Generally, factual information is not protected by the deliberative process privilege. Therefore, I do not believe the information is protected under the deliberative process privilege. Even if the facts could not be separated from the decision-making process, the information no longer appears to be ‘predecisional.’ In this instance, the attorney general has resigned, therefore, any decision related to his employment has already been made,” she wrote.
Nauman also said there’s nothing about the deliberative process privilege that prevents the governor from disclosing any information that may be protected.
She noted, however, that beyond a records request there’s not a requirement for the governor to voluntarily disclose any information about what he knew about Clarkson’s harassment or when he knew it.
“I cannot think of a way, short of legislative subpoena, to compel a member of the governor’s staff to provide that information,” she wrote.
She went on to argue that the Legislature likely has a “strong argument” that it should have access to information related to Clarkson as part of the Legislature’s oversight powers, a position that’s also supported by previous case history. The Legislature should have also been notified that the attorney general was placed on unpaid leave, she argued.
“Regardless of the law or other legal grounds cited by the Governor, there is a strong argument that the Legislature should have access to information related to the timing and reason for the Attorney General’s extended unpaid leave because the attorney general is the head of a principle department, subject to confirmation by the Legislature,” she wrote. “It could be argued that because the attorney general is subject to confirmation, the legislature or a legislative committee has the constitutional authority to investigate matters having to do with the position and the legislature has a legitimate interest in ensuring that the head of a department of state government is managing the department within the bounds of state law, including sexual harassment laws.”
She said a court would likely agree with a legislative subpoena on the issue and “find that the governor must provide information related to the leave and resignation of Attorney General Clarkson to the legislature.
The memo was released by Anchorage Democratic Rep. Zack Fields, a fierce critic of Dunleavy, today. Fields is the chair of the House State Affairs Committee, which the announcement says “has jurisdiction over public records and personnel issues.”
“The governor needs to stop hiding and come clean with Alaskans,” Fields said in a prepared statement accompanying the release of the memo. “When did he learn of the sexual harassment, and why didn’t he immediately hold his attorney general accountable?”
The announcement doesn’t indicate whether Fields plans to push for a legislative subpoena.