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Sunday, October 12, 2008

A reply to Prof. Post: It's nonsense to argue both that it was okay for Gov. Palin to actually fire Monegan, but that it wasn't okay for her to merely threaten to fire Monegan

Even very smart people sometimes miss the obvious, especially when there are politics involved. I'm sure he's a very smart person, but I think Temple law professor David Post wasn't thinking clearly when it comes to either the Branchflower Report or my first post about it at HughHewitt.com, and that's the point of my latest guest-post there.


[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar):

At page 69 of his bloated report, investigator Steve Branchflower squarely admitted — as he had to — that there is no doubt whatsoever that Gov. Palin acted within her legal rights to reassign Walt Monegan (rather than accept which, he resigned), even if that's characterized as her having fired him:

The governor may discharge department heads without cause. The constitution provides that department heads "serve at the pleasure of the governor." Alaska Constitution Article III, section 25; see also AS 39.05.030. Those who serve at the pleasure of their employers are subject to discharge at will. See Witt v. State Department of Corrections, 75 P.3d 1030, 1033 (Alaska 2003).

In light of this constitutional and statutory authority, it is clear that Governor Palin could fire Commissioner Walt Monegan at will, for almost any reason, or no reason at all.

Writing at the Volokh Conpsiracy, however, Professor David Post of Temple University’s Beasley School of Law summarily dismisses one of the main points made in my Friday evening post here, while ignoring all of my other points. On the one point of mine that Prof. Post chose to address — to the effect that the two main conclusions in the Branchflower Report are internally inconsistent — Prof. Post writes:

Bill Dyer’s report at Townhall.org (to which Jonathan Adler pointed in his original posting here) claims that the Report is fatally flawed with a central inconsistency: ...

Here's a note to Mr. Branchflower, who clearly is verbose, but obviously none too keen a scholar of logic: Gov. Palin's so-called "firing" of Monegan (it wasn't a firing, it was a re-assignment to other government duties that he resigned rather than accept) can't simultaneously be a violation of the Ethics Act and "a proper and lawful exercise of her constitutional and statutory authority." This, gentle readers, is a 263-page piece of political circus that actually explicitly refutes itself on its single most key page!

That doesn’t really make any sense. It is perfectly logical to conclude, as the Report does, that (a) the re-assignment of Monegan was lawful and consistent with the Ethics Act, and (b) other conduct of Gov. Palin was not lawful and consistent with the Ethics Act. This is hardly an “explicit refutation” or some kind of inconsistency.

Reduced to its nub (and setting aside the overstatement of the case against Gov. Palin that's inherent in this formulation), Prof. Post — like Branchflower — is thus in the position of arguing both that (a) it was perfectly okay for Gov. Palin to actually fire Monegan, but (b) it was not okay for Gov. Palin to threaten to fire Monegan.

Prof. Post gives no explanation for why that not a contradiction. And one need not be a law professor, or a lawyer, or even the sharpest tool in the shed, to see the absence of logic in that position. But let me play devil's advocate against myself. Let's focus for a moment solely on the only "other conduct" besides the actual reassignment of Monegan in which Gov. Palin, her husband, and her aides were alleged to have been involved.

All of it was, quite literally, just talk — oral and written talk, by Gov. Palin (in person or through emails), by First Dude Todd Palin, or by Gov. Palin's staff — which Gov. Palin's opponents (including Branchflower and, now apparently, Prof. Post) contend was intended to persuade or compel Monegan into taking some action with respect to Trooper Wooten.

Mere talk cannot be a violation of the Ethics Act, because by its clear and unambiguous terms, it may only be violated by an "effort to benefit a personal or financial interest through official action."

Ethics provisions like these aren't intended to be legislative enactments of mind or speech control. They're intended to control the actual — or at least the threatened — use of official power. If there's no use (or even threatened use) of official power, no taking (or even threatened taking) of official action, then there can't be an abuse of power.

And that's true even if we engage in the highly questionable supposition that merely gratifying one's purported desire for vengeance is a "personal interest" within the intention of the Alaska Legislature when it passed this statute. (Reading the statute that broadly would literally make it unethical for the governor to ever take any official action that left her pleased on her own behalf as a citizen; she'd be confined to only acting in ways that left her feeling at best neutral or unhappy in her private capacity. And that's just as silly, too.)

No, gentle readers, the only actual or threatened "official action" ever involved in this whole mess was the firing (or actually as it turned out, reassignment) of Monegan, allegedly because he wouldn't fire (or do something further involving) Wooten. And that action cannot simultaneously be both a "violation of the Ethics Act" and "a proper and lawful exercise of her constitutional and statutory authority."

This isn't hard. This isn't subtle. This isn't nuanced. This isn't something on which you have to let the "experts" — whether that's Branchflower, or Prof. Post, or me (since we all have exactly the same kind of law degrees) — do your thinking for you.

And I respectfully submit to you, for your own consideration, the proposition that this question is something on which you can reach the opposite conclusion only if, like Prof. Post, you just make an assertion that old Beldar here "doesn't really make any sense" — and then you quickly change the subject without bothering to deal with the specifics of what the "official action" (besides reassigning Monegan) could have been.


UPDATE (Sun Oct 12 @ 9:10 p.m. CST): A commenter at my own blog asks for an example of a "personal interest" of the sort that I think might be implicated by the Ethics Act in Alaska. Section 39.52.960(18) of the Alaska Statutes (most current version, as quoted at page 50 of the Branchflower Report) defines that term as meaning "an interest held or involvement by a public officer, or the officer's immediate family member or parent, including membership, in any organization, whether fraternal, nonprofit, for profit, charitable, or political, from which, or as a result of which, a person or organization receives a benefit." Notwithstanding that lengthy definition, I think that the terms "personal interest" and "benefit" have to be construed very narrowly indeed to be workable, but here's an obvious example of a discrete, objective, non-financial but cognizable interest that was probably the sort of thing the Alaska Legislature had in mind when they defined the statute to encompass official action that benefited either "personal or financial interest[s]": A governor issues an official pardon in her own favor to excuse himself or herself from felony criminal responsibility under a state law. That's going to be an extremely rare situation, and it's obviously not this one.

Also: A commenter here points out that "official action" is defined in section 39.52.960(14) of the Alaska Statutes to include "advice, participation, or assistance, including, for example, a recommendation, decision, approval, disapproval, vote, or other similar action, including inaction, by a public officer." The commenter suggests that this permits "just talk" to be official action. I disagree that this makes all talk into "official action"; rather, what's key is that there be a specific action (or forebearance from acting) even if that action is performed by talking. Again, all that has ever been persuasively argued in the whole of Tasergate is that Gov. Palin impliedly threatened to take action against Monegan (firing or reassigning him) if he didn't act (critics say by firing, but that's their inference rather than anything Gov. Palin actually said) with respect to Wooten. Yes, the ethics statute — as substantially revised, broadened, and signed into law by Gov. Palin herself! — is intended to be broad. What it's intended to reach, however, is the exercise of power, through deeds or threats of deeds — and it's silly to say that it prohibits talking about a particular deed while not prohibiting the doing of that deed.

Finally: Branchflower only relied upon the first sentence of section 39.52.960(a), which contains the prohibition against "any effort to benefit a personal or financial interest through official action." As commenter Dan M notes on Prof. Post's post, that section goes on to recognize that "in a representative democracy, the representatives are drawn from society and, therefore, cannot and should not be without personal and financial interests in the decisions and policies of government." Moreover, under section 39.52.960(b), "there is no substantial impropriety if, as to a specific matter, a public officer's personal or financial interest in the matter is ... of a type that is possessed generally by the public or a large class of persons to which the public officer belongs." All Alaskans presumably share Gov. Palin's "personal interest" in not having child abusing law-breakers serve as state troopers. That should be the cue for good civil libertarians, including Prof. Post, to ask themselves: "Why are we lining up on the side of the trooper who drinks while driving his patrol car, illegally shot a moose while assigned to patrol fish and game violations, and Tasered his own 10-year-old stepson?" (I'll give them a hint: It starts with the letter "O.")

— Beldar

Posted by Beldar at 07:10 PM in 2008 Election, Law (2008), Palin, Politics (2008) | Permalink


Other weblog posts, if any, whose authors have linked to A reply to Prof. Post: It's nonsense to argue both that it was okay for Gov. Palin to actually fire Monegan, but that it wasn't okay for her to merely threaten to fire Monegan and sent a trackback ping are listed here:


(1) SAZMD made the following comment | Oct 12, 2008 7:35:37 PM | Permalink

Beldar, some of the Volokh types are harping on the issue of "personal" interest. It is easy to understand what financial interest is, but what is your read of "personal" interest? BTW, I think your point about official action is well taken.

I also made some points on Volokh myself about the due process issue. And as a matter of law (as opposed to politics) isn't it a bit premature to convict Palin, since the Personnel Board has the final say on the Ethics Act? How silly will these people look if the Board exonerates her?

(2) Larry Sheldon made the following comment | Oct 12, 2008 7:42:04 PM | Permalink

Tried to make this comment at Hewitt, but the login thingy is hopelessly broken and I can't find anybody to talk to about it.

There is a reason that I take anything at Volokh with a lot more salt than my cardiologist thinks wise.

Which is a same, because some of the stuff there is pretty good.

(3) Dai Alanye made the following comment | Oct 12, 2008 8:19:24 PM | Permalink

I think it odd that no one has complimented Branchflower on the amazing mental powers that enable him to decide (on the basis of nothing I've seen) that part of the reason Palin disciplined Monegan was the Wooten matter.

Further, has no one noticed that Wooten is still a trooper? If Palin actually did the Monegan deal to get rid of Wooten, how ineffective is she?

I think Occam's Razor must lead one to conclude that Palin acted against Monegan for the reasons she gave--poor performance, and insubordination in going behind her back to the legislature and the Alaskan Congressional delegation over budgetary issues.

All in all it's a petty matter, except that an emotionally unstable man is still a state trooper in Alaska.

(4) Beldar made the following comment | Oct 12, 2008 11:25:31 PM | Permalink

SAZMD, I've updated my post at HughHewitt.com to comment on the subject you raised, along with a couple of other points. Thanks, as always, to you and the other terrific commenters here.

(5) Charlie (Colorado) made the following comment | Oct 12, 2008 11:39:39 PM | Permalink

Sadly, Beldar, I haven't seen a whole lot from Post to suggest that thinking clearly is high on his list of talents.

(6) Milhouse made the following comment | Oct 13, 2008 12:18:25 AM | Permalink

Beldar, without reaching the issue immediately at hand, because I agree that there's no there there, I invite you to consider the curious crime of blackmail.

Suppose I were to stumble across evidence that you have cheated on your taxes. It's entirely my legal right (indeed, some — though not I — would claim ti was my duty) to report this to the IRS. It is also entirely my legal right to ask you for a gift of $10,000. And yet if I link that request to a threat to do what I'm perfectly entitled to do, it becomes a crime!

Some radicals might conclude that logical consistency requires that blackmail be erased from the criminal code. I tend more to the view that blackmail should be a legitimate defense to a charge of murder. But either way it tends, in theory at least, to undermine the argument you've made here.

But then, if you recall, I've maintained from the beginning that Palin should have insisted that Wooten be fired, and that it speaks ill of her that she would bend so far backwards to avoid the appearance of impropriety that she neglected her clear duty to have a danger to the public removed.

(7) Gregory Koster made the following comment | Oct 13, 2008 1:40:39 AM | Permalink

Dear Mr. Dyer: I'll grant you, as even the odious Branchflower does, that Governor Palin acted lawfully with regard to Walt Monegan. I also think that trying to invoke the Ethics Act to get her is silly. So let me back up one more step: Were Sarah Palin's actions toward Walt Monegan wise? Do they give me more reason to vote for her?

They were not wise. They give me less reason to vote for her. In my view, Palin's actions in re Monegan have damaged her.

How have they damaged her? Well, what did she have against Monegan? He did not carry out her plain, if implicit, wishes, canning Wooten (who deserves to be canned by the salmon canneries in Alaska, and shipped to China, where he will be a less noxious food to the Chinese than they've been eating or drinking of late.) She has the power to sack him. What signal did she send by this sacking? "Don't mess with me." She has a habit of doing this, as her opponents keep finding out. It is one thing to be following Machiavelli's advice, and getting her subordinates in line, by fear. That comes with high executive office, public or private. It is another to be doing this as part of a grudge. "De minimis lex non curat," say the lawyers. Translated into English: "Stop worrying about Wooten, Sarah, you've got a 586,400 square miles state to run."

Franklin Roosevelt learned the same lesson in 1935 when he tried to get rid of Robert Moses, who was not even a federal civil servant. Moses made a monkey out of FDR. FDR was reduced to plaintively asking one of his supporters, "Isn't the President of the United States entitled to one personal grudge?" Not if he's wise. Monegan does not have Moses's talent, but has had a similar, if smaller, effect.

Here's a question for you: we agree that Palin was thoroughly dissatisfied with Monegan's performance. She has the power to sack him. She did not. She offered him a reassignment which he did not accept. On its face, this seems poor judgment on her part. Why offer another post to someone she has no confidence in? What seems much more likely is that this was what is called a "ripper" offer: a poisoned chalice that no self-respecting citizen can accept, and hence resigns. This gives Palin cover; she can say I didn't fire him, he resigned rather than take the other job I offered him. That sort of deviousness wastes a lot of time, and gives cause to doubt an executive's jdugment. Monegan can now say, and has, that he feels vindicated, that people no longer think he's coming out of left field. No, Walt, we just think you are a weak sister who caved into the police union.

I'll still vote for McC-P, without hesitation. Should they lose, I would certainly consider her in 2012 or later. But this is a blotch on her record, that could have been avoided. The notion that it is all Todd Palin's fault is idiotic. Recall the Bumpkin's troubles with his family, and their rapcaious attempts to cash in on the Bumpkin's presidency, particularly his oafish brother Billy. The Bumpkin was reduced to whining that he couldn't control Billy, that Billy would tell him to go to hell if he tried to do so. It made the Bumpkin look weak, an accurate judgment that the Iranians and Russians, among others, profited from. So too with Todd. Palin should have taken him aside and told him to stay out of state business, Wooten or no Wooten, and that if he tried to interfere, she'd have him barred from state offices. That would have been a hell of a hard task, but Palin had done such grim jobs before. It would have been better if she had this time as well.

Sincerely yours,
Gregory Koster

(8) Beldar made the following comment | Oct 13, 2008 2:13:45 AM | Permalink

Mr. Koster: I would agree that in hindsight, the Palins were naive in thinking that the systems established for citizen complaints would, in the ordinary course of things, overcome the power of the police union to cover up for one of their own. Even Steve Branchflower has recommended that there be a better system of communicating to citizens the results of their complaints about state troopers.

I don't agree with you beyond that, however, because to do so, I have to join you in assuming that a substantial -- or even the primary -- motivation for reassigning Monegan was his refusal to do something more about Wooten. The timeline alone makes that unlikely, as does the other evidence of insubordination on Monegan's part.

Your premise is that this could have been minimized or avoided somehow. You underestimate the devious rancor of defeated candidate Andrew Halcro, the Gollom in this entire tale (who lacks any of Smeagol's redeeming features). Sarah Palin took from him "his precious," the governorship, in 2006, and ever since he's been trying to find some traction in any of his multiple attempts to stain her reputation. It was inevitable that his "cause" would become the Dems' cause if McCain picked her. But of one thing I'm sure, Mr. Koster: They would have found something to froth and foam about with equal vigor no matter who McCain picked.

(9) SAZMD made the following comment | Oct 13, 2008 6:07:13 PM | Permalink

I think it is obvious that Todd Palin was more invested in getting Wooten fired than Sarah was. After her conversation with Monegan where he told her to keep an arm’s length and that he would deal with Todd instead, she stopped being directly involved. Branchflower admits as much. And to me it is still an open question whether or not Sarah knew everything Todd was doing. Branchflower just assumes that, he never really proves it. His evidence seems to be that they were married and Todd spent a lot of time at the Governor’s office, so she must have known. Any married man would read that statement and be skeptical. It was also possible Todd was deliberately keeping Sarah out of the loop to protect her. Who knows? My own opinion is that she was vaguely aware of what he was doing, but that is obviously just a guess on my part.
Having said all of that, I agree partially that there was probably some poor judgment on Palin’s part in all of this. That’s not a crime; everyone makes mistakes. I think Wooten is everything the Palins have said about him, despite the obsessive efforts of jukeboxgrad over at Volokh. But after the initial inquiries, it should have been dropped. The PSEA was obviously protecting Wooten, and Monegan had no interest in taking them on.
What matters to me are the long term consequences of this. If Palin is cleared by the Personnel Board (the only people who have legal say over the Ethics Act), she will get past this – much like McCain did with the Keating Five. He showed poor judgment, but was never found to be unethical. If they find her guilty, her future national career is damaged, probably for the next 10-20 years.

(10) Xmas made the following comment | Oct 14, 2008 9:38:57 AM | Permalink

I agree with SAZMD. Take a look at "Event 8" (around page 55, I think) in the report. Monegan tells Gov. Palin that Todd should contact him directly about his concerns. Monegan opened himself up as a contact person for complaints about Wooten.

The follow-up complaints from Todd where all of the "And now he's doing this!" variety.

(11) Carol Herman made the following comment | Oct 14, 2008 11:40:05 AM | Permalink

If you owned a retail store, you'd know what it means to have items "stuck on a shelf." In other words? Customers don't come in to buy your merchandise. And, without sales, you get no profits.

Where's the error? McCain did harm to himself! It goes back to his 'flip-flop" ... where he cancelled th first debate. Also, he sat through Bush's "big" meeting. Supposedy, said nothing for 40 minutes. Then, just rose and left. Well? The presiden was chairing "that" meeting.

Afterwards? McCain would not do much else, except vote for the pork-filled senate version of the bailout.

Here, if you only did an inventory count, you'd see tha McCain seems to be losing States that were once considered "in the bag."

And, to chang this? McCain marginalizes himself, and goes negative against Obama. So? What's his plan? "He has a braclet." All "raise one bracelet."

What's the biggest harm? Well, this election was never about Bush! Get over it. Bush has wiped out his legacy. People really don't like him. And, most voters are not looking for "4 more years."

After 11/4, I think people will begin asking "exactly how did McCain get the nomination?

Is it possible, with only 30% of the population registered as GOP voters; the "base" is unwilling to elect someone more formatable then McCain? Does the prize go to Bob Jones University? If so? How so?

Anyway, as much as the base loves Palin, she's been a bonanza for Saturday Nite Live. Tina Fey says she hates the role. But what happens, if on 114 Obama wins the race? You don't see a "closing scene" ahead that could be hilarious to democrats? What size the audience? I have no idea.

As to the current mud-slinging; what's new about that? Okay. Only one side wins.

How can it be without Nixon to kick around, things could get this bad?

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