Palin circles the wagons: Transparency a casualty

Seems like just yesterday, Sarah Palin was on a passionate crusade for open and transparent government. Fighting the Randy Ruedrichs and the Greg Renkes of the world, demanding a government that allowed a clear view for all to see from the outside.

Today it appears time for Palin to write an obituary for that noble crusade.

In a shocking interview with Anchorage Daily News Reporter Lisa Demer on Thursday, Palin's Communication Director Bill McAllister defended the administration's abandonement of their "open and transparent government" promise by saying it didn't really apply to everything. 

"Open and transparent government was something that came up during the campaign and was largely in reference to the stranded gas act versus the AGIA concept under Governor Palin."

One thing comes to mind after listening to McAllister rewrite history regarding the promises Palin made about open and transparent government; what the hell is Bill McAllister talking about?

But don't take my word for it; look at the facts. 

First, go the State of Alaska website and search the terms "Open and transparent." No fewer than 5 pages appear with soundbites from Governor Palin about her commitment to open and transparent government while speaking about different initiatives.

Second, simply look at history. Time and time again, when Palin has invoked the words open and transparent, there is no mention of the stranded gas act or AGIA as McAllister claims.

In November of 2006 on her campaign website she promised voters, "Sarah will open the door wide to transparent and accountable government."

On November 1, 2007 after the indictment of Vic Kohring, Palin's press release stated, " Public trust and integrity are the foundation of good government. This reaffirms my commitment to conduct the people’s business in an open and transparent fashion.”  

On March 28, 2006 in a press release regarding putting the state's checkbook online she said it was part of implementing her mandate for more open, transparent government.

In the interview with McAllister, the ADN's Demer ask him if the Palin administration was backing away from it's "guiding principle" of open and transparent government.

McAllister offered Demer another shocking response, "Open and transparent does not mean you lose all common sense and conduct everything out in the open."

The truth is this entire administration has begun to batten down the hatches due to the Branchflower investigation.

The recent opinion by Attorney General Talis Colberg that state employees have a right to privacy while using state issued communication equipment has set off a heated debate and one that will undoubtedly end up in court.

In addition, the governor's Department of Administration appears on the verge of enacting more stringent requirements for the public to ask for public records.

Oh my dear openness and transparency, what has happened to thee?

I'll tell what happened; Palin and her staff have been using their state issued Blackberrys and computers to conduct acts of personal retribution, and the attorney general is covering for them.

So why come out with this opinion now, especially in the middle of a scandal fueled by the revalations of secret communications?

According to one of my sources who tipped me off about the Bailey phone call days before it was publicly released as well as the Kopp payout days before it was publicly released; the governor is in deep snow.

Apparently there is credible evidence of Blackberry communications that Palin herself communicated with her staff and Monegan about firing Wooten.

This explains Colberg's over reaching opinion which has many government watchers shaking their collective heads.

One of our legal friends offered this brief analysis of Colberg's recent opinion:

The AG says that we the People need to trust our government to make decisions for us. It is doubtful that any employee ever has a constitutionally protected "expectation of privacy" when they are using their employer's communications equipment. That is black letter law for private employers, and the AG makes a huge leap in logic when he then says that the privacy clause of the Alaska Constitution turns that on its head.

This is not a situation where the government is proactively intruding into private citizens' private lives; instead, it is a situation where a person has chosen to be employed by the State and has voluntarily placed their personal information on a public system.

The argument that because the use is "insignificant" in no way means that it should be excepted from the public records act. That logic simply doesn't follow. It just means that if that indeed is the legal standard, and the use is "insignificant," then the employee doesn't get tagged with an ethics violation.

Here is but one ridiculous result from this new ad hoc "policy": the public is not allowed to see the documents by which the public could determine if the use of public resources is de minimus or insignificant. We must simply trust the government – in this case, the same people that may have violated the law -- to look at the communications in secret and out of the public view and make a determination.

The AG also applies tortured interpretation of the public records law to mean that it somehow excludes certain documents because they are not "public records" as defined by statute as "developed or received by a public agency."

Following this reasoning, political activity on state computers (or alleged political activity) would NOT BE A PUBLIC RECORD, and therefore could not be disclosed to the public.

In addition, as noted above, to the extent the privacy clause of the AK Constitution protects state employees expectations of privacy, it would likewise apply allegedly political activity. This cannot be right, and this example shows the fundamental flaw in logic of Sarah's AG office.

The People are entitled to see and judge for themselves if a state employee's communications are de minimus or insignificant just as they are entitled to view alleged political activity and judge for themselves.

A former State Labor Relations Director also offered his opinion:

This is a formal, written opinion of the Attorney General and as such is the law unless and until a Court decides otherwise. Significantly, it was written by Bockman, the Ethics Attorney. More significantly, it represents a fundamental departure from the State's official practice regarding private use of State electronic resources.

Back in the "good old days" the only issue was either excessive time on a State phone or running up long distance bills on one. Excessive time would get you disciplined, running up long distance would get you disciplined and made to pay for them and might get you fired. Life was simple.

The Knowles Administration was in a heated rush to wire the State and get everybody on email and the internet. There were some pretty good fights between the "free internet" types with the Administration, e.g., Com. Boyer, and the tight-assed bureaucrats, like me, who wanted some rules on usage. At first the free internet types had the upper hand, but life being life and employees being employees, a high level IT employee in Public Safety used a State computer to make a date with a fourteen year old, at least it was a girl, and got caught by the APD. The Administration decided they might need some rules after all and the IT policy was promulgated and each employee obligated to adhere to it.

The key to State policy regarding electronic resources, and any other State resources, e.g., your desk drawer, is that it is NOT your resource and you have NO expectation of privacy in its use. The State explicitly tolerates de minimis personal use, but the price of being able to get the grocery list from your spouse by email is that it becomes the State's email and if somebody wanted your grocery list, they get it under the PRA.

This Opinion is a dramatic departure from that, and it is an unnecessary and foolish one. The AG has now countenanced PRIVATE personal use of State resources, something that is unprecedented. The Opinion is right, but the policy is wrong, stupid, and will bite this or some other administration in the a**. It is a policy question as to whether State employees have an expectation of privacy in the use of State electronic resources. If they do have that expectation, then Alaska's quite stringent Constitutional privacy protections inhere to the employees. But the Constitution does not guarantee them that privacy, it only protects them where they have the expectation of privacy.

State employees have never before had the expectation of privacy in ANY act related to their job or for which there is even a nexus to their job. The State rather routinely fires employees for off duty conduct for which a job nexus can be demonstrated. Now the State has said that some of your actions on a cell phone, Blackberry, or State computer are private and cannot be used against you or discovered under the PRA.

I have had some spirited exchanges with AAG Bockman myself over the contours and limits of the Ethics Act. I'm willing to bet this ain't her idea! I know most of the Labor and State Affairs (or whatever they're calling it this week) attorneys and I know they know better than to confer an expectation of privacy on State employees. So, the question becomes, Who made the policy decision and why?

It is evident to anyone watching that almost everyone in this Administration with a range that starts with a 2 uses Blackberries like Ninth Grade girls use their cell phone. It is equally evident that some very dumb things have been said and done on those Blackberries. Now they want to countenance a notion of privacy so those dumb things don't get spread all over the front page of the ADN as the result of a Public Records Act request.

Here's hoping that there's another dumba** in the wings to make a date with a fourteen year old or some such so that the utter foolishness of this shortsighted opinion will become evident and the policy will be reversed.

There's been an ongoing controversy about whether or not even the allowed de minimis use of State cell phones, laptops, PDAs, internet services, etc. represents a form of compensation to employees and thus must be reported to the IRS as taxable compensation.

I'm pretty sure this settles it; now that it is legally sanctioned to make PRIVATE, not governmental, use of these devices, the State can spend a few thousand dollars worth of Fiscal Section time every month going through the bills, emails, and histories to determine what is personal, private use, determining its value, and adding it to each employee's taxable compensation.

Sometimes I'm still amazed at what supposedly intelligent people do.

The Department of Administration has issued a notice to adopt regulation changes in Title 2 of the Alaska Administrative Code, dealing with the Alaska Public Records Act, to comprehensively refine, update and clarify the regulations, standardize terminology used; refine statutory authority citations and make other changes.

It appears very clear that the Palin administration is using the Attorney General's over reaching opinion to craft more restrictive rules on what the public can gain access to.

One has to wonder, what if Governor Murkowski attempted this brazen move while Palin was waving the red flag about Randy Ruedrich and Greg Renkes using state resources for personal business.

The news regarding the death of open government has not been greatly exaggerated.

To hear Lisa Demer's interview with Bill McAllister: