Former state lawyer gets away with a crime — again

By ART CHANCE
SENIOR CONTRIBUTOR

Erin Pohland was a State of Alaska assistant attorney general. Then, nine years ago, she started to get in trouble.

On Dec. 30, 2010, Pohland had one excellent adventure when she and a friend were caught shoplifting hoards of shoes, but essentially got away with it.

[Read: Shoplifting shoes leads to a pair of disbarments]

She next came to law enforcement’s notice when she became involved with a case of forged union interest cards being turned in to the Alaska Labor Relations Agency.

Pohland, you see, was the State attorney assigned to advise the State’s labor agency in dealing with what appeared to be a criminal act.

Along the way Pohland neglected to inform the State that the person thought to be the forger was actually Pohland’s close friend and landlord, from whom she rented a suite of rooms in the suspect’s home.

[Read: Conviction of former Assistant AG overturned]

A search of Pohland’s computer reveal that she had actively worked with the suspect in helping her to avoid charges and Pohland, in her role as the labor agency’s official counsel on the matter, misled the State as to the appropriate course of action.

She was dismissed from the State and charged criminally with official misconduct.

The trial court convicted her, she appealed to the State Court of Appeals, which found that the computer was not legally searched by the State Troopers, and any evidence obtained from the computer was suppressed. Charges were ultimately dismissed.

The State Department of Law asked for reconsideration. On Friday, the Court of Appeals ruled that it still agreed with its first decision.

[Read: The Appeals Court ruling after the rehearing of the case, which has the entire timeline.]

So, although guilty as sin, she’s free as a bird. With the conviction erased, she can go on to inflict her legal skills on someone else.

I’m not going to lament the fact that when a lefty commits a bad act any place where lefties are in charge, it’s not a bad act at all.

What is worthy of discussion is why this Pohland mess happened.

I’ve done dozens of investigations of State employee misconduct, some of them with criminal implications. It is a delicate business and in some ways more art than science. It is easy to taint a criminal investigation with actions taken while conducting an administrative investigation. But the people who do labor relations in the Department of Administration know how to do investigations properly, and in my memory the State has never had a criminal investigation of employee misconduct tainted by the conduct of its own investigators in administrative proceedings.

The policy guidance that I put out in 2003, which remains in effect today explicitly directs supervisors and managers to immediately involve labor relations if there is a possibility of the misconduct also being a criminal act.

Yet, neither the Department of Law nor the Alaska Labor Relations Agency have much experience with investigating and disciplining or dismissing their own employees. Since it was created in the early 1990s, there has been almost no staff turnover at the Labor Relations Agency, other than from retirement. I recall no disciplinary actions there, or if there were any, they were so minor that they didn’t come to the attention of the Department of Administration.

Most of the employees of the Department of Law are partially exempt and essentially are political appointees. Any sort of formal discipline is extremely rare; so rare I don’t recall any in my 20 years.

Assistant attorneys general do get in trouble from time to time, but they usually just quietly resign and live to fight another day.

Some get asked to resign when the administration changes, and most also quietly go and live to fight another day. Some don’t and the State has lost some wrongful discharge suits by assistant attorneys general who were dismissed at the change of administration.

There’s the rub in Alaska employment law; the Alaska Supreme Court has held that there is an implied covenant of good faith and fair dealing in any employment contract, and it takes amazingly little to form a contract in the eyes of the courts. The reality is that no public employee and few private employees are really “at will” or “serve at the pleasure” employees because the courts have reserved to themselves the right to substitute their judgment for that of the employer in discipline and dismissal cases.

Then there are the State Troopers and the inadequate search warrant that let Ms. Pohland walk.

First, although the press reports and even the court decisions lay the inadequate warrant on the Troopers, it is extraordinarily unlikely that the Troopers prepared the warrant. At most they described the facts and circumstances to an assistant attorney general who prepared and presented the warrant to the court.

Pohland was simply bycatch in the search; the warrant was for her friend and landlord. I have to wonder why the Troopers and the Department of Law didn’t know that the suspect had a tenant and who that tenant was. It is pretty well established law that if you are going to search a dwelling you need to know if it is a multi-family dwelling and tailor the warrant to that fact. I don’t know that a Trooper should be expected to know that, though probably so, but an assistant attorney general certainly should.

Frankly, I never used the Troopers for white collar crime if there was local law enforcement. The Troopers are really good at some things, but white collar crime isn’t their thing. I really don’t know why the Troopers were brought into this matter since it happened in the Municipality of Anchorage, and Anchorage has pretty good white collar crime abilities. I don’t know if anybody will be interested enough in this debacle to do an after-action analysis, but if they do, why the Troopers were the criminal investigators inside city limits of Anchorage is a good place to start.

The record is clear that it was a Labor Relations Agency staff member who first suspected the forgery union cards, and had some idea that Pohland’s advice on the matter was tainted by her exceedingly close association with the forger.

Why did the Labor Relations Agency not go to the Department of Labor or the Department of Administration’s human resources and labor relations people for advice on how to proceed? Just who was driving this train? My conclusion is that nobody was driving it, and that is why it ended up in the ditch.

I have to believe that the Alaska Labor Relations Agency was totally taken aback by the forgeries. Despite some of my conservative friends’ fears, public sector labor relations in Alaska is pretty lawful and orderly. Some of us who’ve been involved in it are pretty rough players, but that is like the old saw about gun control: An armed society is a polite society. If you both know the other guy can really hurt you, you mind your manners. There really hasn’t been any significant conflict or controversy involving the State in a decade and a half. It seems that everyone just stumbled into this.

Maybe it is a good thing that the new commissioner of Administration Kelly Tshibaka has a background with the federal government’s Inspectors General. Alaska desperately needs a functionary whose job is to make sure the State obeys the law and follows its own rules.

Right now, and since Statehood, it has been up to the personal integrity of individual State employees to make the State obey the law; that is a heavy burden.

Art Chance is a retired Director of Labor Relations for the State of Alaska, formerly of Juneau and now living in Anchorage. He is the author of the book, “Red on Blue, Establishing a Republican Governance,” available at Amazon.