‘The warrant was defective’

SO MUCH MORE THAN THAT WAS DEFECTIVE

By ART CHANCE
SENIOR CONTRIBUTOR

In my Feb. 3 column I wrote of the sorry affair of former State Assistant Attorney General Erin Pohland, who was dismissed from her job and convicted of official misconduct for her role in forged “union interest cards” being presented to the Alaska Labor Relations Agency by her friend and landlord, a union organizer.

[Read: Former state lawyer gets away with crime — again]

The Alaska Court of Appeals found that the search warrant on which the charges were based was defective. The judge set aside her conviction. She’s free as a bird, and since she appears to be at least the sociopathic version of smart, she’s probably working on her wrongful discharge suit against the State in which she’ll seek reinstatement and back pay, but what she really wants is a nice settlement.  She’ll likely get it.

[Read: Conviction of former Assistant AG overturned]

This is just one of the screw-ups by the Department of Law and law enforcement recently and it is worth a look into what went wrong. Several questions come to mind.

• Why wasn’t she fired and all her State devices and communications secured before law enforcement was involved?
• Why wasn’t there a full administrative investigation?
• Why wasn’t the investigation based on her communications on the State network and State devices, which wouldn’t have required a search warrant?
• Who actually owned the cell phone and computer at issue?
• How many of the emails and texts found on the computer at issue were from or to a State device or transmitted through the State network?
• Why was the nature of her living arrangement not known before seeking the search warrant?
• And why in the world would the Department of Law pursue this matter all the way to the Court of Appeals with what even a layman can see as a flawed search warrant?

There are a lot of things wrong with the way this matter was handled.

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

Back when State government was run by Baby Boomer troglodytes like me, it was iron-clad dogma that you carried out the administrative investigation first, and at least got the subject off the payroll with an unpaid suspension and preferably a dismissal. Then you involved law enforcement.

The preferred course of action was to fire the employee and then have the supervisor call the police or the District Attorney and make a complaint.

That course of action has a long and painful history: Commissioned public safety officers, Troopers and similar employees, were carved out of the General Government Unit of State employees in 1979. They formed the Public Safety Employees Association.

PSEA’s business agents and lawyers proceeded to eat the State’s lunch and sleep with its girlfriends for the next decade, literally. I can, but won’t, tell stories of these liaisons.

When I joined State Labor Relations in the Spring of 1987, the staff was still reeling from losing an arbitration over the dismissal of a State Trooper caught shoplifting — while in uniform — at Long’s drugstore in mid-town Anchorage. The State was on the front page a lot over that. Some of us resolved that we weren’t going to share either girlfriends or the front page with PSEA anymore and we got serious about figuring how to beat them.

As a general rule, in an administrative investigation a public employee cannot refuse to answer a question and can be dismissed for insubordination if s/he refuses.

In Garrity v. New Jersey the US Supreme Court held that if the alleged misconduct might also constitute a crime the employee cannot be compelled to answer questions that might lead to self-incrimination and that compelled statements might be inadmissible in court.

Loudermill v. Cleveland Board was handed down by the U.S. Supreme Court in 1985 and was followed closely by Storrs v. Municipality of Anchorage in the Alaska Supreme Court.

Loudermill and Storrs set out the contours and limits of the due process rights of public employees and set the format of a predisciplinary interview before a disciplinary action. Garrity informs the limits of the questioning in such an interview if the alleged misconduct also involves a crime.

There was a lot of turnover in State labor relations early in the Hickel Administration and we who remained there were tired of being famous for losing. We resolved that the days of headlines about how the noble union had defeated the evil State and got the pure as the driven snow employee’s job back were over.

In the early 1990s, we standardized our disciplinary notices and our interview processes and it didn’t take long to stop being famous. We lost one here and there, but that is normal for a healthy collective bargaining relationship; if you always win you’re being too conservative.

We managed to not be famous even through the bad years early in the Knowles Administration, though I’ll admit that our disciplinary standards lapsed because the unions didn’t need a grievance procedure if they had the commissioner of Administration’s direct line number.

When I came back to the Executive Branch in 1999, I committed that there would be no evil State defeated by noble union headlines again and I made it stick for the seven years I remained there and it held for almost ten years after I retired.

I’ve taken you on this history rampage to drive home the point that when I left government in 2006, handling the Pohland matter would have been in muscle memory for anyone in State human resources administration or labor relations as well as the Governmental Affairs lawyers, and prosecutors who live in a somewhat different legal environment would have known what they didn’t know and brought in Governmental Affairs or labor relations.

There are only a handful of people still around from those days, but they’re in pretty high places. Either the institutional knowledge and culture have faded away or the State has become so decentralized that nobody is in charge of things like the Pohland matter.

I remarked back during the National Guard sexual abuse scandal that it would never have happened on my watch.   No governor that I worked under, Cowper through Murkowski, would have left that in the hands of the operating department, and especially not in the hands of the Department of Military and Veterans’ Affairs, which is notorious for trying to keep everything away from Administration and the Governor’s Office.

The congenital bureaucrats and the shape shifters in State government were bitterly resentful of me and some of my associates in the Murkowski Administration for taking away much of their authority over human resources and labor relations.

Then, Dianne Corso retired as director of Personnel in 2005, and I retired as director of Labor Relations in mid-2006. Our successors came under immediate and intense pressure to give the departments’ authority back and now they obviously have it back.

The State’s organizational culture has become the culture of Millennials and Gen-X-ers. Things like standard procedures, formal processes, and chains of authority if known at all are just archaic relics of a bygone time. Things that nobody in my time would have put in writing or even discussed other than behind a locked door are discussed in emails with three lines of cc: addresses.

Even in the notorious confrontation between Sarah Palin and Randy Ruedrich, the Governor’s Office called the commissioner of Administration, and the commissioner, or at least his deputy, called me. We sat down and wrote up that boilerplate notice of interview memo that I still have pretty much memorized. There are probably at least some musty copies of memos like that in labor relations and HR offices. If they had just followed long-established practices there would have been no National Guard scandal and there would not have been the Pohland debacle.

I’m still looking into it, but I suspect if they’d have just followed some established practices even the court ruling that the Democrats took advantage of to remove a Republican-appointed judge (Michael Corey) wouldn’t have happened either. (I defended the judge at first but on reflection, he should not have accepted that plea and he should have made the Department of Law find the victim and produce her testimony.)

I’m still looking into it but I’m beginning to think that the plea deal made by prosecutors in that case was just a “cover your butt” move for not taking the necessary steps to find the victim.  I’ve heard just about every excuse for how the workload was what made State employees slow and slovenly, but usually it is lax supervision and failure to follow established procedures.  I’m beginning to think that the procedures are nothing more than an artifact these days.

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.