Palin staff may fight Troopergate subpoenas

CONFIDENTIAL: Who has the right to see personnel files at heart of legal showdown.

September 12, 2008 

Gov. Sarah Palin's administration is threatening to block any subpoenas by the Alaska Legislature as it investigates whether she abused her authority in trying to have her former brother-in-law fired as a state trooper.

The lawmakers are expected to issue subpoenas today compelling several state officials to appear for interviews with an investigator. That could prompt a legal showdown between the governor's office and legislators over whether the governor's staff is allowed to look into the personnel files of state employees.

The Legislature has hired a retired prosecutor, Stephen Branchflower, to examine whether Palin canned her public safety commissioner in July because he had refused to fire state trooper Mike Wooten. Wooten went through a messy divorce from Palin's sister, and the investigation essentially is looking at whether Palin used her power to try to settle a personal score.

One member of Palin's administration was caught on tape discussing personal information about Wooten, raising questions of how he knew those details.

In a letter made public Thursday, Senior Assistant Attorney General Michael Barnhill promised to go to court to block the subpoenas "unless the current manner of pursuing the investigation changes."

At the same time, Barnhill outlined a potential compromise: If lawmakers agree that the governor has legal authority to designate staff to review confidential personnel files, the staff members will voluntarily speak with the Legislature's investigator -- no subpoenas necessary.

The investigation -- known as "Troopergate" -- began in late July, a month before Palin was chosen as Sen. John McCain's running mate. But it's taken on new significance since then. Palin's supporters and even her lawyer have charged that the investigation is politically motivated, and urged lawmakers to turn the matter over to the three-member State Personnel Board, which is appointed by the governor and charged with handling ethics complaints.

Palin has said she fired the commissioner, Walt Monegan, on July 11 over disagreements about budget priorities. Monegan says he received repeated e-mails and phone calls from Palin, her husband and her staff expressing dismay over Wooten's continued employment.

In his letter to the 12 members of the state's Legislative Council, the body of Republican and Democratic legislators that unanimously approved the investigation, Barnhill criticized the way it has been conducted.

"At present the investigation is using such tactics as a tipline and secret depositions in which witnesses are asked under oath to testify to rumor and gossip," he wrote. "Those tactics raise questions about the scope and true purpose of the investigation."

Barnhill took exception to statements made by Sen. Hollis French, D-Anchorage, who heads the Senate Judiciary Committee. French was quoted early this month as saying that if the governor's office obtained confidential information from Wooten's personnel file "it would be a violation of state law."

Under state law, personnel records of state employees are confidential except for names, titles, dates of employment and compensation. Under standard operating procedures set out by the Department of Administration, which maintains many personnel records, routine access to confidential documents "is limited to those employees who must use state personnel records in order to perform their regular ongoing assigned job duties."

But nothing in those regulations prevents the governor from assigning staff members to review personnel files, Barnhill said.

"Conducting these depositions under an improper threat of potential prosecution is unfair," Barnhill wrote.

If the lawmakers agree in writing with his interpretation of the Personnel Act, he said, the attorney general's office "will drop its objections and the depositions may proceed without subpoenas."

Sen. Kim Elton, D-Juneau, who chairs the Legislative Council, was on a plane and could not be reached for comment Thursday. An aide, Jesse Kiehl, said: "He's read the letter. I don't believe that we have written back."

Barnhill acknowledged that if any administration officials improperly disclosed information from Wooten's personnel file, that could violate the law. But, he said, he knows of no evidence anyone did so.

One administration official, Frank Bailey, was recorded calling a State Troopers lieutenant and discussing confidential information about Wooten, including his job application and worker's compensation claim. In an interview under oath taken by Palin's attorney, he testified that he never saw Wooten's file, but instead received the information from the governor's husband, Todd Palin.

On the advice of Barnhill and their own attorneys, Bailey and six other witnesses canceled their scheduled depositions early this month.

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