Judge orders speedy action on Miller's employment records

Jill Burke

Alaska Dispatch and three other media outlets may know as early as Saturday whether a judge will order the Fairbanks North Star Borough to publicly release records related to Joe Miller's employment.

Judge Winston Burbank
Jill Burke photos
Judge Winston Burbank may make a decision on Alaska Dispatch v. Fairbanks North Star Borough as early as Saturday, Oct. 23.
Both Alaska Dispatch and the Fairbanks Daily News-Miner filed suit earlier this month over the borough's refusal to allow public access to documents pertaining to Miller's job as a borough attorney. The news outlets believe the records contain information about Miller's job performance that Alaskans and voters have a right to review in advance of considering whether to hire Miller as the state's next senator. Joe Miller has been added the case to be able to defend his own privacy interests that may exist. The Anchorage Daily News has also entered the case on the side of the media, and the Associated Press is expected to join as well.

At a hearing in Fairbanks Tuesday morning, Superior Court Judge Winston Burbank ordered the borough to provide Miller's attorneys with full copies of the records in question, although he granted a protective order to prevent anyone other than the attorneys from reviewing the file.

The move comes in advance of Burbank's private review of the records. Alaska Dispatch had previously asked for a judge to independently evaluate the files and determine whether the borough had correctly identified which records to publish and which ones to withhold.

A ‘petty issue'

Based on Miller's admission Monday on CNN that at least one set of records pertains to his discipline over some type of ethics lapse, the attorneys for the media outlets argued that the documents connected to that event should be immediately released. Former borough mayor Jim Whitaker, under whom Miller served most of his tenure, has stated Miller was caught using the borough's computers in an attempt to oust the Alaska GOP chairman at an upcoming convention. At the time of the convention, March 2008, Miller was open about his desire to remove Randy Reudrich from leadership. Miller pushed cleaning up corruption and a return to ethics as the reasons Reudrich, who lost his own state job in a politicking-on-government-time scandal, needed to go.

In the CNN interview Monday, Miller admitted he had been disciplined for something, but attempted to minimize its significance by suggesting it was a petty issue from his past that happened over his lunch hour and which is irrelevant to the campaign issues on which the U.S. Senate election should be decided.

Miller attorney John Tiemessen told the court he believes Whitaker potentially committed a minor crime by talking about what Miller did and said Miller had no choice but to counter Whitaker's story on national television. (After the story broke about the March 2008 ethics investigation, Miller shut out Alaska media and declared he would no longer address questions about his personal life or his past.)

In the CNN interview, Miller answered questions about which Alaska Dispatch editor Tony Hopfinger had also attempted to get answers before Miller's security guards physically restrained Hopfinger and placed him in handcuffs.

After Whitaker spoke out, Tiemessen told the court, "Mr. Miller was then forced to go on CNN and correct the half-truths and misstatements."

Alaska Dispatch and its co-plaintiffs are arguing that a review of the relevant records is the only way for the voting public to know what really took place in March 2008 and to evaluate the seriousness of Miller's self-admitted ethics lapse.

A matter of timing

"This is a critical time and a critical issue," Alaska Dispatch attorney D. John McKay argued in support of immediately releasing the March 2008 records. "This story deserves to come out."

About 36 public records requests have come in to the borough from people and news organizations seeking information on Miller, said borough attorney Rene Broker, adding that the borough is ready to move on. "We would just like to get out of the middle of this and get it resolved as soon as possible," she said at Tuesday's hearing.

During his attempt to block the case from moving at a speedy pace, Tiemessen accused the media of manufacturing a false sense of urgency, noting that the first records release came out in July, about three months ago and that no legal action was sought until earlier this month.

"Plaintiffs waited until the eve of election -- and we believe -- to create a ‘neat story' on the eve of the election with a court ruling," Tiemessen said.

"When we do things fast it leads to expediency but it doesn't always leave to justice and it doesn't always lead to the right result," he added.

McKay pointed out that the court case was filed only after an unsuccessful attempt to resolve the issue directly with the borough and that Miller had also not been responsive to the borough's requests for his involvement in arriving at a potential solution.

"Frankly, we'd love to hear from Mr. Miller," McKay said.

Opinions on speaking out

Miller has previously indicated a willingness to talk about his employment history with the borough, but has maintained he first needed the borough to waive its attorney-client privilege.

Now, the Alaska Bar Association has indicated it, too, believes Miller can speak openly -- to a degree -- and the opinion echoes the borough's earlier analysis.

In an attempt to resolve the dispute without going to court, the borough advised Miller it felt he was free to speak without waivers, in order to defend himself in any controversies.

On behalf of Alaska Dispatch, McKay posed the question to the ABA in a letter seeking an informal ethics opinion from the association.

Within two days, ABA attorney Stephen Van Goor wrote back. In a letter dated Sept. 30, Van Goor concluded that under the Alaska Rules of Professional Conduct, a lawyer "may disclose client confidences or secrets the lawyer reasonably believes are necessary in self defense." Moreover, a lawyer does not need to have his client waive any privileges before choosing to talk about confidential matters, he wrote.

Judge Winston Burbank and media attorneys
Judge Winston Burbank hears arguments Tuesday from attorneys for Alaska Dispatch and other media outlets in favor of expediting the suit over Joe Miller's records.

However, Van Goor made it a point to emphasize that lawyers cannot run around outing client secrets indiscriminately. They are only allowed to reveal confidences to the extent "the lawyer reasonably believes is necessary." Overreaching breaches -- like revealing medical records in a dispute having to with fees -- could cause an overly loose-lipped lawyer to be subject to professional discipline.

Making the case for disclosure

McKay is asking Burbank to order the disclosure of Miller's records, which McKay believes the borough law allows for. McKay is also pushing Burbank to resolve any discrepancies he interprets between the state's disclosure law and the borough's laws by allowing the state's framework to take priority.

Access to the records, McKay wrote in a motion in support of releasing the records, is the only way to clear up a number of matters of significant public interest.

"Whether he has been victimized by conspiracies and criminal acts of Borough employees in league with his political opponents, as he claims, or whether the documents show he has not been truthful about the completely voluntary nature of his termination, wrongdoing during his employment, or with respect to his accusations against his former employers are matters that the voting public has the right to clear up promptly," McKay wrote. "The public's interest in disclosure with regard to these things far outweighs any interest U.S. Senate candidate Miller has in secrecy."

Still, the goal is not to dig for information that should rightfully be held private, like medical records pertaining to Miller's family, McKay said, adding that not everything having to do with any sort of medical record should automatically be considered off limits:

"The Dispatch respects and honors Mr. Miller's military service to our country, and that of others who have served, but submits that Mr. Miller should not, on the one hand, publicly urge voters to focus on his military service, without allowing voters to know if, for example, he suffered from a serious, service-related disability, were that the case."

McKay argues that the information the press is seeking is no different than the types of things any future employer -- be it a Safeway or the Co-op Drugstore -- would want before making a hiring decision. Alaska Dispatch "is not seeking information about a job that Mr. Miller held in high school or college," McKay said. It "is seeking information arising from or relating to a government job, which Mr. Miller refers to in his campaign as ‘public service,' and which Mr. Miller held for a longer period, and more recently, than any other job in his career."

"The law," McKay wrote, "does not give the Borough the right to decide for the people what is good for them to know about Mr. Miller and what is not good for them to know."

The judge gave Miller's attorneys until the end of the week to weigh in and provide their analysis on why Miller's records should remain secret.

All sides will meet again in his courtroom this Saturday to further argue their positions. The unusual weekend hearing was scheduled because Burbank expects, regardless of how he rules, that either side may wish to challenge his decision before the Alaska Supreme Court.

Contact Jill Burke at jill(at)alaskadispatch.com.