Anchorage's former police chief was secretly suspended for two weeks without pay in 2015, a fact hidden even from elected representatives until it emerged in the course of a civil trial last year.
A confidential city report at the time criticized the chief, Mark Mew, for the way he handled concerns about a police lieutenant who allegedly interfered with investigations into the Alaska National Guard sex and drug scandal, court records show.
As a result of the report, the administration of then-Mayor Dan Sullivan suspended Mew. The city also fired the police lieutenant, Anthony Henry, who soon countered with a lawsuit alleging retaliation and unlawful termination.
Word of the secret suspension, first reported by KTUU-TV, raised questions about the balance between personnel records and the public's right to know about city officials accused of misconduct.
But few details are publicly known, and an Anchorage Superior Court judge this week denied an effort by the Anchorage Daily News and KTUU to gain access to the confidential report that led to the disciplinary action.
The two news organizations argued there was a constitutional right for public access to the report, which was an exhibit in the trial and was provided to the jury. But the judge, Frank Pfiffner, said he did not think it was the "time or place" to disclose the report. He pointed, in part, to privacy rights for Henry and the police employees, victims and informants named in the report and also said the news organizations should have asked for the report before the case was over.
Existence of the report, written by former Pennsylvania state police officer Rick Brown, emerged last year during a lawsuit brought by two former minority Anchorage police officers, Alvin Kennedy and Eliezer Feliciano, who claimed they were subjected to a hostile work environment. A jury ultimately awarded more than $1 million in damages each to Kennedy and Feliciano. Pfiffner sharply castigated the city for its tactics, in an order awarding nearly half a million dollars in attorney fees to the plaintiffs — double the amount that would otherwise have been due.
There were two trials in the Kennedy-Feliciano case. The first happened in 2014.
At that time, Henry was a star witness for the city. Henry had conducted an 18-month investigation of APD's now-disbanded Metro Drug Unit, to which Kennedy and Feliciano were assigned.
Before the second trial, Mew knew of serious accusations against Henry, according to Pfiffner's ruling last year on the attorney fees. Henry was accused of ordering APD officers investigating members of the National Guard to identify sexual assault victims and whistleblowers to Gen. Thomas Katkus, the head of the Guard and Henry's former colleague at APD. The investigative leads "promptly" dried up after the alleged disclosures by Henry, Pfiffner wrote.
Even so, to preserve Henry as a credible witness in the Kennedy-Feliciano trial, Mew delayed investigating Henry, according to Pfiffner's ruling.
The first trial resulted in a hung jury. It was then that the city hired Brown to investigate Henry, Pfiffner wrote.
By the second trial, in 2017, the city had fired Henry based on Brown's investigation and Henry had sued the city. Henry was now considered a "hostile witness," and the city chose not to use him in the second trial, Pfiffner wrote.
According to Pfiffner, Mew's motivations for delaying an investigation of Henry were disclosed in the Brown report.
The nearly 100-page report also includes what the city describes as sensitive information about sexual assault victims and illegal activity. Portions of the report were provided to jurors during the second Kennedy-Feliciano trial as evidence that claims against white officers, like Henry, were thoroughly investigated, while claims against minority officers were not. Pfiffner initially ruled in January 2017, at the start of the second trial that the redacted the full document should be made public. But lawyers for Henry convinced him the next day to limit public access to the report.
In December, the Daily News and KTUU filed the motion in the Kennedy-Feliciano suit to obtain a redacted version of the entire document. An attorney for the two organizations, John McKay, argued the report was already part of the judicial record when it was admitted as an exhibit and given to the jury, and the public had the right to access the information
The content in the Brown report "relate directly and substantially to whether the behavior of the police officers and officials involved conformed to the code of conduct required of a democratic society," McKay wrote.
The city and Henry's attorneys — at odds in Henry's lawsuit against the city — joined together to oppose the release of the Brown report.
City attorneys argued the report was under a protective order in federal court, and an order from Pfiffner to unseal it would cause it to violate that order.
Henry's attorneys, meanwhile, said Henry would not have a chance to defend himself if the document were released now, though they suggested Henry planned to refute the report in the upcoming trial in his lawsuit. One attorney called the report "false and salacious"; Henry's court filing to oppose the release of the Brown report called the arguments about a National Guard cover-up "over-generalized" and "unsupported."
In his order not to make the Brown report public, Pfiffner said he agreed that if he required ordering the city to produce the report, he would be ordering it to violate a federal court order. He also cited confidentiality rights for Henry and others mentioned in the report, including sexual assault victims.
Pfiffner suggested the news organizations instead pursue the case in federal court, where the Henry case may go to trial later this year.
The news organizations haven't decided whether to appeal, said Daily News editor David Hulen.
Ken Legacki, the attorney for Kennedy and Feliciano, called in to the court hearing Wednesday afternoon. He told Pfiffner the Brown report should be public, and said he had spoken to Anchorage Assembly members who were not familiar with the document.
"I don't know who is really driving the bus here, as to what is disclosed or not to even the executives of our city who make financial decisions," Legacki said.
Either way, such a high-level suspension will likely not be so secretive again.
This past September, after learning of Mew's suspension from media reports, the Assembly updated the city's laws governing disclosures on personnel matters.
The change means the city must report disciplinary action for high-level city executives, including the police chief, to the Assembly within a month of the action taking place.