Kevin Clarkson's inescapable conflict of interest

The Alaska attorney general understood better than anyone that he had no business deciding the merits of a petition to recall the governor of Alaska.

In Alaska, the governor hires and fires the attorney general. They don’t serve as equals, but as employer and employee. If the governor is out of a job because of a recall, the attorney general is likely to be unemployed soon after.

When it comes to any decision about the political survival of the governor, the attorney general has an inescapable conflict of interest. If he wrote a legal opinion rejecting the recall, it would open him to charges of political favoritism.

“if I were to render an opinion which concluded that the statutory requirements (for recall), had not been met, people would view that with askance,” the attorney general said.

To avoid a conflict or the appearance of one, the attorney general looked for an independent and respected attorney who could review all the particulars and write a legal opinion on behalf of the state.

He needed someone with an open mind who could be neutral and didn’t have a political stake in the survival of the governor or the attorney general. “It wasn’t easy” to find someone like that, he said.

”Some people could be regarded as too close to the governor politically, other people were doing legal work for the state, and other people personally had strong feelings either for or against the governor,” the attorney general said.

He chose an Anchorage attorney who spent two weeks reviewing the matter and wrote a 16-page opinion. The attorney general received it on Aug. 24, 1992.

The attorney general in question was Charlie Cole of Fairbanks, no relation to me. The governor was Wally Hickel and the author of the legal opinion was Hal Brown, an Anchorage lawyer who had served as attorney general under Gov. Bill Sheffield.

Brown concluded that the allegations in the recall petition that claimed Hickel was too forgetful to be governor and had made poor choices for boards and commissions were too vague to justify approval of the recall petition.

A bizarre legal battle followed, some of the details of which I recounted in a column the other day.

I bring this incident up because when the legal question about recalling Gov. Mike Dunleavy reached Attorney General Kevin Clarkson, he should have recognized his conflict of interest.

He should have behaved the way that Cole did in 1992 and hired an independent counsel. He probably could have found a good one for less than $600 an hour.

Instead, he ignored the conflict of interest and the self-serving nature of this political exercise, while pretending to be neutral. He concluded that the Dunleavy recall is illegitimate and should be stopped, ignoring some important court precedents. The decision was a surprise to no one.

The comment that Cole made to AP reporter Rosanne Pagano 27 years ago fits exactly into the predicament facing Alaska today because of Clarkson’s behavior: “if I were to render an opinion which concluded that the statutory requirements (for recall), had not been met, people would view that with askance.”

There is also reason to look askance at Clarkson’s approach to the court scheduling of the recall case.

In a variety of recent cases, including his anti-union crusade and a dispute about the election initiative, the state has argued for expedited handling in the courts, claiming it is in the public interest.

Expedited handling is in Clarkson’s interest in the anti-union case, as explained here. He wants to get the case into the federal courts as soon as possible and the state asked the judge for a final ruling ASAP. “There is a public interest in having this issue resolved expeditiously,” the attorney general’s office said Oct. 25.

Expedited handling is also in Clarkson’s interest with the election initiative as he wants to keep that off the ballot next year. “The state seeks extremely expedited consideration of this appeal so that this court can consider the state’s arguments on their merits,” the attorney general said in a document filed Nov. 1, asking for a scheduling decision that day and for oral arguments in two weeks. The state wants to “resolve this appeal as quickly as possible.”

But the handling of the lawsuit challenging Clarkson’s rejection of the recall is another matter. Attorneys for the recall are to argue in Anchorage Superior Court Friday morning that the recall deserves expedited handling by the court system.

Clarkson’s view on this? “We do not see the need to expedite this matter,” a subordinate attorney wrote to the lawyers challenging the state rejection.

Expedited handling of the recall case is not in Clarkson’s interest, as he is trying to keep Dunleavy as governor and Clarkson as attorney general for as long as possible. Delaying the recall with legal gymnastics does that.

But expedited handling is in the interest of the 46,405 Alaska voters who signed the recall petition and deserve an attorney general who is not so blindly partisan as this one.

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