Was Miller politicking on borough time?

By Jill Burke, Patti Epler and Joshua Saul | Oct 10, 2010

With new questions being raised about Joe Miller’s behavior as a Fairbanks North Star Borough attorney, Alaska Dispatch has asked borough officials to reconsider their refusal to fully release a number of documents from Miller’s personnel file.

U.S. Senate candidate Joe Miller speaks with supporters following the Aug. 24 primary election. Alaska Dispatch has requested documents from Miller’s personnel file at the Fairbanks North Star Borough that may provide insight into Miller’s time at the borough.

The request comes amid accusations that while employed as a borough attorney and on borough time, Miller used borough computers for politicking — the sort of problem that forced Alaska GOP chairman Randy Ruedrich to leave his job at the Alaska Oil and Gas Conservation Commission. A former borough employee, speaking on condition of anonymity, told Alaska Dispatch that Miller was caught doing the same sort of thing in 2008.

Requests put into Miller this weekend for a response to the accusation went unanswered, although attorney Thomas Van Flein — who monitored ballot counts after the primary for Miller, has worked for the Palin family, and who is assisting Miller’s campaign in connection with this issue — did contact Alaska Dispatch seeking information about whether reporters had obtained Miller’s personnel file.

Miller recently accused the borough itself of politicking and asked for a public outcry in response. “The Fairbanks North Star Borough must be held to account by voters for FNSB employees’ use of borough assets to assist the Murkowski campaign,” he said in a statement posted on his website. “An immediate investigation should ensue.”

Alaska Dispatch is now seeking information from the borough on two distinct issues: the circumstances leading up to Miller’s resignation, and a series of entries in his file chronicled over a one-week period in March 2008. That timeframe coincides with the Alaska Republican Party’s annual convention and Miller’s failed effort alongside the state’s newly installed governor, Sarah Palin, to get rid of party chair Ruedrich.

Palin, a onetime AOGCC commissioner, exposed Ruedrich’s ethical lapses in conducting Republican business out of his office at work and then used her reputation as a corruption fighter to bootstrap her way into the governor’s office.

Miller, a former borough attorney who is now a contender for U.S. Senate, has said a number of times he wants “full disclosure” regarding his departure from the borough, wrote Alaska Dispatch attorney D. John McKay in a letter sent last week to the borough seeking the release of more of Miller’s records in furtherance of Miller’s wish.

The fact that Miller is running for Senate makes it even more important that any questions about his government service be cleared up by the borough making records public, McKay said. He noted that the law allows for disclosure; the Alaska Supreme Court has ruled on a number of occasions that “applicants for high government positions expose their private lives to public scrutiny.”

Moreover, he said, the high court has said that information and personnel records can be made public when the matter affects the public.

Lots of talk, but few answers

Speculation about Miller’s departure from the Fairbanks North Star Borough began on June 28 when Andrew Halcro, a political blogger and friend of Murkowski, posted a simple item on his blog entitled “We Know Palin Quit … But why was Miller Fired?”

Two days later, Miller spokesman Randy DeSoto told Alaska Dispatch Miller was neither fired nor asked to resign. The current borough attorney and the former borough mayor, both of whom served during the bulk of Miller’s time with the borough, declined to comment. Rene Broker, the borough attorney and Miller’s former boss, said she wasn’t comfortable speaking about Miller’s work without the candidate signing a release allowing her to do so.

Miller has never signed such a release, leading various news organizations to try to obtain the borough records through the Freedom of Information Act.

Since questions first arose about Miller’s departure from the borough, Alaska Dispatch and other media outlets, including the Anchorage Daily News, the Fairbanks Daily News-Miner, The Associated Press and the Alaska Public Radio Network, have filed requests with the borough seeking more details about Miller’s employment history.

Miller has stated numerous times that he left voluntarily, and on July 1 his then-campaign manager, Paul Bauer, provided a copy of Miller’s resignation letter. In it, Miller references disputes that had taken place between himself and Broker. There were disagreements over conflicts of interest between his borough and private practice work, matters related to ongoing litigation involving the trans-Alaska oil pipeline, and the denial of time off to go elk hunting with his boys, according to that letter.

On July 1, Miller’s campaign also released a statement that said Miller would be happy to sign a release for his records as long as the borough would waive its attorney-client privilege. “Joe Miller and the Campaign will not allow the borough to hide behind the attorney-client privilege when he needs to describe the reason why he voluntarily left,” the statement said.

Miller reiterated this position nearly two weeks later at a pro-life fundraiser on July 12. “I will tell you unequivocally: I was not fired,” and “I absolutely want to talk about what happened,” he said.

The borough sent Miller a letter three days later, on July 15, asking him what he would like to release and what he considered privileged. He never responded to that query, yet has continued to say publicly that it is the borough that is asserting attorney-client privilege, according to a letter sent to Miller last week in response to a records request from Alaska Dispatch asking him — again — to allow the borough to release personnel records and to remove the inaccurate statements about the borough from his website.

“This will potentially avoid unnecessary litigation and allow the ‘full disclosure’ that Mr. Miller has claimed he desires,” borough attorney Jill Dolan wrote on Oct. 7.

Some records were made public July 19 in separate releases from the borough and Miller. These releases came six days after Miller first received the documents from the borough for his review. Miller and the borough then agreed to release a 16-page matrix listing the 353 documents contained in Miller’s file, along with notes on each of the many items in the file which were either redacted or withheld altogether.

March 2008 entries may provide answers

The redactions and withheld information left many lingering questions, and new ones have since arisen. In addition to wanting to more fully examine the issue of whether Miller’s resignation spared him from being fired, Alaska Dispatch has been trying to answer new questions about Miller’s earlier work history as a part-time borough attorney.

Although Miller served the borough for seven years, his time there isn’t something he currently advertises. No mention of his career there — which spanned from 2002 to 2009 — appears among the accomplishments he lists in his campaign biography.

All of this — the March 2008 entries in Miller’s file, his efforts that same month to unseat the state’s GOP chair, the accusations he used borough equipment to engage in partisan activity, his desire to become a U.S. senator — weighs in favor of releasing more information to the public, according to Alaska Dispatch’s attorney.

“Anything in these records that reflects a violation of any laws, regulations or policies would be matters of legitimate public interest in the context of the campaign,” McKay said.

The list of records in the files raises questions about what appears to be some sort of internal borough review of Miller’s conduct at work.

Over the course of one week in March 2008, the disclosure file notes, the borough chose to place several e-mails, hand-written notes and other reports in Miller’s file. What those e-mails or notes might say is not reported in the disclosure file. But the entries about e-mails and notes marks a distinct departure from other material that appears to deal with more general matters like borough-wide notices about drug, alcohol and harassment policies, health plan information, time off, performance evaluations, employee awards and merit increases, etc.

The March notations began with a copy of an e-mail sent March 10 from the Law Offices of Joe Miller to borough attorney Jill Dolan. The exchanges show that Miller was on a call for 25 minutes on March 10 and that he gave Dolan advance notice that it was for a personal matter.

That was three days before a state GOP party convention in Anchorage. On March 12, the day before the convention, at 10:07 a.m., Miller sent an e-mail stating he would be in to work before lunch. Although the rest of the documents placed in Miller’s file within this same time frame have to date been kept out of public view, the index of items contained in Miller’s file indicates that on this same day — March 12 — something significant caught the borough’s attention.

The borough pulled lunch hour web activity reports for four employees and placed those reports, which cover a two-hour block of time from 11:30 a.m. to 1:30 p.m. on March 12, in Miller’s file. The reason remains unknown. At about 2:30 pm that same day, Dolan sent an e-mail out to three of Miller’s coworkers. Over the next two days statements from four employees, whose identities were withheld by the borough and Miller, were also entered into Miller’s file.

By March 14 hand-written notes and a memo from Dolan to Miller were added to the file. And on March 17 — the Monday after the GOP convention — Miller sent a two-page e-mail to Dolan. The contents of that e-mail have not been released.

“From what the Borough has already provided, together with the Dispatch’s reporting, the most logical conclusion is that something occurred involving alleged misuse of borough time, equipment or other public resources,” McKay said.

Palin and Miller’s failed coup

The March 2008 entries in Miller’s file coincide with one significant event in Miller’s life outside of work — that year’s state GOP convention and Miller’s growing political partnership with Palin. The convention was held Thursday through Saturday, March 13 through 15, at the Hotel Captain Cook in Anchorage. Miller was there with Palin on a quest to unseat party chair Randy Ruedrich.

The convention was full of tension and surprises. The state’s new governor, Sarah Palin, gave a keynote address focused on overthrowing the old and corrupt and ushering in rock-solid young visionaries, people ready to take over and ready for change. She had run her campaign on cleaning up the old boys’ network, fueled in no small part by the Justice Department’s growing probe into corruption in Alaska politics. Even her lieutenant governor, Sean Parnell, was swept up in the movement, launching an unsuccessful effort to dislodge Congressman Don Young, who was under federal investigation at the time, from office.

And Palin’s call for reform wasn’t over. She’d made trouble for Randy Ruedrich, the GOP party chair, once before and was ready to do it again. In 2003, when both of them worked at the state’s Oil and Gas Conservation Commission, she outed him for using his government office for partisan activities — a revelation that led to a $12,000 ethics fine for Ruedrich, the largest in state history. At the 2008 convention, Palin called for change within the party leadership, and news reports at the time show Miller, a regional GOP chair from Fairbanks, was loyal to the cause.

He mailed fliers March 7 encouraging delegates to put party vice chair Cathy Giessel in charge and pushed for a leader who would fully support Palin, according to a report in the Juneau Empire.

“We’re doing this so we can tell the public, ‘Look, we’re behind the public and its motivation to clean up government.’ That’s what this is all about, and to make sure the public understands that the Republican Party is a party of ethics and not corruption,” said Miller, according to another report about the coup, which ultimately failed.

Since the documents concerning Miller from 2008 have not been made public there is no way to know what relationship, if any, they have to Miller’s political aspirations.

But a former borough employee has told Alaska Dispatch that Miller did get caught using other employees’ computers to send out proxy votes in advance of the convention.

In his letter seeking access to more of Miller’s records, McKay told the borough if the documents the borough is keeping secret do in fact relate to the party activity, “the public’s overriding interest in disclosure should be obvious.”

Privacy, privilege and the public’s right to know

McKay called the borough’s failure to release many of the records “unnecessarily restrictive” and said the borough is misinterpreting the exception in public records law for personnel records. Some of the material the borough withheld or redacted had already been distributed to others — an e-mail, for instance, that the mayor had been copied on.

“The public has a legitimate interest in information about the circumstances surrounding the termination of Mr. Miller’s employment relationship with the Borough, even if the information is included in his personnel records, and nowhere else,” McKay wrote.

The Supreme Court has said the personnel exception is to be construed narrowly “to include only information which reveals the details of an individual’s personal life,” McKay said.

McKay noted that Miller agreed the borough could release his records if officials agreed to waive attorney-client privilege regarding Miller’s employment. “A cynic might suggest that Mr. Miller was intentionally imposing this condition knowing that it is beyond what could reasonably be expected or demanded, and would never be acceptable to his former client,” McKay wrote.

In fact, the borough has been trying to get Miller to give it permission to release his personnel records since mid-July, according to a letter sent Thursday from the borough attornery to Miller’s attorney.

Now, Alaska Dispatch wants the borough to release the records immediately or notify Miller the records will be handed over unless he files a lawsuit to try to stop their release.

The borough has given Miller until Monday to respond; however, officials didn’t say what the consequences would be if he failed to do so, or what action they would take.

“The Alaska public is being asked to consider electing Mr. Miller as its next U.S. Senator,” McKay wrote. “The Borough should see to it that it is not the cause of unnecessary secrecy that deprives the public of the full disclosure it deserves with respect to Mr. Miller’s Borough employment.”

Contact Jill Burke at jill(at)alaskadispatch.com ; Patti Epler at patti(at)alaskadispatch.com ; and Joshua Saul at jsaul(at)alaskadispatch.com .