I think we are a little quick to celebrate here and are failing to raise a critical eye to Branchflower's report.
Over and over again in his report, Branchflower declares that Monegan's failure to fire Wooten was part of the reason for his firing, but not the sole reason.
One has to wonder why this is even in the report in the first place. Before his explanation of how he came to this conclusion, Branchflower admits it has no place in this report...
In light of this constitutional and statutory authority, it is clear that Governor Palin could fire Commissioner Walt Monegan at will, for almost any reason, or no reason at all.
While that is true, my charge has not been to question her authority, but to "...investigate the circumstances and events surrounding the termination of former Public Safety Commissioner Walt Monegan and potential abuses of power and/or improper actions by members of the executive branch."
So if that is the case, what place does "Finding Two" have in this report? Surely if your charge is not to question her authority and her authority includes firing certain officials at her pleasure, there is no need to even discuss whether the termination of Monegan was allowed under Alaska law.
But what is most troubling is the explanation he gives for "Finding Two."
Before an analytical discussion of Branchflowers explanation, a little jaunt down the path of common sense. Let's say you are an employer and you wanted to fire someone. However, for whatever reason you don't have the ammunition to fire that person. There could be several reasons. Union protections require a documented history, laws prevent your prejudices, political considerations require a good explanation.
So what do you do in that situation? Well, you build a record. You document every little slip up. Any employment discrimination or labor attorney can tell you that is what employers do. They cover their tracks. And generally, the way the fact finding works in this situation is asking whether the stated reasons for a termination are "pretextual." In other words, you ask 'is this a bunch of bullshit concocted after the fact, or is this really the reason the person was fired.
So that is exactly what one would expect Branchflower to do if he were really trying to determine whether Palin really had any other reason to fire Monegan other than Wooten. And that is where Branchflower fails, and fails miserably.
Branchflower's "Finding Two," according to his own explanation, is based on three pieces of evidence. The first is the notes of Alaskan OMB director Karen Rehfeld...
"Very nice guy-pleasant interaction w/him & his staff-he wasn't a good listener-wanted to do what he wanted to do- chafed at the constraints or process of state government." Also, "last fall DPS posted a trooper plan on its website-good to do-no vetting-not part of gov's overall plan or vision," DPS added $ in budget-soon after that Monegan came up w/another idea- "vertical prosecution" plan for sex.assault cases-he'd never talked to OMB about getting that into a federal request, but he'd gone to DC-e-mails-RR." "crime lab-continues to be an issue b/c DPS doesn't listen very well," "Dec 10 budget rolled out-4 days later Walt calls a mtg. to talk about his new idea-the sexual assault initiative-extra $20M. that hadn't been req'd during budget process,"
Let's be generous and call this recitation of facts 'unartful.' Where are the dates that go with these various notes? What is the context? Obviously the first note is early on in Monegan's tenure as it deals with introductory impressions. But the first phrase of the next note is telling. "Last fall." Well Palin's first day in office was December 4, 2006, so this reference must be to fall 2007, which means that all the subsequent notes were written in winter 2007-08 at the earliest, well after the Monegan-Wooten issues were boiling under the surface in Alaskan politics.
The second piece of evidence is the notes of Commissioner of Administration Annette Kreitzer...
"Walt complained to Tibbles that Annette wasn't going to get a K [contract] —too hard nosed in mtgs-deal would be eluded b/c of 1/4%-," "Mon. working behind the scenes on union K-direct contact w John Cyr [Business Manager for PSEA Union], Cyr talking about pushing for more $ for pub. Safety," "legis. Hearing on rural justiceMonegan + Cyr testified together-trying to neg. the PSEA K @ the hearing-Walt had his own agenda-more troopers +more $," "Annette was a brick wall-Walt didn't have authority to make the union K," "Monegan mentioned wanting more troopers @ cabinet megs.-she wondered why he didn't get vacancies filled."
Well we know from other parts of the report that the union negotiations were conducted in early 2008. Again, long after the relationship between the Palin's and Monegan began to sour.
Before I get to the third piece of evidence, a little aside about another role that a 'fact finder' is supposed to perform, evaluating the credibility of the witnesses. What is another way to describe Rehfeld and Kreitzer? Another way to describe them is "two of the seven Palin aides who sought to protect her by refusing to honor the legislature's subpoenas."
Last I heard, all seven agreed to give their sworn testimony, but that was only last weekend, and other than Todd Palin, I have not heard anything about whether Branchflower ever got to talk to anyone. Since now corroborating evidence regarding discussions with these individuals in contained in this portion of the report, I think it is safe to say he did not have a chance to discuss these 'notes' with Rehfeld and Kreitzer, which raises the question: how and why does Branchflower find these notes so persuasive without discussing them with the author? It's truly laughable. No attorney worth his salt would come to such a conclusion.
So now, onto the third piece of evidence cited by Branchflower, and this is most astonishing...
comments in the press linked to Governor Palin have claimed that there were work-related reasons that had nothing to do with Trooper Wooten to explain why Commissioner Monegan was fired. For example, in an Anchorage Daily News article published on September 16, 2008, captioned "Palin accuses Monegan of insubordination"
Seriously Mr. Branchflower? Media reports and the notes of two of Palin's lackeys? This is your evidence? Well actually, there is a fourth piece of evidence cited in the report, and in all honesty, it is hilarious, but it still relates to Wooten...
Finally, the record contains evidence that Governor Palin lost confidence in Commissioner Monegan when, on the eve of the 2008 annual Police Memorial Day ceremony, he sent her a photograph to sign and present at that event, but failed to realize it was actually a photograph of Trooper Michael Wooten.
My guess? My guess is Monegan saw the writing on the wall and pulled of a fantastic bit of snark. But you'll note zero investigation into whether this is really an event that caused 'lost confidence.' Branchflower simply accepts this explanation.
Branchflower threw us a bone by finding what was glaringly obvious, Palin abused her power. But not only does he venture into areas he doesn't belong seemingly for the sole purpose of 'putting lipstick on a pig,' but he does so in a way that is a flat out embarrassment to the legal profession.
Yes, Palin had a right to terminate Monegan for any reason, but when looking for that reason, Branchflower has a duty to rely on credible evidence that actually supports his conclusion, and the evidence he presents here could just as easily be pretextual evidence as evidence of Palin's alleged 'other' reasons for terminating Monegan. While I have not had time to read the entire report, if this is all Branchflower has, there is simply insufficient evidence in the record to determine whether these are actual reasons, or simply bullshit reasons made up after the fact.