Alaska Employment Law

At the November 5th meeting of the Employment Law Section of the Alaska Bar Association, the members heard from Tim Petumenos (Independent Counsel for the Personnel Board), Thomas Van Flein (Gov. Palin’s personal counsel), Jeff Feldman (counsel for ex-Public Safety Commissioner Walter Monegan), and John McKay (counsel for Alaska media on Public Records Act issues).  The Bar Association will make available a tape-recording of the meeting.  

The discussion centered on three topics: the scope of the Alaska Ethics Act; whether Palin’s right to dismiss a Commissioner such as Monegan is unlimited; and whether Monegan has a right to a name-clearing hearing. 

Today I’ll recap the discussion on Monegan’s Due Process liberty interest.

Monegan claimed that Gov. Palin had impaired his constitutionally-protected liberty interest in his good name (through her later comments that he had a “rogue mentality” and had committed acts of “outright insubordination”), and asked the Personnel Board to hold a name-clearing hearing. (Here’s Monegan’s brief, filed by Feldman and Alex Bryner.)  Palin did not brief the liberty issue, according to Van Flein.

Petumenos decided that the Personnel Board’s jurisdiction did not extend to that issue, and refused Monegan’s request to find that he had exhausted any administrative remedies. (Independent Counsel Report at pp. 2-3 & n.3)  Petumenos did make a limited finding that Monegan hadn’t been insubordinate to Palin, but didn’t resolve Palin’s revised claim that Monegan had disobeyed directives from her Office of Management and Budget.  (Report at p. 53)

At the ELS meeting, Feldman said that Monegan didn’t want his job back, but still wanted to clear his name.  He asked what forum Monegan could now approach for that hearing, given the Board’s refusal to consider the claim.  In response, Van Flein suggested that Monegan’s remedies were limited to a defamation claim.  Van Flein also contended that Palin’s name was besmirched during the campaign, and asked rhetorically whether Palin, too, was entitled to a name-clearing hearing. 

Comment:  1) To show that he has suffered any impairment of a liberty interest, Monegan must prove “stigma-plus.”  Paul v. Davis, 424 U.S.  693 (1976).  On that score, the Ninth Circuit just yesterday stated: 

We hold that where a state statute creates both a stigma and a tangible burden on an individual’s ability to obtain a right or status recognized by state law, an individual’s liberty interest has been violated.

Humphries v. County of Los Angeles, 2008 WL _______ (9th Cir. Nov. 5, 2008).

Assuing that characterizing an employee (especially a law enforcement officer) as “insubordinate” is stigmatizing, what is Monegan’s “tangible burden” arising from Palin’s alleged defamatory comments?  Monegan agrees that Palin offered him the job of head of the Alcoholic Beverage Control Board (an agency within his former Department).  If the tangible burden must be a prospective one (post-termination) and must be one created by statute, I’m not sure that Monegan can satisfy the “plus” part of the test.  If the State were statutorily required to report Monegan’s dismissal to the Alaska Police Standards Council or similar occupational licensing agency, the Humphries opinion might help him.

2) On the suggestion that Monegan’s remedy is a defamation suit, note that Alaska Statute 09.50.250(3) bars defamation claims against the state and state officials. 

Other materials: Here are the Due Process materials that Tom Daniel prepared for the Employment Law Section’s March 2008 meeting.