Sorry,but I had to just rub it in a little and say I told you so!!
BTW, I am not an attorney,but hopefully will be one in a few years!!
Link to report that exonerates Palin
2. Affirmative Acts of Others and Governor Palin's Responsibility For Them.
A. The Branchflower Report Misinterpreted and Misapplied the Ethics Act in Concluding that Governor Palin Abused Her Power in Violation of the Law Through Her "Inaction."
Having determined that the few affirmative actions described above by the Governor did not violate the Ethics Act, the next question to be addressed is whether any violation of the Ethics Act can be attributed to the Governor for failing to curtail the acts of others. Suggestion has been made in the Branchflower Report that the acts of others, which the Branchflower Report asserts the Governor knew or should have known about (citing AS 39.25.900), make out a case for violation of AS 39.52.11O(a). AS 39.52.110(a) is a statute entitled "Scope of code." The Branchflower Report concludes that because of the Governor's inaction in failing to stop certain conduct, she has violated the section entitled "Scope of Code."
Reliance upon AS 39.52.110(a) as a basis for concluding the Governor violated the Ethics Act is legally flawed under any set of facts. It ignores basic statutory construction. The purpose Section 110 was intended to serve, when read in accordance with its legislative history, and in pari materia with the other sections of the Act, was to provide interpretive insight into the construction of other sections of the Act which set forth the elements that can form the basis for a substantive accusation under the Act.
Statutes are structured and organized into various parts, which serve as categories for provisions that are similar in nature or have some logical relationship to other provisions in the same category or seeking to regulate the same kinds of conduct.25 The substantive sections of a statutory scheme set forth the rights, powers, privileges and immunities ( or prohibitions) or confer power? It is common that related statutes which are part of the same act or chapter contain other provisions that state more general legislative intent or are interpretation aids.
Preambles to statutes are not considered substantive but are explanatory and therefore do not determine rights, create duties or confer power.21 A preamble to an act, such as the Ethics Act, does not enlarge the scope or effect of its substantive parts and is limited to being used as a guide in construing or clarifying other ambiguous sections or stating overall legislative intent.28 Section 11O(a) is clearly not substantive and may not be properly used to provide the basis for determining rights, creating duties or enlarging the scope of the Act's substantive parts. The non-substantive provisions, such as Section 11O(a) are there to provide context, reasons for a legislative bill's enactment, and state policy. Specifically, Section 11O(a) is in the Ethics Act is, by its terms, to describe the intended scope of the legislation.
The Ethics Act is divided into various categories, each represented by a different article. See AS 39.52.010 - .965. Article I consists of a single section that communicates the Act's statement of policy as its title, "Declaration Policy" states. AS 39.52.010. Article 2, which is entitled "Code of Ethics" begins with Section 110(a). Section 110 is the very first section in the code and, as its title suggests, is intended to provide a scope explanatory note, containing explanation of legislative intent and purpose, as to how succeeding substantive prohibitions and provisions are to be interpreted.
Though the section may contain some mixed language suggesting a more substantive role for the provision, the section by section legislative history removes any doubt that Section 110 was not intended to define a substantive prohibition. The Ethics Act was before the legislature as SB 391. The sponsor's sectional analysis to Section 110 stated the following:
Sec. 39.52.110. Scope of Code. To clarify the intent behind .the code of ethics, this section describes its scope. One of the major criticisms heard is that it is difficult to get qualified people to serve in public office. This section of the bill makes clear that the legislature, in enacting the code of ethics, recognizes in a representative democracy, which draws its public officers from society, that those officers cannot and should not be without personal or financial stake in Alaska, so long as those private interests do not interfere with the full and faithful discharge for the officer's public responsibilities. Additionally, this section clarifies the intent to distinguish between those minor and insignificant conflicts that are unavoidable in our free society and those conflicts that are substantial and material and must be prohibited. Sectional Analysis ofC.S.S.S.S.B 391 (SA) am, 14th Leg. 2nd Sess., at 1 (1986) (emphasis added).
Thereafter, the substantive provisions of the Code of Ethics itself proceed, wherein the elements of eight specific violations are described in the succeeding sections. The sectional analysis of Section 110 describes its relationship to the rest of the Code by stating that, though the Code is to be interpreted consistent with Section 110, the individual prohibitions beginning with AS 39.52.120 and ending with AS 39.52.190 are the "stem prohibitions on conduct.,,29 The sectional analyses that accompany the legislation describe in detail the eight types of ethical violations in the Act and does not reference AS 39.52.110 among them.
The Branchflower Report relies exclusively on Section IIO(a) to justify a substantive violation of the Ethics Act on the basis of inaction by the Govemor30 The legal analysis of the Branchflower Report finding that the Governor violated AS 39.52.I10(a) is flawed since as a matter of law, a public official or employee cannot directly violate Section 110( a). A claim of violation (an accusation in Personnel Board parlan~e) must be based instead upon one of the eight specific prohibitions passed by the legislature. The actus reus required for a violation cannot be based upon explanatory legislative intent provisions.
SBD