[00:00:04] Speaker 05:
Our next case on calendar is Ward versus State of Alaska.

[00:00:08] Speaker 05:
And I think we had some questions about whether the attorneys were here.

[00:00:11] Speaker 05:
So it's 22-70141 and 70142.

[00:00:17] Speaker 05:
But we'll wait a moment and make sure that everyone is here.

[00:00:48] Speaker 05:
Looks like everyone is here.

[00:00:49] Speaker 05:
Is everyone here who's supposed to be here?

[00:00:52] Speaker 05:
As far as I know you are.

[00:00:54] Speaker 05:
OK.

[00:00:54] Speaker 05:
Great.

[00:00:54] Speaker 05:
Then we're ready whenever you are.

[00:00:58] Speaker 02:
May it please the court, I am Lenore Garen, representing the petitioner, Margaret Ward, who's seated next to my co-counsel, Gary Gilbert.

[00:01:07] Speaker 02:
And I'd like to reserve five minutes for rebuttal.

[00:01:11] Speaker 02:
Margaret Ward supported the sexual harassment claim of her subordinate.

[00:01:18] Speaker 02:
and opposed the way in which it was being handled.

[00:01:22] Speaker 02:
And she was fired in retaliation.

[00:01:24] Speaker 02:
Actually, she was retaliated against before she was fired, and then she was fired.

[00:01:28] Speaker 02:
And she brought an EEO complaint.

[00:01:31] Speaker 02:
The state purports to have investigated her and concluded that she misused state resources in her position.

[00:01:41] Speaker 02:
But this is pretext.

[00:01:46] Speaker 02:
At the hearing, the state relied on evidence that they tell us that they permitted to be destroyed.

[00:01:54] Speaker 02:
And thus, having failed to present admissible evidence, they have failed in their duty under Texas Department of Community Affairs versus Burdine, which requires the respondent to produce admissible evidence supporting the legitimate nondiscriminatory reason.

[00:02:15] Speaker 02:
The destruction of the evidence, we think, is strong evidence of pretext.

[00:02:19] Speaker 02:
The trial judge sanctioned the state for this evidence by saying that she would bar any testimony about any documents that were missing or the reports that purported to summarize these documents.

[00:02:34] Speaker 02:
But then she did not adhere to her own sanction, the administrative law judge.

[00:02:39] Speaker 02:
She did not adhere to her own sanction and instead permitted testimony that the decision-maker relied on this investigation and it showed that she'd misused her position and resources.

[00:02:50] Speaker 02:
This failure to the sanction, in our view, was itself inadequate, but the failure to adhere to the sanction was both an abuse of discretion and, in our view, reversible error.

[00:03:02] Speaker 05:
There exists... When you say that the judge, the ALJ, allowed evidence about the investigation, are you referring to the Ryan affidavit?

[00:03:12] Speaker 02:
Not only to the Ryan affidavit, but to his testimony when he was examined.

[00:03:16] Speaker 02:
He said he had heard some rumors, so he put good people on it and they investigated it.

[00:03:22] Speaker 02:
And on the strength of the investigation, he approved her termination.

[00:03:25] Speaker 05:
And how do we know that that's the same investigation that was excluded?

[00:03:30] Speaker 02:
It's clear from the context of the colloquy, first of all, and secondly, we have in evidence the sexual harassment investigation, which does not show a misuse of state resources and does not suggest that Ms.

[00:03:49] Speaker 02:
Ward be terminated, but rather commands that she receive training in the handling of sexual harassment.

[00:03:57] Speaker 02:
So that's how we know that the investigation referred to is the investigation that is referenced in the April 22 letter terminating her and also the memorandum that preceded it on the same day, which purports to state what it is that she did that was a misuse of resources, as to which, in fact, there is no credible evidence.

[00:04:28] Speaker 05:
So you'd like the ALJ to have drawn an inference about the content of the reports because the exhibits were not there anymore.

[00:04:39] Speaker 05:
you or someone, I don't know who it was back then, was counsel for Ms.

[00:04:44] Speaker 05:
Ward, were able to see the reports, because the reports themselves still existed.

[00:04:48] Speaker 02:
They received, there were two reports in question.

[00:04:51] Speaker 02:
One was the report of the entity that did the investigation, the Zaruba Company, and we refer to that as the Zaruba Report.

[00:04:59] Speaker 02:
That was produced the day before the hearing.

[00:05:02] Speaker 02:
So there was no opportunity to look at it, but there was no opportunity to investigate what it purported to summarize.

[00:05:13] Speaker 02:
They couldn't bring in representatives of RUBA and say, did this really happen?

[00:05:17] Speaker 02:
How do you know?

[00:05:19] Speaker 05:
It seems like probably, I mean, it's possible it wasn't, but the most likely thing is that the report

[00:05:26] Speaker 05:
was consistent with whatever its exhibits were.

[00:05:28] Speaker 05:
It's pretty unlikely that the report says there's no evidence and then the exhibits were entirely evidence or something that totally- Right, no, right, but we have- Given that they had the report, I mean, you could have used the report, but you just said there was a discussion, what should we do?

[00:05:42] Speaker 05:
And you said we'd rather not have it.

[00:05:44] Speaker 05:
So doesn't that suggest that the report was not helpful to you?

[00:05:49] Speaker 02:
No, Your Honor, it does not.

[00:05:51] Speaker 02:
It suggests that we had no way of disputing what was in the report, because at that time... You would have only wanted to dispute if it was not helpful to you.

[00:06:00] Speaker 02:
I'm sorry.

[00:06:00] Speaker 05:
I'm thinking that the report was probably not helpful to your client.

[00:06:05] Speaker 02:
No, the report was not helpful, but there was no one whom we could then interrogate and say, how do you know this?

[00:06:13] Speaker 02:
What evidence do you have?

[00:06:14] Speaker 02:
I'll give you a good example of that.

[00:06:16] Speaker 02:
One of the things listed in the privilege log that was not available is a Zeruba interview report of their interview with Leola Rutherford, who is considered to be the source of the information that Margaret Ward asked how to purge the contents of the computer.

[00:06:40] Speaker 02:
Well, it would have been nice to be able to see that interview report.

[00:06:44] Speaker 02:
And you would think that the government would have preserved that interview report to introduce into evidence at a trial in which they claim that that's how they know Margaret Ward purged the computer because she asked Leola Rutherford how.

[00:06:57] Speaker 02:
But we can't ask, we can't see that interview report because it's gone.

[00:07:02] Speaker 02:
We don't know what she actually told Zaruba.

[00:07:05] Speaker 05:
And what's the best story you could give about purging the computer?

[00:07:09] Speaker 05:
What would you like us to think happened with the computer?

[00:07:12] Speaker 02:
Myself being not exactly an expert on the subject, I would be speculating.

[00:07:20] Speaker 02:
That said, the computer may have been purged by someone who was doing

[00:07:26] Speaker 02:
other work on the computer.

[00:07:28] Speaker 02:
Mr. Helm, the computer expert who testified, said it's not obvious how to do it and as far as he knows, and he apparently asked his colleague as well according to the report, no one told either Margaret Ward or Lydia Jones how to purge the computer.

[00:07:44] Speaker 02:
I would point out that there were backup tapes

[00:07:47] Speaker 02:
And Mr. Helms said he could recover stuff from the backup tapes, but nothing that was on the backup tapes was ever produced by the state, which implies, at least to me, that there was nothing there that would have showed a misuse of government resources.

[00:08:07] Speaker 02:
And actually, at this point, I want to point out the famous mailing list, which is also referenced as evidence of

[00:08:16] Speaker 02:
When you look at the mailing list, when you look at it closely, which is hard because it's many, many pages, you discover that on this mailing list, supposedly prepared for Lieutenant Governor Coghill's election campaign, the Governor Hickel himself

[00:08:34] Speaker 02:
several of Governor Hickle's relatives, several of Governor Hickle's business reports, Cheryl Frasca, Mrs. Frasca, who was the Deputy Chief of Staff to Governor Hickle.

[00:08:46] Speaker 02:
Though it is not possible to have an honest belief that that document was used to prepare, to solicit support for Lieutenant Governor Coghill, if Governor Hickle,

[00:09:03] Speaker 02:
his punitive opponent is on that list.

[00:09:07] Speaker 02:
You can't have an honest belief of that.

[00:09:10] Speaker 03:
Unless the list was copied from something else.

[00:09:13] Speaker 02:
Well, the testimony from Wanda Thagard was that this was the list that she prepared.

[00:09:20] Speaker 02:
And she then made a disc copy of the list.

[00:09:24] Speaker 02:
And she says this is the list that she thought was suspicious because among the names that Ms.

[00:09:30] Speaker 02:
Ward suggested be added to this list,

[00:09:34] Speaker 02:
were bingo parlor operators, whom she didn't think Governor Hickle would want to communicate with, although most of us know that in a democracy, politicians try to communicate with pretty much everybody.

[00:09:47] Speaker 02:
But she says this is the list that she prepared, and the names on it were the ones, or at least some of them, were the ones that Margaret Ward had her add to the list.

[00:09:56] Speaker 02:
And therefore, we do know that

[00:09:59] Speaker 02:
We don't know that it was copied from something else.

[00:10:02] Speaker 02:
This is the list that supposedly was prepared at Margaret Ward's direction.

[00:10:07] Speaker 02:
That's the only testimony about the list.

[00:10:10] Speaker 05:
And then how do you explain the spelling mistake on the mailing that was received?

[00:10:16] Speaker 02:
We don't actually explain it, but we do know that as early as the fall of 1990, first of all, it's not in evidence.

[00:10:24] Speaker 02:
We don't know what was in the envelope.

[00:10:26] Speaker 02:
We don't know that it was a fundraiser for Governor Coghill because that's part of the evidence that the state allowed to be destroyed.

[00:10:34] Speaker 02:
But secondly, we know that it's a typo.

[00:10:39] Speaker 02:
We know that the decision maker, Mr. Ryan, knew about that mistake as early as September 1993.

[00:10:47] Speaker 02:
But it concerned him enough, supposedly, to be part of the reason why he asked for investigation.

[00:10:54] Speaker 02:
He didn't rely on it.

[00:10:56] Speaker 02:
He said he didn't believe that the rumors were sufficient to rely upon.

[00:11:03] Speaker 02:
In fact, he specifically disclaimed relying on rumors to terminate Ms.

[00:11:08] Speaker 02:
Ward.

[00:11:10] Speaker 02:
It's a typographical error.

[00:11:11] Speaker 05:
It is entirely within the- To avoid violating GERA, GERA, I don't know how we're gonna say the statute.

[00:11:20] Speaker 05:
They don't have to actually have evidence of misuse of government resources.

[00:11:23] Speaker 05:
They only need to have believed it.

[00:11:26] Speaker 02:
I am so glad you said that.

[00:11:29] Speaker 02:
It is true that what is required is honest belief.

[00:11:32] Speaker 02:
But this is an action not against Mr. Ryan personally, but against the state of Alaska.

[00:11:38] Speaker 02:
If Mr. Ryan's honest belief was based on evidence that was, he never testified that he even read the investigative report.

[00:11:47] Speaker 05:
Well, you wouldn't have let him testify to that, right?

[00:11:50] Speaker 05:
Or, I don't know.

[00:11:51] Speaker 02:
Well, he testified that he relied on the report, so presumably he could have testified that he'd read it, but whether or not he did,

[00:12:00] Speaker 02:
If he relied on the investigation, and the investigation, in fact, had no solid evidence of what is claimed, then basically he's a cat's paw.

[00:12:15] Speaker 02:
And the state has still not had an honest belief in Ms.

[00:12:20] Speaker 02:
Ward's.

[00:12:23] Speaker 04:
That would be true if the investigators, who I guess are agents of the state,

[00:12:29] Speaker 04:
were motivated by an improper purpose, but if they simply did a bad investigation or an erroneous investigation and he relied on the erroneous investigation, that doesn't get you to a violation.

[00:12:42] Speaker 02:
We don't actually know because he said he was told by the people whom he put in charge that this is what the investigation was told.

[00:12:49] Speaker 02:
What are you saying we don't know?

[00:12:50] Speaker 02:
We don't know whether it was an incompetent investigation or it just produced nothing because he didn't say- My point is that even assuming that it was, that doesn't get you a violation of the statute.

[00:13:04] Speaker 02:
I understand that.

[00:13:08] Speaker 02:
What we don't know, but if he was told that the investigation showed something that it did not in fact show, then he was lied to.

[00:13:16] Speaker 02:
He's a cat's paw and the state does not have an honest belief.

[00:13:19] Speaker 02:
And we can't tell because the state destroyed the evidence.

[00:13:23] Speaker 02:
He would be who's cat's paw.

[00:13:25] Speaker 02:
He would, whoever told him that this is what the investigation showed.

[00:13:29] Speaker 03:
The state is a fairly amorphous.

[00:13:30] Speaker 02:
Yeah, well, he would be the catspaw of whoever informed.

[00:13:35] Speaker 05:
Can you let Judge Babi ask a question?

[00:13:36] Speaker 02:
I'm sorry, I'm sorry.

[00:13:39] Speaker 03:
If you're alleging a catspaw, it has to be the catspaw of somebody, not something, but it has to be somebody.

[00:13:46] Speaker 03:
That suggests a very, very extensive conspiracy.

[00:13:49] Speaker 03:
This man was the chief of staff to the governor.

[00:13:51] Speaker 03:
Okay, let me finish the question.

[00:13:53] Speaker 03:
That means that he has to be the, it can't just be that he's the cat's paw of the state of Alaska.

[00:14:00] Speaker 03:
The state of Alaska here is represented by individuals starting with the governor.

[00:14:04] Speaker 03:
And this man is very, very close to the governor and wields an enormous amount of power.

[00:14:09] Speaker 03:
So if he's being manipulated by someone, who's he being manipulated by?

[00:14:13] Speaker 02:
My assumption is that he is being manipulated by whoever told him what the investigation shows.

[00:14:19] Speaker 02:
If in fact he truly believed that.

[00:14:21] Speaker 03:
This could be some lower level person.

[00:14:25] Speaker 02:
Well, no.

[00:14:26] Speaker 02:
The two people who were in charge here were Mr. Malnick and Mr. Nisic, I think.

[00:14:33] Speaker 02:
Mr. Nisic was a nonpartisan employee, but Mr. Malnick, I believe, was not.

[00:14:46] Speaker 02:
But it can only be an honest belief if whoever told him also honestly believed it.

[00:14:52] Speaker 02:
And we have no way of testing that because we have no way.

[00:14:55] Speaker 03:
This is an extraordinary story of a conspiracy that doesn't seem to have any basis in fact.

[00:15:00] Speaker 02:
No, Your Honor, it's not a fact.

[00:15:01] Speaker 03:
I see lots of inferences and lots of things that we could imagine, but I don't see any evidence for any of this.

[00:15:07] Speaker 02:
Your Honor, we're not alleging a conspiracy, but we are saying there is no way to demonstrate that he had an honest belief.

[00:15:16] Speaker 02:
We cannot ignore the fact that we have no way of knowing what the investigation showed.

[00:15:25] Speaker 02:
It may have contained nothing other than gossip.

[00:15:28] Speaker 05:
You already acknowledged, I think, in response to my earlier question, that the report was not helpful to your client.

[00:15:34] Speaker 05:
So if he read it and he believed it, why isn't that an honest belief?

[00:15:37] Speaker 02:
Well, for one thing, we don't think he read it.

[00:15:40] Speaker 02:
He testified he was told.

[00:15:41] Speaker 02:
He got a summary of it and he believed it then.

[00:15:43] Speaker 02:
It's not an honest belief if the people who told him what it showed did not also honestly believe it.

[00:15:49] Speaker 05:
Because it was not helpful to your client.

[00:15:51] Speaker 05:
So if we can take as given that it was not helpful to your client, then how do we get to him having a belief

[00:15:57] Speaker 05:
that's wrong if all he believes is not helpful to your client?

[00:16:03] Speaker 02:
If he believed it because he was told by other employees of the state that it was reliable, then it is not an honest belief.

[00:16:16] Speaker 02:
And we have no way of testing whether it's an honest belief because the state intentionally prevented

[00:16:27] Speaker 02:
Ward and her counsel from seeing this, it was listed.

[00:16:30] Speaker 02:
First of all, Ward was never interviewed in the investigation, which itself is a little suspicious, but we can't really take much from that.

[00:16:37] Speaker 02:
But the state had this on a privilege log stating that it was privileged information that they couldn't reveal.

[00:16:45] Speaker 02:
And then they claimed they never took possession of the evidence, and they allowed it to be destroyed, interestingly, in the same year the privilege log was created.

[00:16:57] Speaker 02:
and even after having an order from the

[00:17:02] Speaker 02:
administrative judge to produce the evidence that was requested in discovery, which included the Zeruba report and the 30 documents and 30 tangible objects, they first told the trial judge they had complied with her order, even though, and did not mention that they had not attached the exhibits until counsel brought it up.

[00:17:24] Speaker 02:
And only literally the morning of the trial did they actually admit to the Birch Horton report, which

[00:17:31] Speaker 02:
summarized the legal basis for the Zaruba report.

[00:17:36] Speaker 03:
This is— In all of the evidence that's been amassed here on one side or the other, the one thing that seems to jump out from the page is the press conference that your client holds.

[00:17:48] Speaker 03:
This is a public document.

[00:17:51] Speaker 03:
It doesn't require anybody to tell somebody else something else.

[00:17:54] Speaker 03:
There's no hearsay involved.

[00:17:56] Speaker 03:
There's no back reports.

[00:17:57] Speaker 03:
There's no destruction of evidence.

[00:17:59] Speaker 03:
So how do we get around this very, very obvious, what appears from the page to leap out as an extremely disloyal set of statements from Governor Hickles' Anchorage head?

[00:18:11] Speaker 02:
It was certainly an inadvisable thing to do, but Mr. Ryan testified explicitly that that is not the reason why he terminated Ms.

[00:18:20] Speaker 02:
Ward.

[00:18:21] Speaker 02:
He said, I should have told her to go home or go away, but I didn't.

[00:18:27] Speaker 02:
If he testified that that is not what he relied on, that cannot be what he relied on to terminate Ms.

[00:18:33] Speaker 02:
Ward.

[00:18:36] Speaker 05:
If you want to save time for rebuttal, I think we better let you stop and we'll hear from the other side.

[00:18:39] Speaker 05:
Okay, thank you.

[00:18:47] Speaker 00:
All right.

[00:18:48] Speaker 00:
Good morning, afternoon, wherever we are.

[00:18:51] Speaker 00:
May it please the court, my name's Robert Kutchin, here representing the state of Alaska.

[00:18:55] Speaker 00:
I plan to talk for 10 minutes and then I'll turn it over to council for the commission.

[00:18:59] Speaker 00:
This is a cross petition, so Ward and the state both raised some issues in a second.

[00:19:03] Speaker 00:
I'll turn to Ward's petition and focus almost all my time there, hopefully.

[00:19:07] Speaker 00:
But I first want to know two things briefly about the state's petition first.

[00:19:11] Speaker 00:
The parties now agree that the monetary discovery sanctions against the state should be vacated under sovereign immunity analysis, similar to the one in Plaskett v. Wormuth.

[00:19:20] Speaker 00:
Unless I get questions about that, I'll let the parties' agreements speak for itself and rest on the briefing.

[00:19:26] Speaker 00:
Second, the state's position is that sovereign immunity bars the current version of Ward's claim.

[00:19:31] Speaker 00:
for the reasons explained in the briefing, but the state recognizes that a more straightforward way to resolve the case might be to affirm the Commission's decision on the merits.

[00:19:40] Speaker 00:
So in light of the questions that have been asked, I'll just jump into that and we can turn to sovereign immunity later if there are questions.

[00:19:48] Speaker 00:
So turning to Ward's petition and the merits, the agency has now issued a straightforward decision concluding that when the state terminated Ward, it did not violate Gara by retaliating against her for engaging in protected activity, rather it fired Ward for misusing state resources and political disloyalty.

[00:20:05] Speaker 00:
To show that that finding is supported by substantial evidence, I want to work through three issues.

[00:20:11] Speaker 00:
First, I'll briefly touch on the discovery dispute, because it's related to the scope of the record.

[00:20:16] Speaker 00:
And then I'll turn to the evidence and highlight some of the evidence supporting the commission's decision.

[00:20:20] Speaker 00:
And then I briefly want to address the fact that there's very little evidence supporting Ward's theory of, as Judge Bybee called it, a potential conspiracy.

[00:20:30] Speaker 00:
So the point I want to make in the next few minutes is that there's a lot of different evidence supporting the Commission's decision.

[00:20:36] Speaker 00:
It's not just relying on one single document or something.

[00:20:40] Speaker 00:
And Ward seems to recognize this, which brings me to my first point, the discovery dispute.

[00:20:46] Speaker 00:
Ward's correct appraisal about the weakness of her evidentiary argument seems to explain why she's trying so hard to leverage the discovery dispute to hide evidence from the court that was before the Commission.

[00:20:58] Speaker 00:
The state ward and the commission all read the reports that were excluded and from the ALJ's characterization of them.

[00:21:04] Speaker 00:
We know that they more or less supported the state's position that decision makers believed Ward had been disloyal politically and had misused state resources.

[00:21:14] Speaker 00:
So by asking for an adverse inference to the contrary, Ward is knowingly asking the court to suppress the truth about these documents.

[00:21:22] Speaker 00:
But beyond that, her argument fails under the deferential abuse of discretion standard.

[00:21:27] Speaker 00:
She hasn't pointed to a single case involving similar relief under similar circumstances, and as the Commission's findings show, the state did not act in bad faith during the discovery dispute.

[00:21:38] Speaker 00:
In this situation, the court should not ignore the merits of the case and resolve this based on a discovery dispute.

[00:21:45] Speaker 00:
The upshot is that the court should just review all of the evidence that was before the commission and decide whether or not its findings are supported by substantial evidence.

[00:21:53] Speaker 05:
So I understand your arguments that the ALJ had discretion about what should be done about

[00:22:00] Speaker 05:
this evidence not existing anymore and that we should defer to that and why it should be upheld.

[00:22:04] Speaker 05:
But I'm confused about whether you're still also asserting that there was no duty to preserve these exhibits in the first place.

[00:22:14] Speaker 00:
The state's position is that those were accidentally destroyed.

[00:22:19] Speaker 00:
It may have had a duty to preserve them, but even if it did, given the other factual findings that there was no bad faith on behalf of the state in the destruction of the documents, that it was well within the ALJ's discretion to not award the harsh sanction that they asked for.

[00:22:37] Speaker 00:
So even assuming that the state had some duty to preserve those, that doesn't mean that

[00:22:42] Speaker 00:
their destruction requires ending this case before getting to the merits.

[00:22:48] Speaker 00:
So the Supreme Court has said that the quote threshold for substantial evidence is not high.

[00:22:54] Speaker 00:
So even if the court disagrees with aspects of the decision or may have weighed some of the evidence differently, it should still affirm the commission as long as there's some evidentiary support for the claim that Ward failed to prove the causation element of retaliation.

[00:23:09] Speaker 00:
The record shows that the state was concerned about Ward's disloyalty at least six months before she engaged in any arguably protected activity.

[00:23:19] Speaker 00:
We know this because the governor's chief of staff sent a memorandum to high-level officials warning them not to campaign with state resources, and that was sent because he had heard the rumors about Ward.

[00:23:31] Speaker 00:
The chief of staff also called Ward to discuss the rumors.

[00:23:35] Speaker 00:
and figure out what was going on in her office.

[00:23:37] Speaker 00:
Again, this all happened before she engaged in any activity that was arguably protected.

[00:23:41] Speaker 00:
It was only after Ward was confronted that she began engaging in activity that may be protected under GARA.

[00:23:48] Speaker 00:
And at that point, the state more or less did what Ward asked it to do.

[00:23:51] Speaker 00:
It sent the state's HR people to investigate her claims of misconduct.

[00:23:55] Speaker 00:
They interviewed over 20 people, concluded, as Ward partly alleged, that there had been some misconduct and it reprimanded the offender.

[00:24:03] Speaker 00:
But during that sexual harassment investigation, the governor's office also heard rumors that Ward was misusing state resources or at least being disloyal.

[00:24:12] Speaker 00:
Quotes from that evidence are collected on page 8 of the state's first brief.

[00:24:16] Speaker 00:
Then the governor called Ward personally to confront her about the perceived political disloyalty.

[00:24:21] Speaker 00:
That conversation is memorialized in a document written by Ward, which is also in the record.

[00:24:27] Speaker 00:
would then went on television.

[00:24:28] Speaker 05:
It seems like there's a little bit of slipperiness going from misuse of government resources to disloyalty.

[00:24:34] Speaker 05:
It would have been easier for you to just argue disloyalty all along here.

[00:24:37] Speaker 05:
I'm not quite sure whether you're trying to shift to that now.

[00:24:40] Speaker 00:
I'm not trying to shift to that now.

[00:24:42] Speaker 00:
Political disloyalty and misuse of resources are sort of warp and weft in this case.

[00:24:48] Speaker 00:
The only theory of

[00:24:50] Speaker 00:
The main theory of political disloyalty was that she had used state resources by creating this list, the mailing list, and that that was used for the purpose of supporting

[00:25:04] Speaker 00:
an insurgent political candidate.

[00:25:06] Speaker 00:
So the political disloyalty sort of goes hand in hand with the misuse of state resources there.

[00:25:11] Speaker 00:
There's no other theory of how she used state resources in a way to benefit herself other than for her political career and that of other politicians.

[00:25:23] Speaker 05:
And what do you think Ryan was talking about when he referred to the investigation?

[00:25:27] Speaker 00:
I believe that that was the investigation.

[00:25:30] Speaker 00:
There were three investigations.

[00:25:33] Speaker 00:
There was the investigation performed by Zaruba.

[00:25:36] Speaker 00:
There was the summary of that for Bert Horton.

[00:25:39] Speaker 00:
Maybe those are the same.

[00:25:40] Speaker 00:
And then there's the internal sexual harassment investigation, which uncovered more rumors about Ward's misbehavior.

[00:25:48] Speaker 00:
And then after that, Nysic

[00:25:51] Speaker 00:
instructed Bob Helm to go check the computers.

[00:25:55] Speaker 00:
And so that flows from things that were learned during the sexual harassment investigation, but it's an internal investigation.

[00:26:02] Speaker 05:
What was the evidence that came out during the sexual harassment investigation that was about disloyalty and misuse of resources?

[00:26:08] Speaker 00:
There were at least five people who said that they believed that the harassment complaint itself was retaliation for being confronted with the rumors.

[00:26:22] Speaker 00:
So in those statements, and I can pull up quotes from the brief, but they say things like wards being disloyal.

[00:26:35] Speaker 00:
So here's a quote.

[00:26:38] Speaker 00:
Bob responded there was some office unrest, but it was related to Ward's loyalty.

[00:26:44] Speaker 00:
So that was a statement from while they were investigating the harassment, people were saying that Ward was disloyal.

[00:26:50] Speaker 00:
Here's another one.

[00:26:50] Speaker 00:
Wanda thinks the Jones complaint is retaliation related to a separate issue, maybe related to professional loyalties.

[00:26:57] Speaker 00:
And there's three or four more of those.

[00:26:59] Speaker 00:
So there were these convergent rumors that were coming out during the sexual harassment investigation pointing to the fact that Ward was being disloyal and those people were connecting the two.

[00:27:09] Speaker 00:
And so that triggered this internal investigation into the disloyalty because it had confirmed rumors that the governor's office had heard elsewhere.

[00:27:21] Speaker 00:
So taking all of this together, the position of the governor's office was more or less the same before, during, and after Ward engaged in activity that could be protected under Guerra.

[00:27:31] Speaker 00:
During each of those time periods, people were very concerned that she was misusing state resources in a way that was politically disloyal, and she was eventually fired for that reason, as the termination memorandum explains.

[00:27:44] Speaker 00:
The third point I wanted to make is that Ward offers almost no meaningful positive evidence that the stated reason for firing her was pretext.

[00:27:52] Speaker 00:
She has cited her own testimony, which was expressly discredited by the commission, and she also tries to rely on speculation about the timing and the sequence of events.

[00:28:01] Speaker 00:
As I've already said, the state's position was more or less the same before, during, and after Ward engaged in activity that might be protected under Guerra.

[00:28:11] Speaker 00:
The mere fact that she was fired after engaging in some protected activity, absent any other positive evidence of pretext, is not enough to overturn the Commission's factual findings when all that's required is substantial evidence.

[00:28:25] Speaker 00:
In sum, Ward was fired for political disloyalty and misusing state resources, which is not a violation of GERA.

[00:28:32] Speaker 00:
That finding is supported by substantial evidence.

[00:28:35] Speaker 00:
Unless there are any questions, the state asks the court to one, vacate the monetary discovery sanctions, and two, either affirm the agency's decision on the merits or conclude that Ward's claim is barred by sovereign immunity for the reasons in the briefing.

[00:28:49] Speaker 00:
That's about 10 minutes.

[00:28:52] Speaker 05:
Thank you.

[00:28:52] Speaker 00:
Thanks.

[00:29:01] Speaker 01:
Good morning, and may it please the court, Courtney Dixon from the commission.

[00:29:05] Speaker 01:
My friend from Alaska has essentially covered the ground here.

[00:29:07] Speaker 01:
I'll just underscore a couple of things.

[00:29:09] Speaker 01:
One, again, substantial evidence standard.

[00:29:12] Speaker 01:
And the question, Judge Friedland, as you had asked, is not, you know, did or did not Ms.

[00:29:16] Speaker 01:
Ward actually misuse state resources, but did the state genuinely believe that she did, and did it terminate her for that reason, or rather a protected reason?

[00:29:24] Speaker 01:
And substantial evidence supports the agency's conclusion that the state's reason was the true reason.

[00:29:28] Speaker 01:
And for that reason, Ms.

[00:29:29] Speaker 01:
Ward's petition should be denied.

[00:29:31] Speaker 05:
Do you have an explanation for why it took the EEOC decades to decide this case?

[00:29:36] Speaker 01:
I don't, Your Honor, but obviously we have the final decision before us now and it was correctly decided.

[00:29:40] Speaker 05:
Are there other GERA cases and do they also take this long?

[00:29:43] Speaker 01:
I'm not aware.

[00:29:44] Speaker 01:
I do know that there's not that many GERA cases, but I can't say how long they take on average.

[00:29:50] Speaker 05:
Does the EEOC have its own ALJs now?

[00:29:53] Speaker 01:
I'm not aware of that either.

[00:29:57] Speaker 05:
I don't have any questions.

[00:29:59] Speaker 05:
I don't think we have further questions.

[00:30:01] Speaker 01:
Thanks very much.

[00:30:09] Speaker 02:
I have to begin by repeating that there is no actual evidence in the record that supports an honest belief.

[00:30:16] Speaker 02:
And we actually, although the summary of the Zerub report purports to state what is in the evidence, we believe there may well have been exculpatory evidence that was included.

[00:30:32] Speaker 02:
And we think that this was intentionally withheld.

[00:30:35] Speaker 02:
Why on earth would it be

[00:30:37] Speaker 02:
included in the privilege log for 17 years before they were finally forced to disgorge something that they claim they destroyed.

[00:30:48] Speaker 02:
There's no actual evidence.

[00:30:50] Speaker 02:
And there is no way that Ward could adequately defend herself without knowing what this investigation was based on.

[00:31:03] Speaker 02:
It seems to me that, well, we know from Ward's testimony that the state began to sort of circle the wagons the minute the sexual harassment complaint appeared.

[00:31:14] Speaker 02:
She had a call from a state senator's aide telling her to back off.

[00:31:19] Speaker 02:
Jerry Sanders was told by the governor that he had locked Ward out of the office because of the sexual harassment complaint.

[00:31:30] Speaker 02:
And all of these so-called, if the state really believed that they were firing her because of the rumors, they would have said so instead of concocting an investigation, because of course the governor could have fired her for any non-discriminatory purpose.

[00:31:51] Speaker 02:
The spoliation was complete.

[00:31:54] Speaker 02:
She was never interviewed.

[00:31:55] Speaker 02:
They attempted to hide it.

[00:31:57] Speaker 02:
And in contrast to the way this report was maintained, the sexual harassment report and all the evidence was preserved in a locked drawer.

[00:32:11] Speaker 02:
You would think that something as important as misuse of state resources would be treated the same way.

[00:32:18] Speaker 02:
We think that it's possible the actual affidavits in interview reports might have been exculpatory.

[00:32:25] Speaker 02:
It is entirely possible that Zaruba only put in some of what was contained.

[00:32:31] Speaker 02:
It's obviously not a complete record of what they learned.

[00:32:35] Speaker 02:
For example, the interview report with Leola Rutherford.

[00:32:39] Speaker 02:
The attachments, the report is not helpful.

[00:32:42] Speaker 02:
But the attachments might have been helpful.

[00:32:45] Speaker 02:
And Ms.

[00:32:45] Speaker 02:
Ward, the states,

[00:32:48] Speaker 02:
highly negligent, if not purposeful.

[00:32:50] Speaker 02:
And we related in the brief the reasons why we actually believe there's bad faith here.

[00:32:55] Speaker 02:
But the state's destruction or loss of the evidence and to allow the judge to permit testimony about the contents of this investigation is just

[00:33:17] Speaker 02:
in our view, the kind of spoliation that demands reversal and another- You're over your time.

[00:33:23] Speaker 02:
Can you give an including- I am.

[00:33:25] Speaker 02:
I think, well- Is that all?

[00:33:27] Speaker 02:
Basically, when you spun yourself dry, you shut yourself off.

[00:33:31] Speaker 02:
Thank you very much, Your Honor.

[00:33:33] Speaker 05:
Thank you, both sides, for the helpful arguments.

[00:33:34] Speaker 05:
This case is submitted, and we are adjourned for the day.