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French on administrative leave; hearing finding goes to governor
Kristen Nelson Petroleum News
Hearing Officer Timothy Petumenos has submitted findings from the Feb. 6-8 hearing on the notice of charges and cause for removal of Alaska Oil and Gas Conservation Commission Chair Hollis French issued by Gov. Mike Dunleavy Jan. 17.
Under Alaska statutes French was entitled to a public hearing “to determine if there was substantial evidence to support removal for cause,” Petumenos said in his findings of fact. French contested the charges and requested the public hearing.
The findings, dated Feb. 12, only became available to Petroleum News after the paper’s Feb. 17 issue went to press.
Alaska Public Media’s Alaska’s Energy Desk reported Feb. 14 that French had been placed on administrative leave with pay.
The ultimate decision on whether grounds exist to remove French is up to the governor, Petumenos said.
AOGCC is an independent, autonomous body and Petumenos said it is apparent under state statute that the Legislature intended “to provide for the independence and autonomy of AOGCC commissioners by requiring that a commissioner may not be removed during office except for specific cause shown.”
The causes listed in the governor’s letter are chronic unexcused absenteeism; browbeating fellow commissioners and others; publicly undermining the AOGCC; security breaches; and failure to perform routine work and non-work-related tasks.
Absenteeism Petumenos said he found that French was routinely absent from the commission’s offices “for substantial parts of the normal workday and that this affected morale at the office, constituted poor leadership and resulted in reallocation of his workload to others,” found that evidence submitted by French shows that he conducted substantial work outside the office but said French’s pattern of absences “and the anecdotal evidence as to the reason stated for some of the absences is such that the absences are not fully explained by Commission work being conducted outside the office.”
In his conclusion Petumenos said that French raised the issue of the right of an employee to progressive discipline. “With respect to chronic absenteeism, the issue does not appear to have been broached directly with Commissioner French prior to these proceedings, which supports Commissioner French’s point that he was not given the opportunity to address, explain or remedy concerns before being subject to these proceedings.”
The independence of commissioners works against French’s argument, Petumenos said. “Commissioner French was the chairman of the AOGCC and at the top of the AOGCC’s authority. It is difficult to conceptualize, in these circumstances, who would have the authority to engage in progressive discipline.” He noted that the governor’s office does not have the authority to intervene in day-to-day operations at the commission, and said given the state’s statutory scheme, “it appears difficult, if not impossible … for the governor’s office to interpose any form of intermediate discipline or supervision given the statutes that clearly protect commissioner independence. Under these circumstances it is not clear who would be in a position to interpose progressive discipline with respect to the chairman of this independent commission.”
Browbeating On the browbeating issue Petumenos said French “fervently and ardently believed” a position he had taken “was correct though it was in the minority” and “was persistent and energetic in pursuing his view that the jurisdiction of the AOGCC was being interpreted more narrowly than he believed that the enabling statutes intended.”
Petumenos said French “persisted in attempting to secure a written response from the Department of Law as to whether his legal reasoning had merit, and conducted his own research and issued writings of his own supporting his point of view.”
French had a conference with the attorney general and other members of the Department of Law without the other commissioners to argue his point of view and wrote to Gov. Bill Walker in May 2018 stating his position, with the other commissioners writing a rebuttal in a separate letter.
Petumenos said French brought up the issue on numerous occasions with the other commissioners, and while he may have “argued his position forcefully, fervently and persistently, there is insufficient evidence that Commissioner French was unprofessional, rude or bullying when he did so.”
The scope of AOGCC’s jurisdiction first surfaced in an adjudicatory hearing, Petumenos said, but “French’s subsequent communications did not seek to change or modify the Commission’s adjudicatory decision, but rather was directed at how the Commission should view its jurisdiction prospectively.”
Petumenos said he believes it would “set a dangerous precedent” to consider removing a commissioner “for ardently pursuing a matter though the Commissioner be in the minority.” He said the point of Alaska’s statute on removal “is to ensure that removal for cause does not come about as a consequence of policy disagreements or points of view, but for elements of misconduct unrelated to the merits of any issue before the AOGCC. Though this persistence may be experienced by others to be a waste of time, be annoying or frustrating, it is too close to the prohibition against issue-based removal to stand scrutiny on these facts.”
- KRISTEN NELSON
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