Georgia and National Elections 2012 5:13 a.m. Monday, August 16, 2010

Archer’s evidence
 fairly flimsy

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For the AJC

Headlines trumpeted state Inspector General Elizabeth Archer’s latest findings a few weeks back:

“State’s ethics lawyers blasted for outside work.”

“State attorneys ran private firm on public time.”

“Moonlighting Ethics Commission lawyers violated state policies.”

But look closer at Archer’s investigative files, as I did, and you’ll find fairly flimsy evidence for some of her conclusions. Some “findings” are artfully worded to suggest impropriety without explicitly stating it.

Not only that, there’s no sign she informed one of the attorneys of a key issue or asked for an explanation.

Archer declined to comment and said her July 14 report speaks for itself. That report concluded that Tom Plank and Yasha Heidari, full-time state workers, failed to get approval to launch their law practice, misused state resources and, on state time, appeared in court and communicated with other lawyers about the firm’s cases.

Both men resigned under a cloud. Heidari left in April, while Plank gave notice two weeks ago.

Plank and Heidari started the firm in March 2009 after learning state budget cuts might force layoffs. Archer’s files show a senior assistant attorney general told their bosses the law does not prohibit the private practice, but warned the two lawyers still owed the state a full day’s work and could not use state resources for personal gain.

The report’s key findings:

● Sick leave. Archer concluded Plank and Heidari “established a pattern of sick leave abuse,” implying they did so to benefit the law practice without saying so.

Heidari acknowledged using sick leave to attend court hearings. The agency’s boss at the time said he didn’t care what kind of leave his staff took, but state policy and common sense say sick leave is for when you’re sick. Heidari also met with an attorney on a private case when he was supposed to be working from home.

As for Plank, Archer reported he “used his sick leave nearly as fast as it accrued.” Plank declined to comment but gave me an eight-page rebuttal that said he has a permanent disability related to service in the Army in Panama. He took sick leave for appointments at the VA hospital and for the birth of his second child.

Archer never notified him sick leave was an issue and never asked him about possible abuse, Plank wrote. If she had, he wrote, “I would have easily provided this exculpatory information.”

● Prior approval for law practice. The report cited a statewide personnel policy that requires an employee engaged in outside work to “inform” his or her supervisor. It makes no mention of “prior approval” but quotes the secretary of state’s human resources supervisor as saying permission is necessary.

When I asked for clarification, a spokesman for the secretary of state sent me a policy that covers only that agency’s employees. The Ethics Commission is “administratively attached” to the secretary of state but does not follow its personnel policies, executive secretary Stacey Kalberman said.

● Misuse of state resources. Plank and Heidari used the commission’s Lexis/Nexis account and Internet browser to do legal research. Archer said this constitutes misuse of a state resource but does not mention the commission’s “reasonable use” policy for information technology. The policy allows brief, infrequent personal use of e-mail and Internet connectivity, but not for private, for-profit activities. (Plank wrote that most of his outside legal work was pro bono.)

● Private work on state time. The report identified one phone call and four e-mails during work hours that were related to the law practice. (Most employers, as required by federal law, allow workers a couple short coffee breaks and time to eat lunch.) Archer’s investigator reported that Plank made one court appearance — on his lunch break — during work hours.

Archer, an appointee of Gov. Sonny Perdue, told me she wouldn’t comment on Plank’s response, but I did call and meet with her to ask. That’s the fair and professional way to conduct yourself.

I’ve written or edited hundreds of investigative news stories — maybe thousands. If another journalist wanted to publish a story without letting the subject respond to findings that could harm a reputation or career, I’d say that journalist had no business doing investigative work.

It will be interesting to see whether this governor, or his successor, adheres to the same standard.

Jim Walls, retired investigations editor of The Atlanta Journal-Constitution, runs the watchdog news website atlantaunfiltered.com .



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