The ‘Not A Sharp Operator’ Defense

The ‘Not A Sharp Operator’ Defense

Written on 09/01/2020
Will Aitchison

In May 2012 Valent Maxwell, a police officer for the City of Klawock, Alaska, accepted a law enforcement job in Fairview, Montana. He left some belongings in his city-owned apartment in Klawock, sold some, and moved or shipped the rest to Montana. Shortly after starting the new job, however, he quit, finding his salary inadequate to meet the cost of living. He returned to his job in Klawock, having been gone from Alaska for 24 days.

In October 2013 Maxwell accepted another job in Montana, this time as police chief in Ronan. He moved to Montana, where he permanently registered his vehicle. But he was fired from this job in early January 2014, and again he returned to his job in Klawock. He had been gone from Alaska for 70 days in 2013 and 59 days in 2014.

Maxwell applied for and received the Alaska Permanent Fund dividend (a payment the State makes to residents out of oil receipts) for both 2013 and 2014, certifying by his electronic signature that he had been a resident for the full preceding year and had not claimed residency in any other state. The application forms did not define residency. However, state regulations make a person ineligible for the dividend if they maintain “the individual’s principal home in another state or country” or accept “full-time, permanent employment in another state or country.”

The State charged Maxwell criminally with theft and unsworn falsification for his receipt of the 2013 and 2014 dividends. He was acquitted after a bench trial. The Executive Director of the Alaska Police Standards Council then filed an accusation alleging that Maxwell’s conduct — in claiming dividends despite full-time employment outside Alaska — demonstrated a lack of good moral character that justified revocation of his police certificate.

An administrative law judge declined to recommend the revocation of Maxwell’s certificate. The Council refused to accept the recommendation and revoked the certificate. Maxwell appealed to the Alaska Supreme Court.

The Court reversed the Council’s decision. The Council relied on Maxwell’s testimony that, given the same circumstances, he would apply for the dividends again. The Council contended that “this statement in particular supports a reasonable mind’s acceptance of the conclusion that Maxwell lacks respect for the law, and so raises substantial doubts about his good moral character.” The Council also argued that given Maxwell’s police training, he “could reasonably be expected to understand that his acquittal was not a determination that he was a resident of Alaska” or eligible for the dividends.

The Court rejected the Council’s approach, holding that, “We agree with the trial court’s analysis. Maxwell’s testimony aligns with the observation, repeated by all three decision-makers, that he was ‘not a sharp operator’ and by the time of the hearing still failed to understand the relevant law, in large part because of his misinterpretation of the judge’s remarks about his dividend eligibility at his criminal trial. Although the Council dismissed Maxwell’s alleged reliance on those remarks, it did observe that they ‘could be interpreted’ as addressing Maxwell’s residency and eligibility.

“The Council did not find that Maxwell willfully misinterpreted the judge’s remarks, only that a reasonable person with police training should have better understood them. A finding that a person with police training should understand the law is not a finding that Maxwell in fact did understand it. While his failure to understand the law governing his conduct is disturbing and perhaps a reason to find him unsuited for police work, it is not the same as dishonesty or disrespect for the law. We therefore conclude that the Council’s findings do not meet the substantial evidence standard.”

Alaska Police Standards Council v. Maxwell, 2020 WL 3116955 (Alaska 2020).

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