close
close

Apre-salomemanzo

Breaking: Beyond Headlines!

Whitmire: Kay Ivey’s Long Stupid Nuclear War Saga
aecifo

Whitmire: Kay Ivey’s Long Stupid Nuclear War Saga

This is an opinion column.

On Tuesday, Gov. Kay Ivey fired a man.

Veterans Affairs Commissioner Kent Davis didn’t resign to spend more time with his family. He didn’t get transferred to a job in a broom closet where he collected a paycheck until he found something else.

Delivered a letter in front of a room full of supporters, Davis was fired — although it’s unclear whether Ivey even has the authority to do so.

This is the latest development in a long, messy battle between state agencies that has so far resulted in:

(1) An agency director, Davis, accusing a cabinet member of ethical crimes, and that same cabinet member being exonerated of these crimes,

(2) Davis, agreeing to resign and then mocking this promise,

(3) The Veterans Affairs board defied Ivey by insisting that Davis stay,

(4) And finally, a minor constitutional crisis.

Yeah, that’s a lot.

But it’s an important story to understand, because there’s a lot at stake, including the power wielded by Alabama’s governor.

And if Ivey is still fit to use it.

Food fight at the pigsty

Like other great wars, this one started with a small argument.

Earlier this year, the Alabama Department of Veterans Affairs threw its support behind a bill to distribute $7 million in federal stimulus funds to a handful of nonprofits across the state .

The Alabama Department of Mental Health, which would have helped distribute the money, got scared. Officials questioned the credentials of some nonprofits

This sparked a turf war between Veterans Affairs and Mental Health, which escalated until Davis, the Veterans Affairs commissioner, filed a lawsuit accusing Kim Boswell, the Mental Health commissioner, employees of his ministry and certain lobbyists of having committed ethical crimes.

I read the Veterans Affairs complaint. While I am generally optimistic about such liability, the complaint is vague, alleging “collusion” and reads like a product of the My Pillow School of Law, where grievances and hurt feelings are prima facie evidence of wrongdoing.

Furthermore, certain facts alleged in the complaint – such as appearances made by an injured party at public meetings – were not, in fact, facts. This did not happen and was refuted with meeting video.

The Alabama Ethics Commission saw things the same way and took the unusual step of publicly dismissing the complaint and exonerating the defendants.

Once his mental health commissioner was cleared, Ivey then demanded Davis’ resignation.

And this is where things get tricky.

Ivey could have said, “Mr. Davis filed a false ethics complaint accusing one of my office members of crimes she didn’t commit and I want her head for it.”

But she didn’t do it.

Instead, she rolled out a list of squishy allegations, accusing Davis of mismanaging his department.

But none of these things were particularly recent, which begs the question: why fire him now? It seems more likely that she really wanted him gone for filing the ethics complaint. She just doesn’t want to say that.

And this is where things get even trickier.

Ivey did not name Davis. The VA Council does this. She should know, since she also sits on this board. The board can fire him, as long as the votes are there.

And Ivey never had the votes.

In a game of political chicken, Ivey called a September board meeting to fire Davis. Hours before that meeting began, Davis agreed to resign at the end of the year and Ivey agreed to leave it at that.

It could have been a peaceful end to a stupid fight, but it didn’t stop there.

Regardless, the VA board reviewed Ivey’s allegations against Davis and found them to be insufficient. Ivey then called another meeting to fire Davis – a meeting she did not attend, although it was held just down the hall from her Capitol office – but the board voted 3 against 2 to keep Davis.

Minutes after that meeting, the governor’s legal staff delivered a letter to Davis informing him that the governor had reversed the board’s decision and fired him anyway.

“Supreme executive power”

How could Ivey fire him when that’s the board’s job?

By invoking what is called his “supreme executive power”.

Like many other state constitutions, Alabama’s constitution vests “supreme executive power” in the governor, and it does virtually nothing to define what “supreme executive power” means.

Most governors seemed to have left it alone until about 20 years ago, when Alabama Attorney General Troy King decided he was no longer going to pursue gambling in Alabama. Then-Gov. Bob Riley appointed a gambling task force to do the work that King refused to do, and the whole thing ended up in a confusing mess in the Alabama Supreme Court.

The court ruled that the Alabama Constitution gives the governor “supreme executive power” to take charge when other state officials fail in their jobs.

In his letter to Davis, Ivey said the board failed in not firing him.

And now she’s invoking this nuclear option to get rid of him.

But the problem with nuclear options is that they often result in mutually assured destruction.

Anyone at home?

Three weeks ago, Kay Ivey spoke with the Kiwanis Club of Birmingham, and shortly afterward I began receiving the calls I often receive following such events.

She did not answer questions, they said. She only spoke for a few minutes. She looked terribly tired and when she was finished, her staff quickly took her out of the room.

And they asked variations of the question that followed Ivey throughout his administration: Is anyone home?

John Saxon was also present at the meeting.

“She should have, at least, been able to answer a few questions,” he told me this week.

Saxon is an employment lawyer and now he’s Davis’ lawyer.

He threatens to sue the governor under Alabama’s ethics law for retaliation.

“If we take legal action, I will look forward with great pleasure to taking the governor’s deposition and seeing how she reacts when it’s under oath and unwritten,” Saxon said Tuesday, minutes after that the governor’s office delivered the letter to Davis.

When I spoke to Saxon later that day, he reiterated that he looked forward to hearing Ivey’s deposition and would invite as many people into the room as possible to watch it.

There are legal barriers that the governor’s staff could likely raise.

But I’ve known Saxon for years. I saw him working in court. I’ve read other depositions he took. And I will say this with confidence: If Saxon manages to depose Ivey, Joe Biden’s debate performance will resemble Ken Jennings’ winning streak on Jeopardy.

The “supreme executive power” may sound like ultimate authority, but it is far from it. This is a desperate measure of last resort. It’s the button behind the glass that you press when nothing else has worked.

And that’s what happened here: nothing else worked.

Nothing else worked because Ivey’s staff didn’t count the votes before she demanded Davis’ resignation.

Nothing else worked as they failed to convince the board that Davis should be fired.

Nothing else has worked because Ivey is now accusing a public board of directors of not doing its job, when it was Ivey who didn’t show up to the meeting.

Nothing else worked, so they pressed the button, not knowing what might happen next.

Even mutually assured destruction.