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 wasn’t transferred to a broom closet job where he’d draw a paycheck until he found something else.
Handed a letter in front of a room full of supporters, Davis was fired — despite it being unclear whether Ivey even has the authority to do so.
It’s the latest development in a long messy battle between state agencies that, so far, has resulted in:
(1) One agency director, Davis, accusing a cabinet member of ethics crimes, and that same cabinet member being cleared of those crimes,
(2) Davis, agreeing to resign and then crawfishing on that promise,
(3) The board of Veterans Affairs defying Ivey by insisting that Davis stay on,
(4) And finally, a minor constitutional crisis.
Yeah, it’s a lot.
But it’s an important story to understand, because there’s a lot at stake — including how much power Alabama’s governor wields.
And whether Ivey is still fit to wield it.
Food fight at the hog trough
Like other big wars, this one started with a petty dispute.
Earlier this year, the Alabama Department of Veterans Affairs threw its support behind a bill to distribute $7 million of federal stimulus money to a handful of nonprofits throughout the state.
The Alabama Department of Mental Health, which would have helped distribute that money, got spooked. Officials questioned the credentials of some of the nonprofits
That ignited a turf war between Veterans Affairs and Mental Health, which escalated until Davis, the Veterans Affairs commissioner, filed a complaint accusing Kim Boswell, the Mental Health commissioner, her department staffers and some lobbyists of committing ethics crimes.
I read the complaint from Veterans Affairs. While I’m generally bullish on such accountability, the complaint is vague, alleging “collusion” and reads like a product of the My Pillow School of Law, where grievance and hurt feelings are prima facie evidence of wrongdoing.
Also, some supposed facts in the complaint — such as an appearance made by one aggrieved party at a public meeting — were not, in fact, facts. It did not happen and has been disproved with video of the meeting.
The Alabama Ethics Commission saw things the same way and took the unusual step of dismissing the complaint publicly and clearing those accused.
With her Mental Health commissioner cleared, Ivey then demanded Davis’ resignation.
And here’s where things get sticky.
Ivey could have said, “Mr. Davis filed a bogus ethics complaint accusing one of my cabinet members of crimes she didn’t commit and I want his head for that.”
She didn’t, though.
Instead, she unfurled a list of squishy allegations, accusing Davis of having mismanaged his department.
But none of those things were especially recent, which begs the question: Why fire him now? It seems more likely she really wanted him gone for filing the ethics complaint. She just doesn’t want to say that.
And here’s where things get even stickier.
Ivey didn’t appoint Davis. The VA Board does that. She should know that, as she serves on that board, too. 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 was to start, 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 silly fight, but it didn’t end there.
The VA board reviewed Ivey’s allegations against Davis, anyway, and found the allegations lacking. Ivey then called another meeting to fire Davis — a meeting she did not attend, despite it being held just down the hall from her capitol office — but the board voted 3-to-2 to keep Davis.
Minutes after that meeting, the governor’s legal staff delivered a letter to Davis informing him that the governor had overridden the board’s decision and fired him anyway.
“Supreme executive power”
How did Ivey fire him when that’s the board’s job?
By invoking something called her “supreme executive power.”
Like a lot of other state constitutions, Alabama’s constitution vests “supreme executive power” in the governor, and then it does next to nothing to define what “supreme executive power” means.
Most governors seemed to have left it alone until about 20 years ago when then-Alabama Attorney General Troy King decided he wasn’t going to prosecute gambling in Alabama anymore. Then-Gov. Bob Riley appointed a gambling task force to do the job King refused to do, and the whole thing wound up a confused mess before 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 at their jobs.
In her letter to Davis, Ivey said the board had failed when it didn’t fire him.
And now she’s invoking this nuclear option to get rid of him.
But the trouble with nuclear options is how often they end with mutually assured destruction.
Anybody home?
Three weeks ago, Kay Ivey spoke to the Kiwanis Club in Birmingham, and shortly after, I began to get the calls I often get following such events.
She didn’t take questions, they said. She only spoke for a few minutes. She looked awfully tired and when she was done, her staff whisked her quickly from the room.
And they asked variations of the question that has followed Ivey through much of her administration: Is anybody home?
John Saxon was in the meeting, too.
“She should have, at least, been able to take a few questions,” he told me this week.
Saxon is an employment lawyer, and now he’s Davis’ lawyer.
He’s threatening to sue the governor under the Alabama ethics law for retaliation.
“If we do file suit, I will look forward with great relish, to taking the Governor’s deposition and seeing how she responds when she is under oath and unscripted,” Saxon said on Tuesday, minutes after the governor’s office delivered the letter to Davis.
When I spoke to Saxon later that day, he said again he was looking forward to taking Ivey’s deposition and that he would invite as many folks as could fit in the room to watch it.
There are legal barriers the governor’s staff would likely throw in the way.
But I’ve known Saxon for years. I’ve seen him work in court. I’ve read other depositions he’s taken. And I’ll say this with confidence: If Saxon does get to depose Ivey, it will make Joe Biden’s debate performance look like Ken Jennings’ winning streak on Jeopardy.
“Supreme executive power” might sound like ultimate authority, but it’s far from it. It’s a last-ditch, desperate measure. It’s the button behind the glass you push when nothing else has worked.
And that’s what happened here — nothing else worked.
Nothing else worked because Ivey’s staff didn’t count votes before she demanded Davis’ resignation.
Nothing else worked because they couldn’t persuade the board that Davis should be fired.
Nothing else worked because Ivey is now accusing a public board of having not done its job, when it was Ivey who didn’t show for the meeting.
Nothing else worked, so they pushed the button, not knowing what might happen next.
Even mutually assured destruction.