Art Chance: Any reason, no reason, but not an illegal reason 

The art of firing state workers

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By ART CHANCE

As I predicted shortly after it happened, the State paid off the two psychiatrists that the Dunleavy Administration fired from the Alaska Psychiatric Institute at the beginning of Gov. Mike Dunleavy’s Administration. The $400,000 and change was a bargain.   

The State has lots of employees who should simply be paid off or sent home with pay and ordered not to represent themselves as State employees. 

Alaska Psychiatric Institution psychiatrists are one of the reasons for the development of the Exempt Service of State employees. The Alaska Constitution, almost uniquely, requires a “merit system” of employment in State government, whose personnel system is an exemplar of positivist law.   

The Constitution called for a merit system of employment and the early legislatures set out to lay that out in statutory language. The State Personnel Act (AS 39.25 et seq.) sets out the contours and limits of a merit system.

The State Pay Plan (AS 39.27 et seq.) sets out what you could legally get paid. Other statutes set out how much leave you could earn and retain, and how much you could earn in retirement.   

The whole idea of a mid-Twentieth Century government employment system was that everything would be in statute and regulation with administrative appeal processes. If judicial action was required it would be a matter of application of clearly expressed law. Fond hope!

The objective system quickly ran into practical reality. The aborning Alaska Marine Highway System had a personnel and pay system based on Washington ferry union contracts, which couldn’t be reconciled with the State’s statutory pay schemes. Teachers had an elaborate system of pay and benefits based on Bureau of Indian Affairs practice and local school district patterns, which likewise couldn’t be reconciled with the statutory schemes.   

There were many other types of employees who simply couldn’t fit into the ordered pegs and holes of the State Pay Plan and thus was born the Exempt Service, those employees who weren’t susceptible to recruitment and pay under the statutory scheme. One of the most visible was the head psychiatrist(s) at API; you just couldn’t recruit a shrink for what the State paid even a governor or commissioner. 

These guys at API were making well north of $200,000 wages and benefits. Nobody ever accused me of being a nice guy on these sorts of cases, but if I could have settled these cases for about a year’s wages and benefits for each of them without facing an Alaska jury, I’d have done it in a heartbeat.

In my time, I’d authorize six figures to settle a case of wrongful discharge anywhere in Alaska other than Anchorage without hesitation.   Alaskans love to give State money away when they’re sitting on a jury. It doesn’t seem to occur to them that the money that they’re giving to someone is their money. I don’t know that I’d want to face a jury even in Anchorage these days.

I’ve written about this in previous columns and had numerous discussions with officials about it; “exempt” as in “Exempt Service” doesn’t mean that the employee is exempt from all labor laws, a concept hard for some to grasp. 

I’m told that the Governor’s Office, in those early days, had asked the Division of Personnel for a list of all “at will” employees of the State. In my time, the answer would have been “there are none,” but Personnel gave them a list of all employees in the Exempt Service. Well, all the vessel employees of the ferry system are in the exempt service, but they’re under union contracts and are about as far from “at will” as you can get. The teachers are exempt. The emergency firefighters are exempt. Being in the Exempt Service only means you’re exempt from the State Personnel Act and the Pay Plan; it doesn’t necessarily mean that you serve at the governor’s pleasure. 

The Governor’s Office either didn’t ask the right question or somebody didn’t give them the right answer.

The whole State Personnel Act needs a fresh look from the perspective of the modern world. The workplace has changed a lot since it was originally enacted in 1961. We learned painfully in the 1980s’ oil price crash that when the union contracts expired, we really didn’t know how to run the government. It pains me to say that in some ways the federal government has done a better job in distinguishing groups of employees.   

Most of the “Partially Exempt” service are true political appointees and do serve at the pleasure, but not all of them do. Division Directors are true policy makers. The upper level assistant attorneys general are policy makers. Below that, it becomes a case by case question. It is especially an issue in Law where in the lower levels of the attorney classification many are researchers, brief writers, and briefcase toters with no policy-making responsibilities.

Then there is the fact that the Judiciary Branch has arrogated to itself power over the Executive Branch by contriving a “covenant of good faith and fair dealing” in employment relations that gives somebody in a black robe the authority to substitute his/her authority over that of any Executive Branch manager.   

In a sane world, the Walker Administration would have shut attorney and now litigant Libby Bakalar up or fired her if she wouldn’t shut up. I know I’d have had no trouble walking into her office with a couple of empty boxes and telling her to pack up and get out. I’ve read the court decision more than once and I can’t really figure out what the Dunleavy Administration did wrong other than fire a Democrat. 

In the case of the API psychiatrists, any reason, no reason, but not an illegal reason was the standard, so all they had to do was walk in with the boxes and tell them that they didn’t fit in the plan any more. Yet we have a lawyer with a low IQ — a judge — deciding he knows better.    

That said, if I’d have been facing it, I’d have just ponied up the money to keep from facing a jury or a lawyer with good social connections and a low IQ judge.

Art Chance is a retired Director of Labor Relations for the State of Alaska, formerly of Juneau and now living in Anchorage. He is the author of the book, “Red on Blue, Establishing a Republican Governance,” available at Amazon. 

18 COMMENTS

    • Reading comprehension classes may be available for you. After they fired them, I predicted they would either have to pay them off or give them their jobs back.

    • Same way you can hire State lawyers; they work regular hours, they have paid time off, they don’t have to hustle billable hours, and unless they do something truly terrible, they’re not likely to get fired.

  1. Thanks for having common sense, Art. When judges and lawyers start showing signs of diminished capacity and mental breakdown, they go to their psychiatric therapists. A lot of business gets conducted here. But where do mentally incapacitated psychiatrists go? To a lawyer and a judge, of course. It’s a vicious circle out there. We already know that lawyers and judges tilt to the far left and end up with lots of baggage and TDD. But psychiatrists, psychologists and others in the mental illness field, usually begin taking on the symptoms of their customers after about year two. I’ve seen lots of this. I go to Trump rallys and trucker meet-ups. The people there seem much more balanced and associative.

    • Yep. Lawyers and shrinks charge about $300/hr and what do you get for their visit? Not much. But they both have good referral systems.

  2. “I’ve read the court decision more than once and I can’t really figure out what the Dunleavy Administration did wrong other than fire a Democrat.”
    They fired the shrinks for not signing a loyalty oath to King Dunleavy and is Friar Tuckian henchman, which sounds patently unethical if not 100% illegal. Apparently, though, it was $400,000 plus change illegal.
    Sometimes I think Art is angry simply because he can’t fire anyone he wants to. Maybe it’s because he doesn’t have $400K of the state’s money to throw around anymore.

    • I’d have loved to have sent your sorry sack shuffling out of a State building with your crap in a box. Over twenty years and change I can count on my fingers the number of miscreants that survived a visit from me or somebody who worked with or for me.

      That loyalty oath crap is just that Democrat crap propaganda. I wouldn’t have done it that way; they thought they were giving them a chance to apply to keep their job. As I said in the piece, I’d have just shown up with a box or two and said pack up and leave, you don’t fit in our plans any more. If the State decided to fill the position they left, they could apply like anybody else.

    • I suppose Homo would rather have Master Bill Walker and dwarfy Scott Rumpelstiltskin Kendall back, filling the troughs where Democrats and bureaucrats gather to get their free meals and paychecks, while telling the proletariats to eat whale blubber and drink Bud.

  3. Congratulations, Art. That loyalty crap is just that, propaganda by those who want Dunleavy’s job or those who are allied to them. The fact that the term was used so much right from the start betrays the real motive behind it. Anyone coming into a new job has to rely on some of the people who are still there. So who gave the governor’s office the information? Where were their loyalties? Given the actions of former Governor Walker and his two principle aids since the inception of Dunleavy’s term, I would have to conclude that a lot of ill will existed from the start of his term. From Scott Kendall’s management of the recall campaign, through so many of the lawsuits against Dunleavy and his administration, to the constant sniping and the lack of assistance during the Covid Pandemic when even former adversary Mark Begich was ready to help, all we have seen is a constant campaign to denigrate everything Dunleavy has tried to do. So I have to conclude that Walker has been running again from the start, and by the way he gets a long with so many Democrats as well as picking one for his running mate, that he never really dropped out from his last attempt. Back stabbers are rife in politics, but he really is in a league of his own.

    • You should read the document they were told to sign. Looks like loyalty oath, talks like loyalty oath, I agree that it is a load of crap, the legal system saw it for what it was, and just because Art could dissemble his way through firing someone doesn’t mean that he was doing the right thing.
      Case in point, look at the sorry state the Psych Institute is in at present. Repub. Trump wannabes at work, fire people and don’t replace them or replace them with cronies who don’t know what they are doing. Not a great way to run a state or a city.

  4. When I attended UAF many years ago, I noticed there were certain scientists making what seemed to me to be outrageous sums of money. When I discussed this with people, I was assured that UAF was getting a bargain because their pay was a fraction of what they could be making in the private sector. Similarly, from the start, I questioned how long Dr. Morris would last in the Bronson administration, considering the pay for being a homeless coordinator versus the pay for running a medical practice.
    .
    As this discussion is reflecting the usual short-term memory of people, here’s what Suzanne wrote in late 2018: “Blanford makes $313,000 in salary plus benefits for a total of $430,000 a year.”. About four months later, KTUU reported that Blanford was hired back to work at API by Wellpath after they took over running the facility. They left an open-ended question as to whether his salary was to be paid by Wellpath or by the state. I don’t know if anyone in the journalistic corps ever followed up on that point.

  5. State workers can be “fired”. Just don’t fire them, eliminate non union positions under the guise of “reorganization”. Seen it happen.

    It’s a great way to eliminate political troublemakers and people who over perform.

    It’s amazing how efficient the state can get when covering its ass.

  6. Article 12, Section 6 of the Alaska Constitution does require a merit system for State employees, but no administration, nor the legislature will enforce it. The most glaring example of corruption related to this would have to be the illegal hiring and continued employment of senior level managers at the Anchorage Airport. Classified employees are required to meet minimum qualifications at the time of application, however, former airport manager John Parrott was allowed to promote unqualified staff into management positions in direct violation of the Alaska Constitution and the State Personnel Act with the aid of Kate Sheehan and the Department of Administration. These individuals are still employed today, even this has been going on for about 10 years, and is being ignored and covered up by John Binder and others.
    Article 12, Section 6 was specifically put in place to avoid this type of corruption is State employment. “…the principle’s primary objective of securing state workers against the evils of the spoils system”. Moore v. State 1994.
    What is taking place at the airport is most definitely evil. Since our elected leaders refuse to uphold the Alaska Constitution and the laws already on the books, I doubt they care enough to make the laws better. And who would even know how at this point Art?

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