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.