Saturday, May 27, 2023
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Art Chance: Don’t blame the judge


My book, “Red on Blue,” sells for $9.99 at Amazon. Those ten bucks would have saved the State of Alaska a lot of money and the Dunleavy Administration a lot of embarrassment because there is a chapter titled “Taking Out the Trash” about removing the flotsam and jetsam of prior administrations when you take office as a Republican.   

In that chapter I admonish that you need a good lawyer for taking out the trash. I go on to say; “Many states that have had long time Democrat dominance have lots and lots of jobs that look like political appointees but are not.   There is a line of U.S. Supreme Court law, interestingly mostly out of Chicago, that says that if the employee is not in a policy making position, they do not serve at the pleasure no matter what your state law may say. Make sure your reach does not exceed your grasp because the lawsuits can be expensive and embarrassing …”   

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I hate to have been so right, well, not really, I could have used the ten bucks if they’d bought my book.

As I get the story, the Office of the Governor asked the Department of Administration for a list of all “at will” State employees.   

In my time, the reply to that request would have been, “Please define what you mean by ‘at will.’ ”   

If the question had come to me as director of Labor Relations or to Dianne Corso as director of Personnel in the early 2000s, both of us would have answered simply, “the State has no ‘at will’ employees.” The senior governmental affairs lawyers in the Department of Law would have had the same answer.   

I have fond memories of lots of spirited conversations at the labor relations conference table with Corso, Assistant Attorney General Kathleen Strasbaugh, and whatever labor relations and personnel staff who might be around. We debated the contours and limits of “satisfaction contracts,” non-retention versus dismissal of probationary employees, and especially about the Alaska Supreme Court-imposed “covenant of good faith and fair dealing” that they found to exist in anything that in the mind of someone in a black robe constituted an employment contract.   

Needless to say, there was no love in the State’s management for the Supreme Court’s idea that they reserved judgment over whether our actions were fair and in good faith.   

Time has not changed my belief that the whole notion is merely an arrogation of power by the Judiciary, allowing somebody in a robe to substitute their judgment for that of any manager.   

Funny how most things done by Democrats were fair and in good faith, and most things done by Republicans weren’t, at least at the trial court level, though in those days the State did pretty well at the Supreme Court level.   Despite our tensions with the State courts, we did everything we could to stay away from the federal courts.   

The problem there was not so much the Alaska District Court, but the fact that anything the District Court did had to go to San Francisco and through the Ninth Soviet, excuse me, Circuit Court of Appeals, and nothing having to do with Alaska ever fared well there.

The essence of Judge Sedgwick’s decision is that the two plaintiffs were not policy makers and, thus, were not “at will.”   This is illustrative of a problem I struggled with throughout my time in government; all too many elected and appointed officials believe that “Exempt” means exempt from all labor laws and regulations, thus the notion of “at will” employment.  

Those of you who follow me know that I have real problems with the State’s use of “exempt” appointments, and especially “temporary exempt” appointments, which I believe to mostly be blatantly illegal.   

The Alaska Constitution almost uniquely requires a “merit system” of employment for State employees. However, once they had to contemplate actually staffing and running a government, it quickly became apparent that the rigid rules of federal-style merit system employment made it almost impossible to hire and pay some types of employees.   At the inception of the State Personnel Act in 1961, the Legislature created two classes of employees who were somewhat or entirely exempted from the “merit system of employment” articulated in the State Personnel Act.

The Legislature created the “partially exempt” service of State employees, composed primarily of true political appointees such as directors and special assistants to commissioners and the like. Later the assistant attorneys general were added to the partially exempt service, ostensibly to give governors and attorneys general more freedom in choosing their subordinates.   

The Legislature also created the “exempt” service, a group of employees who were not subject to competitive selection and did not have to be paid from the State Pay Plan established in statute and later in labor agreements.  The statutory purpose of the exempt service is to have employees who cannot be recruited by the State’s normal recruitment processes or paid from the State’s established pay plan and to assure that elected officials, the Legislature, and the Judiciary are not subject to the Executive Branch’s rules.   

Other than elected officials and other branches of government, the primary driver for the fully exempt service was the vessel employees of the Marine Highway System. At that time, the Marine employees were the State’s only unionized employees and they had the sweetest of sweetheart deals; they weren’t about to have to deal with bureaucrats in Juneau about who got hired, how they got paid, and who got promoted and such, so they got themselves exempted from that stinking personnel act.

An early issue with exempt appointments were certain professions, among which was the chief psychiatrist at the Alaska Psychiatric Institute; you simply couldn’t buy a psychiatrist for what the State Pay Plan offered, so they were exempted and the salary was negotiated, sometimes with a bit of controversy.    

As the oil industry developed in Alaska, various petroleum-related professions were added so that the State could compete with the oil industry for professional talent.  

If you peruse AS 39.25.110 it is hard to escape the conclusion that it is mostly a compilation of people with friends in high places. Few of them are in positions that have even the slightest indicia of policy-making authority. I might have been willing to take a shot at showing the chief psychiatrist at API had some policy-making authority, but I wouldn’t have been willing to bet my career on it.

So, before this becomes the book they should have bought, you can boil it down to some fundamental issues:  

First, Dunleavy and his courtiers didn’t know enough about State government to either ask the right question or understand that they got a bad answer.   

Second, they didn’t see the “loyalty oath” ploy coming. The rule is, “any reason, no reason, but not an illegal reason,” and the best rule is no reason; you just don’t fit into our plans is all you need to say, then you can offer them all the opportunity to re-apply. They could have read that in a book too.   

Third, there is either a serious erosion of competence in the Department of Administration or there was some malicious obedience. To be charitable, maybe Admin gave the Dunleavy Administration advice they didn’t want to hear.   

And finally, if you’re a Republican administration pursuing a controversial agenda against a powerful Democrat interest, you simply cannot use the Alaska Department of Law for either advice or representation. In short, the judge’s decision was entirely predictable, if you just knew enough to predict stuff.

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. 

Read Art Chance: The busiest day

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  1. Well, Art, after watching my job and many, many compatriots’ jobs go away over the jab, to be replaced by overpaid outsiders, I am convinced that our governor is about as conservative as Louise Stutes. Totally worthless. Maybe we can recruit Gov Abbott for the next election cycle.

  2. Exactly. Moving to North Idaho this month ourselves. It’s not Texas but it’ll do. . Last conservative voter in Anchorage please turn out the lights

  3. If you’re expecting Dunleavy to be able to move strategically, ask for help, or do anything other than fall on its face,

    you’re asking way too much.

    Dunleavy is the epitome of Alaska Republicans. Ineffectual, incompetent, and with the spine of wet pasta.

  4. I have a bias: “We have been spurned at the foot of the throne.” again. And “there is no longer any room to be free having been so long contending…what we have left is the God of hosts and we are hugging the delusive phantom of hope”. Forbid it Almighty God. John Adams agrees with me: “Congress offered no leadership”. Does the pen write,?

  5. Can’t say that I disagree with the article. I’d re-emphasize and re-cast two parts: 1) Emphasis on “Any reason, or no reason, but not an illegal reason”; and 2) If one is going to terminate a large number of any employee group (i.e. employees of the State of Alaska), don’t rely on any facially-neutral or quickly-produced, or asserted-to-be-sound opinion (i.e. from the Department of Law) from a member of that group.

    I fully support Gov. Dunleavy in many of the changes he’s attempting, but he should have been more critical and thoughtful and applied some independent judgment in this particular matter.

    …and should have seen this coming in any case in the current environment.

  6. There is another article on this website where there is a reference to the phrase “believe all women”. Well, maybe. But better advice is to believe Art.

  7. I always enjoy reading your columns because I always learn new things about how the state government works.

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