Layoff notice decision time: This could end up in court - Must Read Alaska
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Sunday, September 22, 2019
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Layoff notice decision time: This could end up in court

By ART CHANCE
SENIOR CONTRIBUTOR

Here, hold my beer and watch this! This is the kind of stuff that made me a high-powered State official for some years:

“In every case of the layoff of any permanent employee, the appointing authority shall make every effort to give written notice to the employee at least thirty (30) calendar days in advance of the effective date of the layoff. The appointing authority shall give at least ten (10) working days written notice.”

That is the language from the current agreement with the Alaska State Employees Association representing the 8,000-odd (some of them very odd) members of the General Government Unit of classified, non-supervisory State employees; the maw of the beast.

They may have changed it in the Walker pay-off agreements negotiated after he lost, but those can’t be effective without a budget, so they don’t count.

[Read: Dueling memos: When do layoff notices go out?]

Here’s what I got paid for for all those years: Just what does “make every effort” mean?  That is certainly good for a grievance that goes to arbitration. It is probably good for an injunction if the union can do a little judge shopping and Law lets them get away with it.  It might even be good for an appeal all the way to the Alaska Supreme Court.

The sum of it is that Alaska State Employee Association Executive Director Jake Metcalfe and his ASEA minions can tie the State in knots for a couple of years over the layoff notices should there not be a budget on June 1. They can’t make the State pay them if there isn’t a budget, but they can almost certainly make the State pay them back pay if they get laid off for lack of funds, because none of us really know what “make every effort” means.

Now here is the uptight bureaucrat and lawyer answer to the question: The “make every effort” clause is an expression of good faith but not a legal obligation, and the 10 days notice is the only legal obligation that the State has.

In “Introduction to Law 101” or even 1st year law, that is the right answer. In the real world, it isn’t the right answer.  Now, I’m not a lawyer, but I hired, fired, and supervised a bunch of them, and I even hired some of the lawyers advising the State these days, so I kinda’ know the game.

The governor has taken the “10 days” answer. That answer is legally correct and practically wrong. And that is the real issue here; there is nobody in the Dunleavy Administration that has even the slightest amount of practical experience running not just the State government, but any government of any size, anywhere. That was the problem with the Palin Administration; nobody had a clue how to run the damned thing. This one may even be worse because there aren’t many people left in State government who know how it is supposed to work.

Let’s say I’m an arbitrator or Superior Court judge and this issue is before me. The issue presented is whether the State “made every effort” to notify its permanent employees of impending layoff.   Now, on May 30, when the Legislature hasn’t passed a budget and most of its members are out gallivanting around their districts, I should, if I have a brain, think that there probably isn’t going to be a State operating budget the day after tomorrow.   If I’m in charge of stuff on the third floor of the Capitol or the 10th floor of the Juneau State Office Building, I might have some people really busy preparing layoff notices.

The right answer is to give them all, every one of them, layoff notices on Friday. They’ll freak.

My daughter was a State employee when Gov. Walker did it, and I well remember that call. I just told her that they were all a bunch of chickensh*ts and would never go through with it, so she shouldn’t worry. This bunch might just stumble into it. The people who do the most harm don’t really mean to.

I’m the kind of guy who would shut down the government; I would hurt some people. But, I would have started doing that months ago. I would have sent some single item appropriation bills over to try to fund the prisons, the cops, the courts, and the Pioneer Homes, and the like.

Maybe the union minions in the House would have passed them, maybe not, but it would have been on them. I’d have been really busy out making peace with the cops, COs, and the Courts. You need their good will to get them to come to work without pay and their confidence that you will take care of them.  And you need to understand that some of them will try to screw you hard just because they can, and you probably deserve it because you let it come to this.

Day after tomorrow it becomes a really dirty game; we’ll see who is up to it.

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. 

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Suzanne Downing had careers in business and journalism before serving as the Director of Faith and Community-based Initiatives for Florida Gov. Jeb Bush and returning to Alaska to serve as speechwriter for Gov. Sean Parnell. Born on the Oregon coast, she moved to Alaska in 1969.

Latest comments

  • Art, those soon to be layed-off state workers will be first in line to collect the maximum PFD dividend authorized. The irony, not really surprising, is that those state workers have spoken against even the lowest PFD dividend payout. My, how attitudes change when it hits their own pocketbook.

  • “…..the appointing authority shall make every effort to give written notice….”

    There is no way for the Governor to give written notice within the prescribed time frame based on the actions of our current legislatures lack of action.

    Let them go to court.

    I’m sure our governor has competent lawyers.

    The legislature would be left holding the ball if I were the attorney arguing for this administration.

    Unless they were arguing the case in front of an Obama……er I mean…..Walker appointed judge.

    • Don’t be naïve! You’re always before an “Obama appointed” judge in the Alaska Superior Court; the Bar and the Judicial Council don’t send conservative appointees.

      I always counseled my political principals to expect to lose at the trial court level. Few Superior Ct. judges know jack about employment law and they think the State can solve any problem with money, so they grant the injunction to buy themselves time to go research the issue. Of course the unions aided by their lapdog media screeches “We won, we won,” when they get an injunction and the media has headlines about how ‘Noble union defeated evil State.” When the case against the State gets dismissed a few months later the coverage is on page 30 in six point type.

      • With all due respect, Art….

        Until I moved to Alaska permanently 6 years ago (and luckily discovered Suzanne’s Must Read Alaska news site) I was truly an Alaska political virgin.

        In other words, I was a total zombie like 80% of the other Alaskans out there.

        In the meantime, I will be summoning the ghosts of Ted Stevens and Wally Hickel to try and save our beautiful state.

        It’s ironic, because these are not partisan issues.

        These are Alaska permanent stakeholder issues.

        Not brown, not white, not native, not anything divisive.

        To quote the late Rodney King after the L.A. riots:

        “can we all just get along? I mean, can we just get along?

        I digress.

        https://en.wikipedia.org/wiki/Wally_Hickel

  • The problem with any of the layoffs is that the State has always, and likely will always roll over and pay the laid off employees as if they had worked. I know, I know, how do you define work. Let just say work = present at the job site.

    • OK, that would sound good on talk radio, and is generally true of federal layoffs, but the State of Alaska hasn’t done any consequential layoffs and then call-backs to work in ages; never in my time there from ’87 -’06. In the instant case, the unions, or at least ASEA is postured to try to get paid if there really is a layoff with the dispute about how much notice is required. The union says they are entitled to 30 days and the Administration is saying 10 days; the contract language is vague enough to give an arbitrator or judge room to decide for the union. And, Hell, I probably wrote it.

  • You sound like a bad ass Art…seriously. I like the commentary ! But there is a problem with doing approval of agency budgets piece meal like you proposed. All that would do would empower the people who don’t want to honor the PFD payments as written ! If budgets were approved piece meal, one at a time by agency, then Gov. Dunleavey would have nothing left for negotiations if it comes to it !

    • I’m not offering it as some ongoing deal, but rather as a contingency measure to keep some truly vital functions running if the whole government isn’t funded. It’s kinda’ the same thing you do with strike planning or disaster planning and is often styled as “continuity of operation” planning.

      Under PERA certain groups of employees are designated as employees whose services cannot be done without for even the shortest period of time, notably police, prison, fire, and hospital employees, so you don’t worry much about losing their services unless things get so bad they’re tempted to strike illegally. Then with your non-represented employees on the job, you can at least limit the likelihood of death and destruction as the result of a work stoppage. My goal was always to get the supervisors and the labor trades and crafts employees under contract with whatever it took. Then I was willing to let the chips fall as they might with rest of them.

  • So much windbaggery.

    • I love my fans!

      • ….and we love you, Art.

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