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Whitmire: The Long Silly Saga of Kay Ivey’s Nuclear War
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Whitmire: The Long Silly Saga of Kay Ivey’s Nuclear War

This is an opinion column.

On Tuesday, Gov. Kay Ivey fired one man.

Veterans Affairs Commissioner Kent Davis did not resign to spend more time with his family. He wasn’t relegated to a job in the broom closet to draw a paycheck until he found something else.

Handed a letter in front of a roomful of supporters, Davis was fired — despite it being unclear whether Ivey even had the authority to do so.

It’s the latest development in a long, messy battle between state agencies that has so far resulted in:

(1) An agency director, Davis, charging a cabinet member with ethics crimes and the same cabinet member being cleared of those crimes,

(2) Davis, agreeing to resign and then make that promise,

(3) The Veterans Affairs Council defies Ivey by insisting that Davis stay,

(4) And finally, a minor constitutional crisis.

Yes, 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 if Ivey is still fit to wield it.

Food fight at the pig trough

Like other great wars, this one began with a small dispute.

Earlier this year, the Alabama Department of Veterans Affairs backed a bill to distribute $7 million in federal stimulus money to a handful of nonprofits across the state.

The Alabama Department of Mental Health, which would have helped distribute that money, freaked out. Officials questioned the credentials of some of the nonprofits

That set off a turf war between Veterans Affairs and Mental Health that escalated until Davis, the Veterans Affairs commissioner, filed a complaint accusing Kim Boswell, the Mental Health commissioner, her department staff and some lobbyists of committing ethical crimes.

I read the complaint from Veterans Affairs. While I’m generally optimistic about such liability, the complaint is vague, alleging “collusion,” and reads like a product of the My Pillow School of Law, where complaint and hurt feelings are prima facie evidence of wrongdoing.

Also, some alleged facts in the complaint—such as an appearance by an injured party at a public hearing—were not, in fact, facts. It didn’t happen and it was disproved with the video of the encounter.

The Alabama Ethics Commission saw things the same way and took the unusual step of publicly dismissing the complaint and acquitting those accused.

With the mental health commissioner vacated, Ivey then called for Davis’ resignation.

And this is where things get sticky.

Ivey might have said, “Mr. Davis filed a false ethics complaint accusing one of my cabinet members of crimes she did not commit, and I want his head for it.”

She didn’t, though.

Instead, she rolled out a list of flimsy accusations, accusing Davis of mismanaging his department.

But none of those things were particularly recent, which begs the question: Why fire him now? Apparently she really wanted to leave to file the ethics complaint. He just doesn’t want to say it.

And this is where things get even stickier.

Ivey did not name Davis. The VA Board will do this. She should know this as she also serves on that board. 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 begin, Davis agreed to resign at the end of the year, and Ivey agreed to let it go.

It could have been a peaceful end to a stupid fight, but it didn’t end there.

The VA board reviewed Ivey’s allegations against Davis, however, and found the allegations lacking. Ivey then called another meeting to fire Davis — a meeting she did not attend despite it being held right down the hall from her chapter office — but the board voted 3-2 to keep Davis.

Minutes after that meeting, the governor’s legal staff sent a letter to Davis informing him that the governor had reversed the board’s decision and fired him anyway.

“Supreme Executive Power”

How did Ivey fire him when that’s the board’s business?

Invoking something called “supreme executive power.”

Like many other state constitutions, Alabama’s constitution gives the governor “supreme executive power” and then does almost nothing to define what “supreme executive power” means.

Most governors seemed to have left it alone until about 20 years ago, when Alabama Attorney General Troy King decided he would no longer pursue gambling in Alabama. Then-the governor. Bob Riley appointed a gambling task force to do the job King refused, and the whole thing ended up in a confused mess before the Alabama Supreme Court.

The court ruled that the Alabama Constitution gives the governor “supreme executive power” to take over when other state officials fail at the job.

In her letter to Davis, Ivey said the board failed by not firing him.

And now she invokes this nuclear option to get rid of him.

But the problem with nuclear options is how often they end in mutually assured destruction.

anyone home?

Three weeks ago, Kay Ivey spoke to the Kiwanis Club of Birmingham, and soon after I started getting the calls I often get from such events.

She did not take questions, they said. She only spoke for a few minutes. She looked awfully tired, and when she finished, her staff quickly ushered her out of the room.

And they asked variations of the question that has followed Ivey through much of her administration: Is anyone home?

John Saxon was also at the meeting.

“They should, at the very least, have been able to answer a few questions,” he told me this week.

Saxon is an employment attorney, and now he’s Davis’ attorney.

He is threatening to sue the governor under Alabama’s ethics law for retaliation.

“If we do file suit, I’ll look forward to taking the governor’s deposition and seeing how she responds when it’s under oath and unscripted,” Saxon said Tuesday, minutes after the governor’s office delivered the letter to Davis.

When I spoke with Saxon later that day, he again said he was looking forward to taking Ivey’s deposition and would invite as many people as he could fit in the room to watch it.

There are legal barriers that the governor’s staff would likely put in the way.

But I’ve known Saxon for years. I saw him working in court. I read other statements he took. And I’ll say this with confidence: If Saxon manages to unseat 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 minute, desperate measure. It’s the button behind the glass that you press when nothing else has worked.

And that’s what happened here – nothing else worked.

Nothing else worked because Ivey’s staff didn’t count the votes before she called for Davis’ resignation.

Nothing else worked because they couldn’t convince the board that Davis should be fired.

Nothing else worked because Ivey is now accusing a public board of not doing its job when it was Ivey who didn’t show up for the meeting.

Nothing else worked, so they pressed the button, not knowing what might happen next.

Even mutually assured destruction.