You may think the firing of the commissioner of the Alabama Department of Veterans Affairs is of minor importance, although 400,000 Alabama veterans likely disagree with you. But a deeper question is at stake: What kind of government do we have in Alabama – a constitutional republic in which even the governor is under the law or an all-powerful state in which the governor is above the law?
The question is not whether you or I think the governor should have unlimited power to fire state employees. The question, rather, is whether such power has been delegated to the governor by the Alabama Constitution or by a valid statute. Indeed, landmark constitutional decisions often turn on local and specific sets of facts.
Let’s recount recent happenings:
In July 2024, Commissioner Kent Davis, a retired Navy Rear Admiral, filed an ethics complaint at the behest of his bosses, the State Board of Veterans Affairs (SBVA), concerning state officials’ handling of a $7 million grant from American Rescue Plan Act (ARPA) funds. Davis was not certain an ethics violation had taken place but noted that he was required by law to bring it to light. The Ethics Commission concluded that an ethics violation had not been proven.
On September 5, Gov. Kay Ivey released a one-page letter to Davis demanding that he resign by 5 p.m. that day. Davis refused, saying he had done nothing wrong.
Under pressure from the governor and because of false information provided by the governor’s aids and a member of the SBVA, Davis reluctantly agreed to resign effective Dec. 31.
Leading veterans organizations — including the American Legion, the Veterans of Foreign Wars, and the South Alabama Veterans Council — then released statements supporting Davis and criticizing Ivey’s action. This caused the SBVA to meet on October 10 and unanimously pass a resolution urging Davis to reconsider.
The same day, Ivey demanded that Davis reaffirm his resignation. Davis took no official action in response to her demand.
On October 18, Ivey called an emergency meeting, demanding that the Board fire Davis, stating his lack of cooperation with other agencies, mishandling the ARPA grant program, filing a “frivolous” ethics complaint, failure to respond to her demand that he reaffirm his resignation, and loss of confidence by the governor as her reasons.
The Board met on October 22, with many members absent, and voted 3-2 to reject the governor’s demand. (We need to examine this vote more closely. Of the two votes to remove Davis, one was Ivey’s own proxy. The other said all the governor’s charges against Davis were false, but he was voting to remove solely because Davis had lost the governor’s confidence. In other words, the only Board member Ivey managed to persuade was Ivey herself.)
Later the same day, Ivey issued an executive order removing Davis as commissioner, effective immediately.
Does that mean the crisis is over? Not necessarily. Davis’s attorney is exploring legal options, including going to court to challenge the legality of the firing and filing a lawsuit alleging illegal retaliation against a whistleblower. Note that Ivey made his filing of the ethics complaint one of her grounds for firing him.
Does Ivey have legal executive authority to fire any state employee who incurs her wrath? If so, no state employee’s job is safe.
The Alabama Emergency Management Act, 31-9-8 (which this writer believes the governor abused during the COVID crisis) gives her no such power, so she must look elsewhere. Section 36-16-7 of the Alabama Code does give the governor limited power to fire state employees, however:
The Governor is authorized and empowered to remove from office and discharge from employment, with or without cause, any person who holds office or employment in any of the state executive departments and agencies by virtue of appointment by the incumbent Governor or any preceding Governor, except those employees subject to the Merit System provisions.
Under this section, if Davis had been appointed to his position by Ivey or a preceding governor, she would have the power to remove him.
However, the governor did not appoint Davis. He was appointed by the SBVA, pursuant to Section 31-5-6(a): “The board shall appoint a commissioner to serve for a term of four years subject to removal by the board for cause.”
Let’s put these provisions together. The governor’s power to remove state employees is expressly limited to those who hold office “by virtue of appointment by the incumbent Governor or any preceding Governor.” This excludes Davis because he was appointed by the Board, not by any governor. And the power to remove him from office is expressly delegated to the Board, not the governor: “subject to removal by the board for cause.”
Any claimed general power to fire is limited by these provisions. If the Alabama Legislature intended the governor to have unlimited power to fire, they would have just said the governor may fire “any person who holds office.” They would not have added the qualifying language, “by virtue of appointment by the incumbent Governor or any preceding Governor.” That language is in keeping with the legal principle, inclusio unius est exclusio alterius, the inclusion of one is the exclusion of others. And by the same principle, providing that the Board may remove the commissioner implies that no one else may remove him. And finally, providing that the Board may remove the commissioner “for cause” implies that he may not be removed without cause. And as to whether cause exists, the governor has thus far failed to prove her case.
The Alabama Constitution contains no provisions that I can find authorizing the governor to fire at will, but it contains clear provisions establishing that the State of Alabama has only limited powers. Article I, Section 35 declares:
That the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property, and when the government assumes other functions it is usurpation and oppression.
Clearly, the framers of the Alabama Constitution created a limited government with a limited chief executive, not a government of unlimited power.
This may be the reason Ivey didn’t fire the State Health Officer despite widespread criticism of his handling of the COVID crisis. Until the law was changed Oct. 1, the State Health Officer was appointed by the State Board of Health, not the governor.
Many are urging Davis to contest his firing in court. I hope he does, for several reasons.
First, as a veteran myself, I know that Davis has done an outstanding job as commissioner. Alabama veterans overwhelmingly support him and are outraged that this public servant has been removed from office.
Second, if Ivey’s action goes unchallenged, it will establish the proposition that the governor has carte blanche authority to fire anyone for whatever reason she chooses.
Third, a lawsuit would involve depositions, interrogatories and testimony under oath that could reveal what is really going on here. Why is Ivey — or more specifically, someone in her office — so determined to get rid of Davis? Are they hiding something? Is there someone they are trying to protect? I’m not making accusations, but I’d certainly like to learn the answers.
Finally, as a Republican activist, I urge the governor to step up to the plate and stop this bizarre firing. Is it really a good tactic to make war upon 400,000 Alabama veterans, most of whom (at least up to now) vote Republican?
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu) and as Senior Counsel for the Foundation for Moral Law (morallaw.org). He may be contacted for speaking engagements at eidsmoeja@juno.com.
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819news.com.
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