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Can she do that?
That’s the question that remained Tuesday evening following an eventful, if confusing, afternoon at, of all things, a meeting of the State Board of Veterans Affairs, where board members voted to retain Alabama Department of Veterans Affairs commissioner Kent Davis despite a motion by Gov. Kay Ivey to have Davis removed immediately.
Less than an hour after that vote, citing authority granted her office by the state constitution, Ivey took matters into her own hands and removed Davis.
“Today, the State Board of Veterans Affairs failed to remove you immediately despite the ample legal causes I have publicly and repeatedly identified as justifying your removal. I therefore determine that your immediate removal is necessary to ensure that going forward, the laws governing the Department of Veterans Affairs will be properly executed and enforced,” Ivey said in a letter to Davis.
A few minutes later, Davis’ attorney, John Saxon, told gathered media that he wasn’t sure she could do that. Also – and not for nothing here – he said Davis likely has very good cause for a retaliation complaint against Ivey.
You have to admit, the whole thing seems a bit … weird … right?
In case you haven’t been following along, this ordeal certainly didn’t start on Tuesday. Instead, it began during the previous legislative session, when a former Veterans Affairs board member, John Kilpatrick, and others working on behalf of veterans, became annoyed by tactics supposedly used by the Alabama Department of Mental Health to allegedly block Veterans Affairs from receiving some portion of funds dedicated to mental health services.
Kilpatrick, and others, convinced Davis that the tactics utilized by ADMH and its commissioner, Kim Boswell, were in violation of the state’s ethics laws. How, exactly, that was the case is unclear, and even Davis, who eventually agreed to file an ethics complaint against Boswell and others, admitted he was unsure that the allegations in the complaint were violations of law. But he also said he was bound by state law to file the complaint. (The Ethics Commission ultimately found no cause to investigate.)
Multiple people with direct knowledge of the situation and the resulting dispute between the two agencies said the allegations contained in the complaint seemed to amount to little more than the usual political maneuvering that occur every session, as various agencies work to get their share of limited funds.
In August, though, that ethics complaint from Davis was leaked. And things blew up real good.
In early September, after publicly calling the ethics complaint “frivolous,” Ivey removed Kilpatrick from the state board and formally requested Davis’ resignation. In doing so, Ivey listed several reasons for the request, including that Davis and ADVA mishandled funds from the American Rescue Plan Act and that he failed to consult with her office over the inter-agency dispute with ADMH and Boswell.
In a video statement a day later, Davis refuted those allegations, saying that he had an obligation under the law to file the ethics complaint after being presented the allegations by his board members and that all ARPA funds were accounted for. His board would later back him on both counts.
Regardless, a few days later, after meeting with Ivey and her staff, Davis agreed to resign at the end of the year. And the matter appeared to be put to rest.
But a couple of weeks ago, following a report from a veterans affairs subcommittee that found no wrongdoing in Davis’ handling of ARPA funds, the board voted to ask Davis to reconsider his resignation.
It was a direct rebuke of Ivey by the veterans board and she later referred to it as “orchestrated theater.” And apparently the whole thing didn’t sit right with her, because a week or so later, she dropped a letter scheduling a special called meeting of the board and asking that it remove Davis immediately, instead of allowing him to finish out the year.
In that letter, Ivey again accused Davis of mishandling ARPA funds and also of “disseminating” the ethics complaint to numerous people in an effort to use the process as a weapon against ADMH. Ivey also said Davis had lost the confidence of one board member, herself and some state lawmakers and said that he had pressured board members into voting to ask Davis to rescind his resignation.
In a lengthy response, Davis denied each allegation and provided supporting evidence to refute Ivey’s allegations. Notably, he revealed that Saxon had been in consistent contact with Ivey’s chief legal advisor, Will Parker, throughout this ordeal and that he believed everything was progressing according to the agreement that was reached for him to retire at the end of the year.
And so, that’s where we were entering Tuesday and the board’s ultimate vote against Ivey. Which, honestly, shouldn’t have come as a surprise to Ivey or her staff, given the vote a few weeks ago to ask that he rescind his resignation.
Yet, it did seem to surprise them. Because why else call the meeting? Why else ask for the vote?
But the biggest question of all is: Does Ivey have the authority to simply fire Davis after that vote?
I have no idea. But it would certainly seem illogical, wouldn’t it?
Davis is appointed by and serves at the pleasure of the State Board of Veterans Affairs, of which Ivey is the president and a voting member.
If Ivey has the authority to act unilaterally, as she has, then why is she even part of the board in the first place? Why did she call the meeting and ask that the board hold the vote?
In her letter to Davis informing him of his immediate removal, Ivey cites the “supreme executive power” granted to the governor under the state constitution, and states that it grants the governor the authority to act to enforce the laws of this state due to action or inadequate action by a subordinate.
But there’s a fairly large hole in that logic: She has never accused Davis of violating any laws. And he certainly has not been found by a court, or by his own admission, to have violated state laws.
Look, I’m no attorney, obviously, and laws and courts get all weird when determining the outcome of disputes between government agencies and elected officials, so who knows what the outcome of all of this might be. But as just a regular person observing this, there’s one other question that keeps popping up.
If Ivey has the authority to just fire him, what was the point of all this stuff for the past two months?
