Alaska Employment Law

Are there are any limits on an Alaskan Governor’s right to fire a Commissioner of one of the executive departments?  The Employment Law Section of the Alaska Bar Association discussed this issue on Wednesday, November 5th.

Article 3, § 25 of the Alaska Constitution (”Department Heads”) provides:

The head of each principal department shall be a single executive unless otherwise provided by law. He shall be appointed by the governor, subject to confirmation by a majority of the members of the legislature in joint session, and shall serve at the pleasure of the governor, except as otherwise provided in this article with respect to the secretary of state. The heads of all principal departments shall be citizens of the United States.

“At the pleasure of” is synonymous with “at-will.”   See Will v. State, Dept. of Corrections, 75 P.3d 1030, 1033 (Alaska 2003).  Under Alaska’s version of the covenant of good faith and fair dealing, at-will employees enjoy a modicum of job security. Their employers can’t fire them for reasons that violate public policy. See Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123 (Alaska 1989).  At-will employers also must be consistent in their application of discipline to similarly-situated employees. Mitchell v. Teck Cominco Alaska Inc., 193 P.3d 751 (Alaska 2008).

Setting aside the latter ground (few termination scenarios at upper executive levels will be sufficiently “similar” to require consistency), the nub of the question is the public policy exception to at-will employment. Some hypotheticals: May the Governor fire a Commissioner because the Commissioner refused to violate the Alaska Ethics Act, or the Alaska Personnel Code? What if the Governor fired a Commissioner in violation of the Human Rights Act ?  (The Alaska Human Rights Act, unlike its federal counterpart, Title VII, contains no exemption for high-level political appointees.)

Gov. Palin’s attorney, Tom Van Flein, said the issue of the Governor’s authority over Commissioners was “the first question we looked at.” He re-phrased the issue: Is there a public policy exception to constitutionally mandated at-will employment?  Van Flein referred to the controversy over the Attorney General Gonzales’ firing of eight U. S. Attorneys for, allegedly, refusing to engage in unwarranted prosecutions. Van Flein appeared to accept some limitations on the Governor’s right to fire department heads, but certainly didn’t concede it.

Tim Petumenos, the Personnel Board’s Independent Counsel, appeared to agree, too, that the Governor doesn’t have unfettered right to dismiss a Commissioner. He, too, posed the hypothetical of a governor who violated the Ethics Act.

Monegan didn’t claim immunity from termination: 

Mr. Monegan does not challenge the Governor’s right to terminate him as the Commission to the Department of Public Safety. Like all cabinet officers, Mr. Monegan served at the pleasure of the Governor and he could be discharged for any just reason or for no reason at all. But the Governor does not enjoy any constitutional or other legal right to make untrue and defamatory statements about her reasons for terminating Mr. Monegan.

(Brief at p. 3).

Monegan hasn’t asked for reinstatement, and no one in attendance at Wednesday’s ELS meeting was prepared to argue that reinstatement was an acceptable remedy for an illegal gubernatorial termination. The dispute, rather, centered on the availability of a name-clearing hearing (discussed in yesterday’s post), and, to a far lesser extent, the availability of damages.  

Comment: One way to look at the issue is to ask whether the public policy underyling Art. 3, § 25 trumps the public policy identified in the Ethics Act (or the Human Rights or the Personnel Act).  Maybe that’s too blunt of a question. Maybe the constitutionally-based public policy trumps the remedy of reinstatement, but not the less intrusive remedy of damages.  On the other hand, if the public policy embedded in the Constitution is the Governor’s right not to be compelled to testify about her reasoning process in firing Commissioners, then the intrusiveness of the remedy is irrelevant.

A separate issue is justiciability.  Does Malone v. Meekins, 650 P.2d 351 (Alaska 1982), bar the courts from intruding into gubernatorial decisions about Departmental heads?

Note/disclaimer: My characterizations of the parties’ positions are based on my notes and recollection.  The Alaska Bar Association tape-recorded the meeting, and will shortly make that tape available.