By now, Gov. Mike Dunleavy’s “creative” use of his office is well known. Like him or not, it’s clear he uses public resources in ways that none of his predecessors have. He’s directed jobs and lucrative no-bid contracts to wealthy donors and their families.
He has also spent significant state funds on paid advertising pushing his partisan agenda. These ads promote payouts of the largest Permanent Fund dividends in the program’s history (regardless of the fact it would cause billion-dollar deficits and require massive taxes). Controversially, he also published ads attacking specific legislators. This led to Dunleavy being fined for violating the Executive Ethics Act.
Recently, Dunleavy filed for reelection, funneling state resources to those ends as well. For example, Dunleavy has traveled Alaska for “cabinet meetings” in various communities. He’s also overtly scheduling campaign fundraisers in those communities on the same dates — meaning we Alaskans are subsidizing the travel and lodging of Dunleavy and his staff as they campaign on the state dime. Making it even more obvious, a review of the “co-hosts” for these fundraisers doesn’t show significant local sponsorship — rather, the majority of the individuals “co-hosting” these events are his cabinet and senior staff. We’re not just paying for Dunleavy’s campaign travel, but also that of his entourage. And his cabinet’s presence at these events represents an opportunity for wealthy donors to directly access the entire Dunleavy administration. The Executive Ethics Act prohibits using state resources to subsidize a campaign — but who wants to bet on whether Dunleavy’s campaign is reimbursing the state for these costs?
Dunleavy would claim this spending is in Alaska’s best interests because his agenda’s success is important to the state. But the worst of example of Dunleavy misusing state funds is something that slipped under the radar of the press and others —and clearly works against the state’s interests. He’s forcing the state of Alaska to pay for his personal attorney to appeal a court decision holding him liable for the illegal firings early in his term.
Once elected, Dunleavy sent loyalty pledges to every state employee who it was within his discretion to fire. He did this regardless of whether their positions were related to policy or politics in any way. For example, prosecutors, psychiatrists, doctors, advocates for foster children, and many others were all required to sign the loyalty pledge. Two state psychiatrists refused to sign the oath, stating that their first duty was to the patients they serve, not Dunleavy’s partisan agenda. They were fired and later filed suit.
District Court Judge John Sedwick found these loyalty oaths and firings were an unconstitutional and illegal “political patronage scheme.” He further found Dunleavy’s actions were so far beyond the pale that he was not entitled to qualified immunity — making him personally liable for financial damages.
It’s important to understand what qualified immunity means. Qualified immunity is a legal doctrine protecting public officials from being sued personally for actions taken in their official capacities. This doctrine serves a logical purpose — after all, who would serve in public office if they could be sued by every person who feels wronged by an official action? However, the doctrine has limits. When an official takes action that blatantly violates “clearly established” statutory or constitutional rights, a suit against the official in their personal capacity is allowed. Typically, such actions must be egregious and clearly unlawful at the time they occurred.
In Dunleavy’s case, Judge Sedwick found the actions reprehensible enough that qualified immunity was waived, making the governor personally liable. Some might argue “of course a liberal activist judge ruled against Dunleavy” — however, they should remember this judge was appointed by Republican President George H.W. Bush and has served honorably for decades.
What happened next is particularly absurd. Dunleavy ordered the Department of Law to pay for his personal attorney’s appeal of Judge Sedwick’s ruling. The issue on appeal, however, is not whether Dunleavy’s loyalty oath and firings were illegal, but only whether qualified immunity applies. To be clear — if Dunleavy prevails on his appeal regarding qualified immunity he’ll no longer be personally financially liable. And if he’s not liable, the State of Alaska is on the hook.
That’s right — Dunleavy is forcing the State of Alaska to pay his personal attorney to work against the state’s interests. Dunleavy’s attorney’s sole mission is to put the state on the hook to pay damages for his misdeeds instead of him.
Certainly, there are those who support Dunleavy and many who don’t. Whether it’s his prioritization of a large PFD over all else, or his handling of COVID-19, there are a variety of opinions. But for those who support Dunleavy, think harder. Every fact stated above is true. So ask yourself, would you condone this misuse and abuse from a governor whose politics you didn’t support?
Scott Kendall served as chief of staff under Gov. Bill Walker. He is now an attorney in private practice.
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