Warner Wrong in Firings
The Wheeling Intelligencer recently asked this question: “Was West Virginia Secretary of State Mac Warner acting illegally when he fired and replaced 16 employees in his agency not long after taking office in January 2017?” This is a good question and I would like to take a stab at answering it.
Warner beat the former WVU Mountaineer in the 2016 election. Very soon after taking office, he attempted to replicate what the one and only Arch Alfred Moore did when he took office in 1969, i.e. to reconstitute the “spoils” system. One of the issues in the 1968 election had been whether public employees should be permitted to have a union. Jim Sprouse (who was heavily backed by Miles Stanley and the AFL-CIO) was firmly on the side of this proposition. Shortly after Moore was sworn in, the employees of the State Road Commission went out on a wildcat strike to force union recognition.
Unfortunately for the strikers the walkout coincided with a snowfall and this gave Moore the perfect reason to fire the SRC employees. He invoked the great dictum of the Mayor of Boston in taking similar action in the 20s: “There is no right to strike against the public interest.” A suit for reinstatement was filed in federal court but it went nowhere. Back then the Fourth Circuit in Richmond was the great bastion of judicial conservatism, the exact opposite of what President Trump recently had to say about the Ninth Circuit. (Incidentally, the Mayor was Calvin Coolidge who went on to be president.)
The Secretary of State based his actions on the theory that the office’s employees were “at will” and under the common law could be fired for any reason or for no reason. This general theory from the civil law was made even stronger by another legal theory extant until the 1970s, which went by the name of “sovereign immunity”, i.e. one can’t bring a suit against the government because the King of England couldn’t be sued (without his consent.)
As a matter of federal law, all this was changed in a series of cases called the “Cook County cases,” which dealt with political firings in Chicago. For those who look back fondly on the 1960 Democratic primary here in West Virginia which started John Kennedy on the way to the White House, I would commend Theodore White’s seminal “The Making of the President” (1960). In discussing that election, White says that outside of some areas in the deep South, the most corrupt political practices in the country occur in Chicago and West Virginia.
The Secretary’s ill-advised decision to fire these people is going to cost taxpayers over $4 million, which is considerably more that all the redecorating of the chambers of the justices of our Supreme Court, their catered meals, trips back home and to golf outings, etc. Now Warner blames BRIM (the State’s Board of Risk and Insurance Management) for settling the cases without his consent, a course of action open to nearly all insurers. It’s their money. They can decide what cases they want to settle and what cases they think should be settled. This is cold-blooded actuarial work. I am confident that if Warner had been willing to accept personal liability if he lost the case, BRIM would have had no objection.
Recently Warner has — in the Wetzel County vernacular — been screaming “like a stuck pig.” One published report was to the effect that he was “furious,” that he wanted to go to trial, and that he verily believed that he would have prevailed. There is one question that should be asked here: WHO TOLD THE SECRETARY OF STATE THAT THIS WAS A GOOD IDEA? For the past few decades, the 14th Amendment to the U.S. Constitution has been consistently interpreted to give people fired for political reasons a right to sue for damages. Surely, the former lieutenant colonel, a man unlike Governor Moore with no legal background, consulted with competent legal authority before he decided to fire these people.
If Warner didn’t, he should be impeached. If some lawyers advised Warner that he could do this, then BRIM should seriously consider suing these persons for malpratice.
H. John Rogers