Byrne Believes He has Support from the Board; Lawsuits Forthcoming

MONTGOMERY, Ala., Aug. 6, 2007 -- Bradley Byrne, head of the two-year college system in Alabama, says he expects to have support for his proposed policies "in some form" on flextime and a ban on state legislators working concurrently in the system (starting in 2010) that will start to be formally discussed by the State Board of Education on Monday.  Byrne also says he fully expects lawsuits over his proposed policies.

The chancellor paid a visit to the WSFA Editorial Board on Thursday, Aug. 2, the day following a news conference at which he and Governor Bob Riley formally announced Byrne's proposed policies.  Byrne told the Editorial Board the condition the two-year system finds itself in, combined with the requirements in workforce development, adult education and the two-year college transfer function, does not allow him to move slowly.

Byrne says, "I would love to have the luxury to sort of take it very slowly and methodically.  It would certainly make my life easier.  I do not have that luxury. "

Byrne believes the vote on the policies will not be a 5-4 vote.  "I know these members of the Board very well because I served with them for many years and you cannot always predict what the Board's going to do.  They'll have a lively discussion on Monday, I guarantee that."

Byrne says he thinks he'll get more than five votes but is cautious, "They've never had to vote or talk about voting on a flextime policy.  But, I think we may have more than five. We might have 6 or 7 votes for this in whatever its final form is."

"Look, I know these former colleagues on the Board well enough where we may come out of that work session on Monday and there be some changes made.  And, that's part of the process.  I don't think this is going to be a 5-4 vote."

Byrne says he doesn't have problems with people who have opinions different from his.  He says opposing viewpoints, such as those expressed by some board members and the Alabama Education Association (AEA) are in his words "not an illegitimate point of view."

He acknowledges their views are "different from mine, but I'm okay.  Listening is part of the debate.  At least with the Board I get a chance to have myself heard, over in the Senate I didn't really have much of a shot."

The Flextime Policy

Byrne says the proposed policy on flextime "does not prohibit absolutely somebody from serving in the Legislature and that's not what the primary focus was.  It was the focus of having a flex policy that works throughout the system."

He told the WSFA group that under the proposed policy flextime could be used for family or personal health needs.

"But you can't use flextime to go off and work for somebody else.  Now if I were in front of a private sector group of human resources professionals, they'd all look at me like, duh, because that's what you expect in the private sector.  The public sector in Alabama I guess is a little different."

Byrne says he told his folks when they were developing the policy, "Let's quit thinking about the Legislature.  Let's think about how this will apply to all of our employees.  And that's where this came from and I said, "In my judgment, 10 days away from the job that we hired you for seems to be a gracious plenty.  You're away from us, not doing the job we hired you to do - you're somewhere else and getting paid for it and I think 10 days, or 80 total hours, is enough of that."

Byrne says there are nursing instructors in the system that moonlight as nurses and one of the system's employees is a county coroner, "if someone dies or gets killed in the middle of the day, he's got to go out and do his coroner thing."  Another employee is compensated for serving on an industrial development board.

Byrne was asked, as he had been on Wednesday, "How dare you tell people what they can do on their personal vaction time?"

Byrne said this may be one of those issues on which "the Board's going to have a disagreement with me, okay?  But that's what this is about.  I don't do this by fiat.  I put forward a recommendation out there and it gives the Board something to work on."

"I strongly believe that vacation time is something we give our employees because it's a benefit back to the system for our employees to be on vacation.  People need to take time off to recreate, to rest, to relax.  It makes them better employees, just to put it down where it's a benefit to us."

"And I don't see how it's a benefit to the system to have people out working for pay during their vacations.  That's my belief.  Now there may be some people on the Board that say 'no,  we want to allow them to take their personal leave time if they want to and go to work.'  And we could put that in as policy." 

But what the governor's legal staff told us yesterday is that under that ethics opinion a legislator can't take paid leave to work in the Legislature.  So, even if we did that, it wouldn't help the legislators.  It would help everybody else in the system, but not them."

Mary Bruce Ogles of the AEA said last week the chancellor and the governor have got it wrong.

"From reading the Ethics Commission ruling, it's our understanding that it says that an employee can use either their personal leave, their annual leave, their vacation time or they can have a flex schedule.  There are lots of different ways that they can serve in an elected position."

Ogles says she does believe the employer has a right to set the employment guidelines for his or her employees but in her opinion Byrne is "going above that...We think there are some positions, in fact a lot of positions, in the two-year college system that you can do the job that you have to do and still be a legislator.  It depends on the nature of the job."

The chancellor says of course the new flextime policy would have an impact on legislators because they are paid both compensation and expense reimbursement.  Although calling what legislators recieve an "expense allowance" is "fiction," according to Byrne.

"Having been one, I can tell you that the IRS treats that expense allowance as income and they tax it. The Department of Revenue treats it as income and they tax it."

"If you're away from our system as a legislator and getting paid, you fall under this policy and you have 10 days, or 80 total working hours, to use unpaid leave to go and do your legislative service."

Byrne says with the regular session being 30 legislative days and 10-15 committee days, it would require some sacrifice on the part of legislators, but they could make the system work.

"You may have to miss some days or you may have to miss parts of days, but you can still be in the Legislature and comply with this flextime policy.  You'd have to be very careful about the way you did it, but you could still do it. "

Told that the 10-day policy would "eliminate a lot of people from serving in the Legislature," Byrne says legislators outside the Montgomery area might "have to miss a number of legislative days" but they'd "still be in the Legislature."

When told the legislators were then not serving the people that elected them Byrne's response was:

"Well, doesn't that get to the heart of the issue.  Isn't there a conflict here.  You work for me and you work for your constituents.  You're doing it at the same time.  Somebody's losing.  Now I'm telling you who's losing - the system's losing, which means the people we're supposed to serve are losing."

Byrne was also asked how people with regular jobs could become lawmakers and "serve the state if their jobs won't let them do that."

The former state senator says with last session's pay raise "the part-time legislators are now paid more than the average Alabamian.  I mean they're making $49,000 something a year with an automatic inflator, which means at the end of the quadrennium they'll be making $52-53,000 a year.  So we can call it a part-time job, and it's a pretty significant part-time job, but it's paid like a full time job.  After they did that I don't buy the argument that you can't afford to serve in the Legislature.  It's not true."

Byrne says there is also nothing from preventing someone in the system from leaving the system, going to the Legislature, and then coming back into the system.

"You're eligible to reapply.  If you've got experience and we need some people, you're going to be considered pretty seriously."

Double-dipping policy

Byrne outlined the evolution of the second policy related to elected state officials serving in the system.  "This is the policy or a revised version of policy that the governor proposed to the Board back in April."

Byrne says under Governor Riley's earlier proposal the ban "goes into effect in 90 days from the day the Board acts on it."

"I know full well, I mean I've been around long enough I understand this, that we're going to get sued in all likelihood on both of these policies.  I'm absolutely convinced that the flextime policy is easily defensible in court.  This one is a little trickier because there are constitutional issues involved with holding public office."

"So, we have some very smart lawyers working for us and the governor has some very smart lawyers working for him and I said all right, I don't want to put a policy in front of our board that I know or you know based upon your research that is going to be struck down by a judge.  That's a waste of time and resources and I'm not interested in that.  So, the defect we found in the governor's policy was that 90-day trigger because it essentially tells somebody who's got a public office that they have to give up that office within the frame of their term."

"And so, the change we made to this policy, the substantive change we made to this policy is that this ban goes into effect at the end of everybody's term, which rids it of the constitutional issues. "

Byrne was asked about the impact of lawsuits most likely to be filed by the AEA and their impact on the policies.

"The mere filing of a lawsuit does not block the effectiveness. They'd have to go get a restraining order from the judge that would restrain the effectiveness of it.  At some point that issue gets up to the Alabama Supreme Court or if it's filed in federal court it gets up higher than that."

Byrne says if you're an educator at a public institution in Florida, Georgia, or Mississippi "you cannot serve in the Legislature...If you go around the country you'll find they've got state Hatch Acts in many states around the country.  This is not unusual.  It's just unusual for Alabama."

In Mississippi, legislators are prohibited from employment at public schools and colleges during their terms of office.

In Frazier v. State of Mississippi, 504 So. 2d 675 (Miss. 1987), the Mississippi Supreme Court found that three state legislators were unlawfully employed in public education, two as university faculty members and one as a K-12 public school teacher.

The Court asked "how a state employee holding down a full-time job, in which he was paid the same salary as all other state employees similarly employed could find time to also serve in the Legislature. If a private business can afford for one of its members to serve in the Legislature, that is one thing. A full-time employee of the state is something else."

"This is not something that is unconstitutional.  The federal government has it, it's called the Hatch Act," says Byrne.

"So, this is not something that you can't put out there and uphold as a matter of public law.  My concern was that if you do it in the middle of somebody's term is there some constitutional argument there and we were concerned there was so we just took it out, took out that provision."

"This gives everybody fair warning, three years, and people can run at the end of their term, but they have to make up their minds.  Byrne says at that point it's either "I'm running and I'm going to have to give up my job or I'm not going to run because I want to keep my job."

Byrne was asked what would happen if the policy goes into effect and a legislator says he's not giving up his seat in the Legislature and he's not giving up his job with the system, "What will you do to somebody like that?"

Byrne says the legislator would "be in violation of the Board policy and he'd be terminated.  One of the things I've been doing around the system, not about this issue but about a lot of other issues, is making it very clear to the presidents and the people in the system, we will abide by the Board's policies.  I don't care who you are, we're going to do it.  And if you're not ready to do that, you need to be ready to be terminated."

"And we've had some interesting discussions.  There's some policies that some of our presidents don't like.  One of them said, "Well can we change the policy?"  I said, "Not while I'm chancellor."  So we're going to abide by these policies and that applies to all us us, whether we're in the state Senate or not."

Byrne says he has good friends in the Legislature "and that's not an easy thing for me to say."

One of those members, Senator Quinton Ross (D-Montgomery) says it's all politics.  "With this proposal, I don't care what anybody says.  I don't care how much people try to claim that they're attempting to clean something up so to speak - this is all political.  Because how are you going to decide after the voters have decided.  People knew exactly that I was an educator when I took my role as a state legislator.  So now what you're doing is impeding individuals' opportunity to send who they think is the best candidate to the Legislature...This is something that I've built my career on, being an educator, and now I have to choose?"

"It's unfortunate that at the heart of all of this is what I see as a political motive and the bottom line is a push to have a Republican takeover of the Legislature.  The governor failed in his attempt when he tried to organize and this is just another attempt.  If you take certain individuals out of the equation it becomes that much more likely (they can) accomplish the goal of a Republican state Legislature."

Byrne says he believes there's been abuse in the system.  "I don't think it's potential.  I think it has been abused or I wouldn't have proposed it."

"I've got plenty of real fights.  I don't need symbolic fights.  You know what I'm dealing with. I've got plenty of major, big time things that I've got to do that I don't need to be going off doing symbolic things. "

What might Happen in the Legislature?

Byrne acknowledged that even if the Board votes to pass the policies in some form on Aug. 23 the Legislature could eventually come along and override the policies.  But he doesn't think that will necessarily happen.

Byrne was asked, "With so many educators in the Legislature considering the fact they haven't passed it already which means that they're against it, how do you know that won't happen?"

Byrne asked, "How do you know they're against it?" and was told "Well, they didn't vote for it," to which the former state senator replied.  "They never had an opportunity to vote for it."

Byrne says the governor's proposal was not allowed to come to the floor.  "The leadership has kept it from coming to the floor.  And, the reason the leadership kept it from coming to the floor was because if it had to come to the floor and people had to take roll call votes on it, I don't think you'd see a majority against it."

"And, if they bring a piece of legislation to overturn this, I think you will see a filibuster against that piece of legislation and you know what it takes, what kind of a vote it takes to override a filibuster and I don't think there's going to be enough votes to override a filibuster.  I may be wrong,  but particularly in the House, I've heard from a number of Democratic House members that said we are not going to try to undo your policy because it's the right thing."

The chancellor was told the Senate would be the problem to which Byrne replied, "If I kill it in the House, I don't care what happens in the Senate...Now I'm thinking like somebody that's not in the Senate any more."

Byrne was asked about the Democrats in the Senate trying to woo those members back into the fold who had voted with the Republican minority last time and Byrne responded, "Don't be so sure about that Democratic majority.  Don't be so sure about that.  They've got to get to the point where they've got 21."

Capitol Insider Eileen Jones reminded Byrne the Democrats now have 19 with Sen. E.B. McClain moving back to the Democratic fold.  "Last time I checked 19's not 21," says Byrne which brought another laugh from around the table.  "I'm not being funny I'm telling you.  I've lived over there.  I've seen it when they were at 20 and they couldn't get 21 and they were putting pressure on people and pounding on the table and some of the people that I know that they're going to be pounding on are people that are impervious to that.," says  Byrne.

One thing that could cause Byrne some grief in the Legislature that is not directly tied to the policy proposals is his recent actions related to House member and former president of Bishop State Rep. Yvonne Kennedy.  Byrne recently sent Kennedy a strongly worded letter expressing his dissapointment in the fact she did not follow his directive to fire an employee, David Thomas, who had been convicted of a felony.

Byrne basically took back previous agreements with Kennedy that would have allowed her to have an office on campus and secretarial support for writing a history of the school.  She now has to get permission from the interim president, Dr. Jim Lowe, before coming onto the campus and she was warned by Byrne not to interfere in the operation of the school or he would take away what little access to the school she had left.

"Now she's a legislator.  She's been around a long time.  She's not going to like that.  I understand there's going to be some retaliation in the future.  I'm prepared for that.  I don't think it will be against the colleges.  I think it will be against me or the department, but at some point you just can't let people run over you.  You've got to stand up and say, "No," and that's what I did.

One area Byrne might feel the heat is in the allocation to the system in the budgetary process.

Not at the Table

Eileen Jones says she has been hearing from legislators that if education is so important in this state, they, educators, bring to the table insight that others don't have and that if you really do want to improve education, then you need them at the table.

Byrne responded by saying, "Well, do you have to be in the Legislature?  Do you think that Paul Hubbert is not at the table? He owns the table.  I'm just telling you the way it is.  That is a specious argument.  They are definitely at the table and the people of this state feel they're too much at the table because they work for the schools and they serve in the Legislature and vote on their pay and vote on laws that deal with their benefits."

"I mean one of the most painful spectacles I ever saw in the Senate, I led a filibuster for two weeks in 2004, you've probably forgotten this because filibusters all run together, over that change to the Fair Dismissal Act.  The Fair Dismissal Act, if I want to terminate somebody, I have to send them a letter saying I intend to terminate you, you've got 20 to 30 days to come in here and give me your take.  Now, if somebody's committed a felony and I do that, I still have to give them 20 to 30 days. "

"And after I give them 20 or 30 days, if I still terminate them, they can appeal to this arbitrator from the federal arbitration/mediation service and meanwhile I still have to pay them even if they've committed murder.  That law's obsurd.  We have educator/legislators en masse voting for that.  Why?  Because it protects them.  It's wrong for them to do that.  And if you go out to Wal-Mart and pull people off the street and ask them, I guarantee you 9-out-of-10 if not 10-out-of-10 are going to see it exactly the same way."

"So, I hear their argument but it just doesn't wash with me and I don't think it washes  with the average person."

"We had a very interesting bill that came up in the last session that would have banned gill netting in Alabama waters.  There is a relatively small group of people that make their living off of setting out these several hundred feet gill nets to catch every fish above a certain diameter.  And, a lot of the conservationists say it's ruining our fish supply."

"There's nobody in the Legislature who's a gill netter.  But by golly the gill netters came up here.  I'm telling you, you tell me the gill netters weren't represented.  So I don't buy the argument that you have to be a member to be at the table.  That's not true."

How to Fix the Legislature 

Since the Editorial Board had gotten off into the topic of the Legislature, Byrne was asked how he thought some of the general problems in the Legislature, particularly in the Senate could be resolved.

"I don't think you change the Legislature until you change the people.  I don't think the behaviour you see in the Legislature has as much to do with partisanship as it has to do with people that don't know how to or at least don't act right."

"I don't think the language that I heard on the floor of the Senate this year is appropriate and I've told several members of the Senate that, some of whom are friends of mine.  I don't think that language is appropriate, ever.  I don't think it's appropriate for the majority to keep everybody up all night guessing when they're going to come back in and turn on the lights and try to start having a meeting.  If you want to get bad decision making, keep people up all night, wear them out, and get them irritable.  Then sometimes they get into fights with one another.  Duh."

"I don't think you can expect the Senate or any legislative body to work together until the majority understands there are some rights in the minority and lets the minority have a proportionate share of bills and things like that.  Not a majority of the bills, not a majority of seats on committees, but proportionally."

But I come back to the interpersonal thing.  You know, what you learned in kindergarten.  Respect one another.  Be polite to one another.  Listen to one another.  You don't have to agree.  I don't have to agree.  I was perfectly accepting of the fact I would go in there, put a bill out there and they would vote on it and the majority would vote against my bill.  That's democracy.  But to prevent all of my bills from coming up, that's not democracy.

"I think it is vindictive.  I think it's personal.  Let me just say this.  I don't think any of it was personal to me.  It was personal among some other people and I just got caught up in it.  And I saw the people's business not getting done as a result of that and that's a shame."

"I think it's a function of some specific personalities.  It's not going to change until you change the personalities.  I don't care what label you put on them, Democrat or Republican.  It doesn't matter.  They're going to act that way and things are going to happen that are inappropriate."

"Leading's not always insisting on getting your own way.  We learned that in kindergarten too."

"I loved serving in the Senate.  I know that sounds crazy.  I loved it.  I miss it.   It's an important body.  I enjoyed doing it and I hope it will fix itself so it can do what it needs to do because the state needs it to do that."

Chancellor Byrne had plenty to say on other important issues related to postsecondary education and you will find those stories below.

Reported by:  Helen Hammons