Chip Hill: Kay Ivey ‘wrong on the law,’ says payments to Robert Bentley were appropriate

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Last week, we were all disturbed to learn that our tax dollars are being used to pay Robert Bentley’s lawyers in a case that heaped national shame and embarrassment on Alabama – and resulted in Kay Ivey assuming the office of Governor. In an al.com article, Ivey’s said the payments to Bentley were “appropriate.”

Kay Ivey is wrong! We are paying Robert Bentley’s lawyers when we don’t have to.

The law cited by Kay Ivey clearly states that there are limits to what must be paid when legal action is brought about by a governor’s willful, criminal misconduct. Robert Bentley’s shameful conduct certainly qualifies as willful misconduct. To date taxpayers have shelled out nearly 300k for Robert Bentley’s legal fees and that total could increase quickly and drastically.

The Alabama taxpayer has been paying Bentley’s legal fees when in fact those payment could have legally STOPPED in 2017.  (See below)

Kay Ivey either has a fundamental lack of understanding about the law, or she has gone out of her way to continue to pay the legal fees of Robert Bentley for immoral conduct that resulted in her being appointed Governor, when the state was not required to do so. At a minimum, Kay Ivey has not made any attempt to stop the payments to Bentley, nor has she made any effort to explain or address the law she incorrectly says forces the state to pay Bentley.

“There are too many unanswered questions surrounding this entire situation,” said Walt Maddox. “If she won’t debate or face the people and answer their questions, Kay Ivey must address this, and explain why we have been paying Robert Bentley’s lawyers when we didn’t have to. The last time a governor refused to debate or be fully transparent, the state ended up in one of its worst political scandals. We are paying hundreds of thousands of dollars for what we didn’t know Robert Bentley was hiding then, and the Bentley payments she approved but failed to disclose, proves we don’t know what else Kay Ivey is hiding now.”

Why Kay Ivey should stop defending Robert Bentley in court

According to law, the State of Alabama should not be paying lawyers to defend former Governor Robert Bentley in the lawsuit filed by former Secretary of the Alabama Law Enforcement Agency, Spencer Collier. Collier was fired by Bentley in 2016 because he wouldn’t cover up Bentley’s affair with Rebecca Caldwell Mason.

However, the State of Alabama is paying Bentley’s legal fees through a taxpayer funded self‐ insurance program called the General Liability Trust Fund, or GLTF, which provides liability coverage to state officials pursuant to Ala. Code §36‐1‐6.1 and Guidelines established by the Director of Finance.

The GLTF provides defense and indemnity only for “acts or omissions committed by the covered employee while in the performance of their official duties in the line and scope of their employment.” (The GLTF treats elected and non‐elected officials as “employees” for purposes of coverage.) It excludes coverage for personal misconduct outside the line and scope of official duties.

The lawsuit as originally filed against Bentley included nine counts, alleging wrongful termination, defamation, invasion of privacy, and conspiracy. On Nov. 9, 2017 the Court ruled on Bentley’s motion to dismiss, holding that the wrongful termination claims were based on official conduct occurring in the line and scope of Bentley’s duties as governor, and consequently would be dismissed on immunity grounds. That immunity determination depended on the same “official versus personal conduct” issue that determines coverage under GLTF.

The Court order was very careful to say that the remaining claims that weren’t being dismissed were based on Bentley’s personal misconduct that occurred outside the line and scope of the governor’s official duties. Therefore, after the court’s ruling, the lawsuit now includes only claims based on Robert Bentley’s personal misconduct. Accordingly, Bentley should be required to defend himself like the rest of us would, availing himself would of any personal liability insurance he may have.

Amazingly, however, even though the lawsuit has consisted only of personal misconduct claims ever since the 2017 ruling, and even though personal misconduct is not covered under GLTF, the state of Alabama continues to pay lawyers hundreds of thousands of dollars to defend Robert Bentley. And of course that’s on top of over $1 million it cost to investigate his wrongdoing in the first place.

Gov. Kay Ivey should end this fiasco immediately, and pursuant to her powers in §121 of the Alabama Constitution demand a written explanation from the Finance Director and Attorney General as to why it went on this long. In Riley v. Cornerstone (2010), the Alabama Supreme Court ruled that the governor is the ultimate authority as CEO of state government to control the state’s legal interests, even over the Attorney General. In this case, the state’s only legitimate legal interest in the Bentley case is to get out of it and leave the former governor to defend himself.

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Chip Hill is the Communications Director on the Walt Maddox for Governor campaign.

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