Mac Warner has been a hard-working, productive Secretary of State.  Under his leadership, the office has made significant improvements in the state’s business registration process, worked with county clerks to clean up voter rolls, added technology so military personnel overseas can vote via app, and focused on election security.

Warner and his team have actually modernized the functions of the office rather than using it as a stepping stone for another political opportunity.   However, Warner is now in the midst of a serious controversy that may not end well for him or West Virginia.

When Warner took office in January 2017, he fired 16 employees and two more were fired months later.  Warner argued then, and continues to point out, that these were at-will employees who could be dismissed without cause and replaced with people of his own choosing. “I hired based on competency and I terminated for lack of competency,” Warner said in a letter to the state Board of Risk and Insurance Management (BRIM).

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Secretary of State Mac Warner

However, a dozen of those dismissed employees hired a lawyer and filed suit, claiming Warner fired them for political reasons. Warner is a Republican.  Warner said nine of the individuals who sued are Democrats, two are independents and one is a Republican. Ben Salango, an attorney for the former employees, says Warner subsequently hired 23 people and all were either Republicans or had close ties to the Republican Party.

Four of the 12 who were fired have now settled out of court for a total of $1 million. That’s a big number, and it stands out, especially at a time when the State Senate is about to begin impeachment trials for four current and former members of the State Supreme Court for wasting taxpayer dollars.

Warner blames BRIM, saying the insurance company for all state agencies was too quick to settle rather than go to court. “Any settlement in these cases sets a terrible precedent in several ways; it tells bad employees if they are fired for any reason to bring frivolous lawsuits and drive up the costs for the State—at a time taxpayers are fed up with overpriced couches.”

Warner says BRIM averages payouts of $12.5 million a year in settling employment-type lawsuits.  Well, either some state agencies do a poor job of properly managing firings or BRIM is risk averse to going to trial or both.

In Warner’s letter to BRIM he insists there be no more settlements in the remaining eight cases without his written permission.  He wants to take the cases to trial, and believes a jury will uphold his firings. What a jury will do is unknowable, which is why insurance companies often prefer to settle, especially after weighing the cost of lengthy litigation.

It is understandable that Warner wanted his own team to help him run the office, and it is appropriate to replace top policy people within an agency with those who share your vision.  However, a house cleaning of 16 people, some of whom are members of protected classes, was bound to trigger litigation. Warner has a law degree and served in the U.S. Army’s Judge Advocate General Corps and should have seen that coming.

Warner is now banking on trials of the remaining eight former employees to vindicate his decision to fire them.  That’s a risky proposition, especially since in four earlier cases an experienced insurance adjuster has already calculated that it is a risk not worth taking.

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