Art Chance: First Amendment protects citizens from government, but when is a government employee just a citizen?

By ART CHANCE

Once again, former Assistant Attorney General Libby Bakalar is in the news as Gov. Mike Dunleavy and former Chief of Staff Tuckerman Babcock have filed a motion for summary judgment asking for dismissal of her suit for wrongful discharge from her State position.   

Bakalar in her spare time, and probably her work time as well back during the Walker Administration, writes a blog called “One Hot Mess.”   

I never read it because generally no lefty has anything to say that a sane, rational person would be interested in, but she said enough over the top stuff to get some attention in other media.  My observation was that she wasn’t very good at that thinking stuff, but had a good handle on profanity, obscenities, and references to body parts and bodily functions.   

I have my own reputation for a bad temper and a foul mouth to protect, but I’ll freely admit that she shocked me at times.

Bakalar, like all Assistant Attorneys General, is a partially-exempt employee, a political appointee. She did not work under a union contract and was only subject to some of the State Personnel Act.  

The general rule is that a State employee in the partially exempt service can be dismissed for any reason, no reason, but not for an illegal reason.   

The governor’s lawyers refer to her as an “at will” employee, but I quarrel with that characterization. I question whether any employee in Alaska is truly “at will,” and certainly no employee working in the highly regulated and rule-bound world of public employment is truly “at will.”   

The Alaska Supreme Court in its supreme magnificence concluded years ago that every employment contract in Alaska had an “implied covenant of good faith and fair dealing,” and they have a very expansive view of what constitutes a contract of employment.   

Basically if you have any sort of employment rules or procedures, you have a contract with the employee(s) subject to those rules and procedures.  At its essence, if a dismissed employee has the resources to get in front of a judge, the judge has the power to substitute his/her judgment for the employer’s judgment in concluding there was cause for dismissal.   

When I was with State labor relations I would happily countenance a six-figure settlement to avoid an Alaska judge and jury, especially in any jurisdiction outside Anchorage, and you had to be very careful even in Anchorage.   In cases against the State, Alaska juries don’t seem to realize that the money they like to give to ne’er do wells is actually their money.

Fortunately, I hope, Bakalar isn’t before an Alaska State court judge or jury, where she would be almost certain to prevail against an evil Republican Governor and his henchman at the trial court level and the odds would be with her before the Supreme Court in this Administration.   

We really do need to change the way we select judges and justices, but I haven’t joined the elected judges crowd – yet.   I grew up in The South and have no illusions about elected judges.  

Bakalar went to the Federal District Court for Alaska and is making a federal Constitutional claim that Governor Dunleavy’s request for and acceptance of her resignation violated her First Amendment right to free speech. She also made 14^th Amendment claims but I haven’t read her pleadings in enough detail to really understand the claim.   If she’s asserting she has a property right to her job, she doesn’t; the State Personnel Act is explicit in denying partially-exempt employees the right to appeal discipline or dismissal to the State Personnel Board.   

The fact that the State Personnel Act doesn’t offer any process to appeal a dismissal means that she has no due process rights to assert as a 14^th Amendment claim, see, e.g. Loudermill v. Cleveland Board of Education on due process rights for public employees. The U.S. Supreme Court says the 14^th Amendment doesn’t establish a right to process, but rather a right to such process as is established elsewhere. Even a merit system or unionized employee doesn’t usually get a get out of jail free card for a due process violation.

I’ve tuned up, disciplined, and even dismissed a number of State employees over the years for political and policy statements they have made. For the vast majority of State employees the rule is you cannot comment on politics or policy under color of office. If you identify yourself as a State employee or use your State job title, you’d best be on the same page as your supervisors or you may find yourself having an unpleasant meeting with some suit from the Department of Administration, though I’m not sure they wear suits anymore; the State has gotten pretty casual in the last decade or so. 

There hasn’t been enough litigation to establish just what the limits of giving indicia of your employment are; certainly wearing one of those vests that used to be popular, especially with the suck-ups, with your department or division name on it is enough to establish the employment relationship and that you are acting under color of office. I don’t know if a lapel pin with the name of your department or one of those little Alaska Flag pins with your years of service is enough to establish your connection with your official position.

In Bakalar’s case it was common knowledge, at least in Juneau, that she was a State Assistant Attorney General.   n any event, if you’re a Assistant Attorney General, the top rank of attorneys general, you are a public figure and your identity is inseparable from your employment. Your name is on appearance lines on pleadings that are public record, you are often contacted by the media if you handle controversial subjects. As an Attorney General V, it is your job to handle controversial or high profile matters; that’s why you are an Assistant Attorney General V, rather than an Assistant Attorney General II.   

She was open and notorious both in her political and policy commentary and in her identity as a high-level State employee. Her identity was inseparable from her State position.

Ironically, the controlling authority on First Amendment rights of public employees is a Ninth Circuit decision from a California case, Garcetti v. Ceballos, which involved the discipline of an Assistant Attorney General for his speech, which he asserted was protected First Amendment speech.   The court concluded that the attorney’s speech was inseparable from his identity as a policy level public employee. Consequently, his speech was not private speech protected from the government, but rather government speech from which the public is protected. Bakalar should read that decision.

It might surprise some of you that I was something of a loudmouth on public policy issues in the editorial pages of the Juneau Empire, though I almost exclusively restricted myself to Juneau local government issues and especially school district issues since I had kids in school.   

At the time, mid-1990s, I was a Labor Relations Analyst III in the Department of Administration. I represented the State in arbitrations, labor board hearings, and in contract negotiations with State employee unions. I had significant media coverage and would generally be regarded as a public figure in Juneau and to some degree even elsewhere in the State. I had about the same level of independent discretion in my job as Bakalar had in hers. I never doubted that my identity was inseparable from my position.   

At one time the Juneau Education Association was in bargaining with the Juneau School Board and both were asserting that their negotiations were confidential.  I disagreed and undertook to force them to bargain their labor agreement with me in the pages of the Juneau Empire; that’s how I first met Suzanne Downing.

Even though it wasn’t a State issue, I was unquestionably a State actor and anyone in Juneau who paid attention to State politics knew who I was. Consequently, I wouldn’t have dared to write anything about this issue without providing the disclaimer that the statements I made were a personal opinion as a citizen of Juneau and did not reflect the position or policy of my employer, the State of Alaska. The Knowles Administration and I hated each other, but they never dared challenge me about it.   

All Bakalar really had to do was preface her blog columns with a disclaimer that they were only expressions of personal opinion and most of this would not be an issue.  She could be so vile that another line of argument could arise; that her conduct was such that she brought her employer into disrepute, and there is a line of argument there, but it is a much heavier burden.

Fundamentally, the employment relationship for a partially exempt employee is a “satisfaction contract;” you continue to be employed so long as your boss(es) is satisfied with your performance.   A Republican Administration had every right to not be satisfied with Bakalar’s performance.   She vilified President Trump and a significant majority of Alaskans supported President Trump.   

It is also easy to argue that her tone and language, which had apparently been accepted by her supervisors in the prior administration, would bring the new administration into disrepute.

I see the fundamental issue here in all sorts of arenas; many Alaskans, maybe most, have a fundamental misunderstanding of First Amendment free speech.   The First Amendment only protects your speech from suppression by the government.  

If you are the government, as Bakalar clearly was, your speech is not protected speech. If you are dealing with a private person or entity, the First Amendment simply does not apply; the Constitution does not regulate private conduct.   

In my time with the State, I learned that this was a hard concept for many ideologically driven employees to accept, but I did get to send some of them shuffling out of the building with their personal stuff in a Xerox paper box.

Art Chance is a retired Director of Labor Relations for the State of Alaska, formerly of Juneau and now living in Anchorage. He is the author of the book, “Red on Blue, Establishing a Republican Governance,” available at Amazon.