Judge Sedwick says state attorney could not be fired by governor due to bad attitude, but could have been fired for vulgar blog

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Firing someone from the Executive Branch for a disrespectful “poke in the eye” letter of resignation is not enough, according to Federal Judge John Sedwick.

If Gov. Dunleavy’s chief of staff had only fired state elections attorney Libby Bakalar because of her vulgar and partisan blog, that would have been OK.

Alaskans have a right to expect their election lawyers will be fair and impartial, the judge wrote. And in her many extreme and vulgar blog and social media posts, Bakalar attacked not only President Trump, but insulted all who voted for him — the 54 percent of Alaskans who cast their ballot for Trump in 2016.

As the senior elections lawyer for the state, Bakalar could have been fired for using awful judgment that was likely to hurt the public trust in the Division of Elections, where she had a key role in advising Lt. Gov. Byron Mallott. But Sedwick didn’t like the way that Chief of Staff Tuckerman Babcock fired Bakalar, and therefore has found her firing unlawful.

“That is to say, frequent and widespread partisan commentary by an elections attorney is reasonably likely to undermine the public’s trust in the integrity and credibility of elections,” Sedwick wrote.

“While Defendants now rely on the unprofessional content of Plaintiff’s blog, which contained irreverent and vulgar language, that concern was not mention by Babcock during his deposition. Indeed, he specifically refrained from suggesting he knew anything specific or particular about her blog or its contents. Rather, he maintained that he just generally was aware she had strong opinions and a blog,” the judge said.

“However, Defendants, who made the decision to fire Plaintiff without consultation, failed to show that they had any awareness of this particular concern, or that they acted in response to it rather than a dislike of her personal views.

“Without an adequate showing that Defendants actually were motivated by a reasonable concern for the potentially disruptive effects of Plaintiff’s publicly espoused political opinions, the court must conclude that her termination ran afoul of the First Amendment,” Sedwick wrote.

In other words, Babcock should have simply cited Bakalar’s many coarse political rants as cause for her dismissal.

The judge seems unsure if Bakalar was a policymaker, and therefore she might enjoy some immunity for her extreme views, even while she was the key advisor to Alaska’s election system.

“In Biggs, the Ninth Circuit held that a city attorney operated as a policymaker in city government, because, even though the attorney was a subordinate, she presented reports to the city’s governing council on legal issues, worked on high-profile issues, drafted regulations and ordinances, and spoke to the press on occasion.136 These responsibilities, notably similar to Plaintiff’s, were enough for the court to find that she occupied a position where political alignment was a valid job qualification. Based on Biggs, it was reasonable for Defendants to think that a high-level assistant attorney undertaking the responsibilities she outlined in her resignation letter could be fired for political reasons. While this court ultimately concluded that Plaintiff’s position was distinguishable given her role as counsel to the Division of Elections, no existing precedent or body of persuasive case law would have made this conclusion readily apparent. That is, there is no existing precedent that placed this issue beyond debate,” Sedwick wrote.

The decision may be appealed to the Ninth Circuit Court of Appeals. As it stands, it’s a partial win for Bakalar, who is now an attorney for the City of Bethel, and a partial loss, as she is not able to hold the governor or Babcock personally liable.

The entire decision is at this link:

50 COMMENTS

  1. Sedwick is not a honorable person. I have known him for 40 years and seen him in situations where his integrity came into play. We golfed together and on numerous occasions I saw him cheat playing a game that depended on a player’s integrity. And he simply did not care when he refused to accept penalties or put down the correct score. So no surprise when he makes these inexcusable decisions.

  2. Ah yes, another example of Tuckerman Babcock’s lack of administrative technique. Why Governor Dunleavy put him the position of Chief of Staff is anyone’s guess. In less than a year, Babcock’s stunts, antics and propensity to engage in revenge and retaliation politics had the Governor subject to a recall campaign and largely stalled out some of Mike Dunleavy’s better ideas.

    The judge in this case provides the obvious road map by which Attorney Bakalar could have been discharged. Really, how hard is it fire an attorney anyway, especially one engaged in fairly obnoxious partisan conduct while tasked with dealing with the administration of voting?

    The judge correctly decided Babcock and Governor Dunleavy are not personally liable for Babcock’s lousy administrative technique, a ruling that will stick the citizens of Alaksa for fixing this cockup but also required to pay for the legal defense of this caper.

    Oh well, we get what we deserve in this little democracy. Good thing oil prices are up. I guess we can afford this kind of stooging around.

    • “Ah yes, another example of Tuckerman Babcock’s lack of administrative technique……..”
      I’m no fan of Babcock’s, but it appears to me that his ‘lack of administrative technique’ has just been out-staged by Judge Sedwick’s lack of common sense……..or is that just how “law” works? After all, every actor in this lousy play is either a lawyer, a politician, or both.

      • Read Art Chance’s comment, below, where he points out how this situation could have been handled without getting sued and then losing. Don’t blame the judge for upholding the constitution here.

    • Unfortunately, Bethel has to deal with this train wreck Bakalar. Who wants someone with her obvious lack of judgment and discretion representing their community? Wake up, Bethel! You can do better.

      • This judge has already pointed out who had the “lack of judgment” Wayne and it’s going to be expensive in both dollars and political power going into next election. Certainly Babcock will be blamed but the buck stops higher up IMO.

  3. Ok Babcock you got the way ahead. Execute it! Obviously she has lost her professionalism and frankly I for one feel she has impugned the good name of Alaska Elections as such her retention will lead to bias within the department. Time for her to go to Seattle or wherever…Caracas perhaps.

  4. I have tried to force a discussion on the Bethel Council Agenda.

    Bethel Council is every bit as Liberal as the Anchorage City Council.

    Each council has two disenters from the radial fear mongering left agenda.

  5. But Judge, she is vulgar AND has a bad attitude. How would you like your great grandkids reading her crap on the internet?? Hello…..Judge?

  6. With these judges whatever reason they gave, it would have been not quite good enough. So much for ‘at will employment’.

    • The judge applied a constitutional right based on Babcock’s goofball actions. Don’t blame the judge for this dustup.

  7. A 15-minute conversation with a Human Resources expert at the Dept of Law would have made this justified firing stick.

    But Babcock didn’t think to do that – or put much careful thought into anything during his inept term of leadership in the Gov’s office. Good riddance, both of you: Bakalar and Babcock.

    • All you’d have to do would be find “… a Human Resources expert at the Dept. of Law.” As I get the story, they went to the Department of Administration, Division of Personnel and Labor Relations and asked for a list of all “at will” employees. In my time, the answer to that question would have been, “there are none,” but my time has clearly passed, even though I hired some of the people who would have been involved in the decision.

      What they got was a list of all employees in the “partially exempt” and “exempt” services of State employment. That means employees who are exempt from some or all of the provisions of the State Personnel Act. That doesn’t mean that they are “at will” as most understand that term. Marine Highway vessel employees and teachers working for the State are in the exempt service and they work under union contracts with “just cause” provisions and binding arbitration. The partially exempt service includes all sorts who people who have no real involvement in policy making and thus can’t be considered to “serve at the pleasure,” a better term than “at will.”

      I don’t know if the information they were provided was in error, the result of a poorly worded request, or malicious obedience. Since I hired some of the people involved I sincerely hope it wasn’t the latter.

  8. All they had to do was walk in and say, “Libby, I’m sorry, but you don’t fit into our plans; can we help you pack?” Any reason, no reason, but not an illegal reason. No reason is best.

      • The Dunleavy Administration, and a lot of other conservatives/Republicans, suffer from the illusion that there are “at will” employees in Alaska. The closest you might get to a true “at will” employee is if you engaged a guy on the corner in front of Home Depot and promised him $20/hr. to do some task for you.

        The most you have there is a contract to pay him $20 for an hour’s work. If you promise him anything else or don’t pay him for an hour if he shows up, you’ve probably violated an employment contract with him. Most employers have all sorts of policies and procedures and promises of this, that, or another benefit.

        The AK Supreme Court in its supreme wisdom concluded back in the ’80s that every employment contract in Alaska has an “implied covenant of good faith and fair dealing,” and it takes very, very little for a judge to conclude there is an employment contract. What this really means is that some genius in a black robe gets to substitute his/her judgement for that of management.

        I racked my brain trying to think of one time we won a wrongful discharge at the trial court level and other than some we got stopped in motions, I couldn’t think of one. Frankly, if we couldn’t stop it in motion practice, I would authorize a six figure check to avoid facing a judge and jury.

        I always advised Republican principals that they would lose any dispute with an employee or a Democrat aligned interest group at the trial court level, so if they weren’t prepared to go to the AKSC, they shouldn’t start the fight. In my 20-odd years I can only think of one fight with a union that we won at the trial court level, and we never lost one at the SC level.

    • Art has this right. Easy enough to perform this way if you have any sense at all. Technique matters in administration.

      • Joe, thanks to you and Art for shedding light on this subject, however for the benefit of the rest of us heathen and unlearned I think the following stanza from Robert Service might apply.
        ” I’m not as wise as those Lawyers guys, but strictly between us two, the woman that kissed him and pinched his poke was the Lady that’s known as “Hot Mess Lou”

    • How is it that Bill Walker and every other Governor was able to change out exempt and partially exempt staff, but Dunleavy isn’t allowed? My take is that Tuckerman sold Dunleavy on a plan to rally the conservative base and made some of the firings like this political, along with reducing funding such as the $300,000 plus in funding taken from judicial in relation to abortions.
      That was just dumb.
      All they had to do was keep their mouths shut. Eliminate the PCN’s that you want gone. Reduce funding where needed, because that’s what we hired Dunleavy for. Save us money and reduce the bloated staffing in the Executive Branch.

  9. Here we go again with the “fair and impartial” nonsense. “The judge wrote, Alaskans have a right to expect their election lawyers will be fair and impartial” Why can’t they just speak the realistic truth for once? He could have at least said just said Alaskans are entitled to election lawyers who outwardly pretend to be fair and impartial while concealing their true ideologies. In fact, every judge has a reputation for existing somewhere on the scale between far left and far right. Everyone knows this fact but our entire culture talks otherwise. In my lifetime, I have yet to meet, or hear of, a truly impartial person .

  10. Here we go again with the “fair and impartial” nonsense. “The judge wrote, Alaskans have a right to expect their election lawyers will be fair and impartial” Why couldn’t he just speak the realistic truth by saying Alaskans are entitled to election lawyers who conceal their ideologies while outwardly pretending to be fair and impartial. In fact, every judge has a reputation for existing somewhere on the scale between far left and far right. Everyone knows this fact but our entire culture talks otherwise. In my lifetime, I have yet to meet, or hear of, a truly impartial person .

    • Yes, Wayne, just as the Marxist Nine on the Anchorage ass-embly are somehow “nonpartisan” just because they were not elected on a partisan ballot. A more rigidly partisan and dogmatically ideological group of people I cannot imagine!

      • Sorry, Joe. The only way to edit typos with this primitive beta commenting software to re-submit an entire new comment. Sometimes the original doesn’t get removed…. leaving the appearance of repetition. You see the software also shows replies to replies as weird 1″-wide by 8″-tall paragraphs justified to the far right.
        .
        By the way, I’m sorry if your involvement in the pseudo-impartial apparatus called our justice system causes you to be offended by my observations. That is not my intent.

      • Joe, I don’t believe my friend Wayne Coogan is as guilty of being redundant here as he is more likely the victim of technology. Fact is these damn gadgets in our palms sometimes cause us oldsters to blunder. Despite the redundancy Wayne’s point is well taken.

  11. Oh give me a break. Sedwick threw out the BS roadmap on how to properly fire her because he needed to allow other politicians, whom he aligns with politically, a way to fire thier political detractors. Don’t believe for a second if Babcock or Dunleavy would have cited her blog as reason for dismissal he would have ruled the firing was okay.

    • See Art Chance’s comment, above, on how anyone with a modicum of administrative skill could have handled the situation in a legal manner.

  12. If this obviously partisan & maniacally biased woman was allowed anywhere near the Division of Elections decision makers , whatever shred of confidence in our election integrity I had left just flew out the window. Unbelievable decision. All is lost.

  13. I can name the native people who were generationally economically damaged by biased firings. We’v got to limit our truth telling around here. Typical. Hey welcome new comers.

  14. This substantially raises the cost of state government. Incoming governors will still hire their own people but they will need to be much more reserved in dismissing the outgoing governor’s ideologues. New administrations can be exceptionally heavy-handed in being reserved (hence this big win for Choate – who most often loses – and this plaintiff). So the numbers of exempt and partially exempt employees will swell. There has been an ongoing practice of lots of people hired by the outgoing governor to take classified service jobs (jobs covered by union contracts) but that works better when the outgoing governor is a Democrat; the unions don’t play nice if the outgoing governor is a Republican. In any event, this ruling will increase the cost of government. No one really cares about that of course but during election years lots of people running for office give it lip service. With a $13 billion annual spend there’s already lots of people hiding in plain sight. Having more and more government employees is good for the economy, right?

    • The State Personnel Act and the merit system requirement of the Constitution simply doesn’t apply to communists, excuse me, Democrats. The Democrats purge the workforce of anyone who has ever had a Republican thought far down into the ranks of merit system employees. If you’re a part of that State Range 20-23 cohort that actually runs the government, if you’ve actually acted to carry out the programs of a Republican Administration, your name will be on a hit list when the Democrats take over. They aren’t reticent to fire these merit system employees. If you’re in Juneau it is almost impossible to find a lawyer who’ll represent you against a Democrat Administration, and it isn’t easy elsewhere in the State. I recently did some consulting to an Anchorage attorney representing a Juneau-based employee who was suing for wrongful discharge. The State settled, but only after a change of administration.

      I’ve experienced a Democrat candidate for Governor stand before the AFL-CIO convention and promise them my and a co-worker’s heads on a platter if he was elected. I’ve witnessed a Democrat appointee waddle into our office to announce that he’d just been appointed Commissioner of Administration and tell us that he’d campaigned with the unions for the job and had promised them that he’d get rid of all of us, all merit system, non-appointee, employees, and replace us with people acceptable to the unions. If you’re lucky, you just get an office with no windows, a seat that flushes, and an unlisted phone and email; you don’t get the memo. Some can just put their head down and endure that until the next election, most can’t. I quit and went to work for the Legislature with the Administration’s misery as my mission. They never got me, but it wasn’t for lack of trying and they did manage to cost me the better part of half a million bucks in PERS earnings and benefits. Fighting with them has a price, and I unapologetically despise most of them.

  15. Is her behavior a violation of the Hatch Act?
    .
    “Public Health Service Commissioned Corps (PHSCC) officers, Administrative Law Judges (ALJs), and Career Senior Executive Service (SES) employees are subject to further restrictive rules and cannot engage in partisan political activities even during off-duty hours or while away from work.”

    • It ain’t like a Democrat federal administration is going to prefer charges against a Democrat for violating the Hatch Act.

  16. I wonder if she had any role in the original challenge to Prop 2 that was ruled by the Supremes as only a single issue, not 3 separate issues, so it went on the ballot as one thing. And as we found out, they only campaigned on the one issue most likely to get votes, dark money, so we got ranked choice voting by subterfuge. If she represented the state in that initial challenge, I can’t imagine we were represented fairly given her obvious liberal bias.

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