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Federal judge rules Dunleavy’s ‘loyalty pledge’ termination of attorney was unconstitutional, in second such case

Jan. 20, 2022 Fast Cast
Published: Jan. 20, 2022 at 4:56 PM AKST|Updated: Jan. 20, 2022 at 6:23 PM AKST
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ANCHORAGE, Alaska (KTUU) - A federal judge has ruled that Gov. Mike Dunleavy and his administration’s “loyalty pledge” firing of a former Alaska Department of Law attorney was unconstitutional and violated her free speech rights.

In a decision published Thursday, Senior U.S. District Judge John Sedwick concluded that the termination of Libby Bakalar violated her rights under both the U.S. and Alaska Constitutions, and that her termination amounts to “unfair dealing under state law.”

Bakalar was employed as an assistant attorney general with the Alaska Department of Law, where she had worked for 12 years. When Dunleavy took office in December 2018, his administration sought the resignation of about 800 at-will employees at the start of his term as governor. According to the order, previous incoming governors had requested resignations from only about 250 employees.

Tuckerman Babcock, who was chair of Dunleavy’s transition team at the time, sent a memo to state employees requiring them to submit their resignation as well as a statement that they were interested in remaining employed with the new administration.

“Dunleavy is committed to bringing his own brand of energy and direction to state government,” the memo read in part. “It is not Governor-Elect Dunleavy’s intent to minimize the hard work and effort put forth by current employees, but rather to ensure that any Alaskan who wishes to serve is given proper and fair consideration.”

According to the court order, Bakalar submitted her resignation, as well as a statement that she wanted to continue working for Dunleavy’s administration. She was terminated the same day that Dunleavy took office, according to the documents.

Bakalar has a large presence on social media and has been outspoken about some political issues, including being critical of former President Donald Trump. In 2017, court documents say, there was an investigation into her practices surrounding her blog, “One Hot Mess,” but the outcome determined that she had not violated ethics and that any time she had spent on the blog during normal work hours had been within commonly accepted limits.

In 2019 following her termination, Bakalar filed a lawsuit against Dunleavy, Babcock and the state, alleging that they had violated her free speech rights.

According to the court order, Babcock had explained his firing of Bakalar based on her resignation letter, saying it was “unprofessional in its tone.” According to the order, Babcock admitted that he did not have a formal process or criteria for reviewing the resignation letters requested from state employees.

The only other attorney in the Department of Law for whom Babcock accepted a resignation was an attorney who, like Bakalar, also had been publicly critical of Trump, the court order said.

“Given this evidence, it is clear that Babcock’s decision to terminate Plaintiff was motivated by reasons connected to her First Amendment rights,” the order states.

In his order, Sedwick found in favor of Bakalar on three of the five claims she and her lawyers made. His order states she is entitled to relief, but that Dunleavy and Babcock are not personally liable.

Reached by phone Thursday, Bakalar said she’s glad the judge found in her favor on the claims that were most important to her.

“It feels really good to have this behind me,” she said. “It’s been really agonizing actually and kind of just brutal all around, and I’m happy that it’s done and I’m happy that we won on the issue that I really cared about.”

Bakalar said she hopes the fact that her firing was deemed unconstitutional will help prevent something similar from happening to state employees in the future. She emphasized that it’s important for state employees to know they have rights that “they’re not checking at the door” when they decide to work for the state.

“I just think that sets a precedent that hopefully no future administration will do this,” she said.

In October, Sedwick also ruled that the Dunleavy administration’s firings of two other state employees had violated the U.S. and Alaska Constitutions.

Bakalar said she and her lawyers will confer about moving forward with damages in the case.

In a statement provided by Communications Director Aaron Sadler, the Department of Law said it is still reviewing Thursday’s decision, but said “the Court in this case would strictly limit the ability of future Governors to hold employees in sensitive positions accountable for actions that ultimately affect their work for the people of Alaska.”

The department acknowledged that the court had decided the method in which Bakalar’s resignation was handled justified her to relief.

The statement references a line from the decision, which states in part that “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.”

“It is disappointing that the Court would recognize the plaintiff could have been terminated if not for the process by which her resignation was accepted,” the department’s statement reads.

Sedwick’s decision notes that given Bakalar’s position and how public her political commentary way, “it would not have been unreasonable” for state officials to consider her speech a disruption to operations. At the same time, the decision states that the government must show it acted in response to an employee’s speech interfering with operations, and not just because they disagreed with the content of the speech.

“This is where Defendants fall short,” the order reads.

According to the statement, the Department of Law will evaluate the impacts of the decision “and consider its next steps.”

Editor’s note: This article has been updated with additional information and response from the Alaska Department of Law.

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