Babcock & Governor’s Recent Firings Exposing State to Costly Lawsuits?
Dear Friends and Neighbors:
It's never good to say you know the law when you don't. New Chief of Staff Tuckerman Babcock got it wrong in stating publicly that it was OK to ask for thousands of resignations, in effect, so he could make sure employees would be "loyal" to the new Governor's "political agenda" (paraphrase quotes). At least morally, and possibly legally, in my view. He was recklessly wrong when he proclaimed that the folks he was targeting - "at will" employees" - had no legal rights. They actually do.
Now a state strapped for funds might face significant liabilities for what growing facts, and calls I've received, suggest has been hyper-partisan conduct. You simply should not do this to lower level, non-policy employees who do good work, who have a right to political views whatever they are, as long as it doesn't compromise the work they do for the state.
I want to be clear that I'm in a similar boat as Tuckerman. I also can't give legal advice. But I can be concerned about good government, jobs people have performed well in who have bills to pay, and the impact on a budget that can't absorb potentially major, new, very avoidable legal liabilities.
I haven't practiced law since I became a legislator, and right now plan to keep it that way. So my intention is not to give you legal advice. Don't rely on mine or Tuckerman's. But I do have a right to talk about the laws I do know about, and your right to good government.
I've noted in a recent newsletter, and on social media, that these resignation calls have been potentially illegal, if they were in fact aimed at getting rid of employees with personal political views different than the new Administration's. I noted as someone concerned about directing our budget funds to important things, not folly, that this course might cause significant lawsuit liabilities to the state. And I was, on the other hand, very clear about a personal view I have - that it would be very risky for employees to not submit the requested resignation letters, and reapply for your jobs as requested, just to create an uncertain lawsuit. That was my personal view, and what I would tell a friend.
For those considering legal action, I wrote, and still say, speak to highly qualified attorneys that you trust, not politicians like Tuckerman or me who do not practice law.
That said - here are the potential problems the new Administration faces.
Recently two highly qualified women, who had posted arguably Democratic leaning statements on their own personal time, were fired (or technically not rehired when told to resign). If their political views were the motivating factor in their firings - something we don't know yet for sure - Tuckerman has created a potential legal liability for the state. A court may very well disagree, but there is a fair argument (I can't predict the outcome) that demanding a resignation, telling someone to reapply or else they'll be fired, and then not hiring them, is a "constructive discharge" - or, in effect, a firing.
Tuckerman's First Mistake: The new Chief of Staff told you "at will" employees have no employment rights. Well, he's flat wrong.
Even an at will employee in Alaska cannot be fired for a host of the worst motivations. You can't fire someone because you don't like their color or religion. You likely can't fire someone (get good legal advice if you really want reliable answers on these things) for refusing your order that they commit a crime. You can't fire them because they are over 55. And, there has been some older Alaska Supreme Court precedent I agreed with when I did practice law (warning again, that I don't know how the Supreme Court has ruled over the past 18 years since) to suggest you can't fire someone because you disagree with their First amendment-protected political views, if it does not affect their work.
And, though it may not help an employee in a lawsuit (again, I do not know for sure), our Constitution and the debate by our Constitutional Delegates, as I wrote a few weeks ago, state clearly that people are to be hired in state employment based on merit not political allegiance. I believe in that Constitutional principle, and disagree strongly with retaliating against an employee because of their personal views.
So, I would say this to the new Administration. Stop it.
If you are purging people based on their political donation histories, please stop it.
If you are researching their personal political views, which they have a right to, please stop it.
Shaking a person's confidence in their ability to pay their bills, if they have done good work, is wrong.
Tuckerman, Governor, hire all the folks you want on your political side in high level policy positions. Though I hope you choose people who will do good work for this state.
But please don't do this to Alaskans in lower level jobs, who have bills to pay, and have done their jobs well, just because you disagree with their politics.
I hope that is not what is being done, and time will tell as the dust settles. But the troubling indications from calls I and others have received, and the two bright female attorneys you just let go, support my concern that this is exactly what is going on. I truly hope I'm wrong.
And to the Alaskans who have done good work, worked long hours, and served this state well, but who have been fired - I'm on your side. You deserved better.
As always call if we can help. I'm on the job until mid-January, when our new Representative, Zack Fields, will take office.
I'll take this job seriously until the final day of work - before I begin a break from political office (maybe forever, and maybe for a short time - I have no plotted plans in that regard). In the meantime, I'll keep standing with you for a better state.
Rep. Les Gara