It is a common occurrence in state and city government: new leadership comes into power, fires previous administration’s appointees, and brings in new staff of its own choosing. What does not (or should not) happen is: the new administration begins, demands allegiance from all employees, and terminates those who fail to swear allegiance, whether they were political appointees or not.
After the governor’s election in Alaska, many were expecting the same sort of turnover in state government after previous incumbent Bill Walker was ousted by now-governor Mike Dunleavy. However, instead of only directing high-level political appointees to resign and re-apply for their jobs, Dunleavy’s office directed all at-will employees within the state system to resign and re-apply, and make an affirmative statement of allegiance to the new administration in order to be re-hired. Many of these employees were in non-political positions.
When asked about the move, the then governor-elect responded, “We want to give people an opportunity to think about whether they want to remain with this administration and be able to have a conversation with us.”
Doubling down on their position, Dunleavy’s transition chairman stated, “(Dunleavy) just wants all of the state employees who are at-will…to affirmatively say, ‘Yes, I want to work for the Dunleavy administration.’”
Predictably, several employees took issue the forced affirmative statement of support for the newly-elected governor’s administration, and are suing, with the help of the ACLU.
Pickering v. Board of Education was decided by the U.S. Supreme Court in 1968. The plaintiff in that case, a teacher, made several disparaging remarks about budgetary decisions made by the school district in the local newspaper. He was terminated from his position after, and claimed that the termination violated his first amendment freedom of speech.
In finding that the board violated his free speech, the Court stated that “the interests of the [employee] as a citizen, in commenting on matters of public concern” must be balanced against “the interest of the State as an employer, in promoting the efficiency of the public services it performs through its employees.” This test has been relied upon countless times since then to determine speech interests of public employees.
The plaintiffs in the Alaska case are a former assistant attorney general, the former director of psychiatry for the Alaska Psychiatric Institute, and a staff psychiatrist from the same institute. These are not low-level employees, but are not at the top of any governor’s political appointee list, either. They were asked to respond affirmatively to the questions, “Do you want to work on this agenda?” and “Do you want to work in this administration?”
The question to be answered is whether the state has such a strong interest in non-political state employees upholding its political agenda that it outweighs those employees’ rights to free speech. And for those who can remember the Janus decision, a public employee’s right to speak on a matter of public concern is just as important as an employee’s right to not speak on such.
This will be a close case – the plaintiffs may have been in a position of some political influence, so it is possible the governor’s decision will survive. However, the decision to force all at-will employees in the state’s system to make a political statement appears to be so broad and indiscriminate that it will be difficult to overcome.
First Amendment issues are very difficult when dealing with public employees. If you or your organization are seeking advice in dealing with any First Amendment issues with your employees, contact the Wiley Law Office for advice that works.