ACLU: State refused to rehire Arts Council employee because she was critical of Dunleavy

Among the many vetoes Gov. Mike Dunleavy delivered on June 28 was the wholesale elimination of the Alaska State Council on the Arts, a move that overnight left Alaska as the lone state without an arts council.

It was a distressing situation among dozens of distressing situations created not just by the depth and scope of the cuts but the sudden effect that they took. There was no warning and little time to respond.

With the veto running up right against the new fiscal year, the organization’s four employees were eliminated over the weekend. It left its members wondering what would happen to the art it had loaded to state offices and what would happen to the several programs in runs, including services for veterans.

One of the employees terminated by that round of vetoes was Karen Lowell, who put her newfound free time in to backing the recall effort against the governor, “offering, for example, to purchase small stickers, help with logistical support and gather petition signatures” while also writing about the recall on her social media pages.

It’s those efforts, in part, that buoyed the Legislature to pass a new budget that restored much of the vetoes, giving the governor the opportunity to backtrack on his vetoes. He did and funding for the Alaska State Council on the Arts was one of several items to be “restored” in August.

With funding in-hand, the arts council sought to get things restarted and running again. While one employee had moved on, the council immediately rehired its executive director, Andrea Noble, and sought to rehire Lowell and another employee.

But her efforts with the recall, according to a new complaint filed this morning by the American Civil Liberties Union of Alaska, didn’t go unnoticed by state political appointees loyal to Dunleavy.

While other Arts Council employees terminated by the veto were successfully rehired, Lowell told that she wouldn’t be among them. But unlike the loyalty pledge firings that marked the Dunleavy’s entrance to office, it doesn’t appear that the decision regarding Lowell ever reached Dunleavy or his senior leadership team.

Instead, the decision was made at the initial phase by Boards and Commissions Director Gina Ritacco.

According to a letter by the ACLU of Alaska sent to the administration this morning, the takeaway was the rejection “is related to statements made on social media about the governor” even though she had the support of both Noble and Department of Education and Early Development Commissioner Michael Johnson.

The ACLU of Alaska is now threatening to bring legal action against the state, arguing that the refusal to rehire Lowell based on her activities during the summer is a violation of her First Amendment rights to free speech.

“Ms. Ritacco’s refusal to allow Ms. Lowell to return to the Arts Council was a deliberate act of retribution that any reasonable person would understand violated Ms. Lowell’s clearly established constitutional right to free speech,” argues the letter. “More than fifty years ago, the United States Supreme Court made clear that the state may not unduly suppress the First Amendment rights its employees “would otherwise enjoy as citizens to comment on matters of public interest.”

The lawsuit acknowledges that Lowell is an exempt employee, part of the group of at-will employees who were targeted in the governor’s loyalty pledge firings, but argues that her classification as an exempt employee was a technical matter and doesn’t give the governor free rein on enforcing his political agenda and extracting loyalty from state employees.

“You and others in your administration seem to be influenced by the legal fiction that employees not in the classified service and who are ‘at will’ are subject to dismissal by you or your designees for any reason at all. But an employee’s status in the exempt or partially exempt service does not give you license to insist that the employee conform their political ideology—and their political speech—to your own,” argues a footnote in the letter. “Such is the case with Ms. Lowell, whose accidental status as an exempt employee was merely the result of the Council’s restructuring and had nothing to do with political considerations or a legitimate need for loyalty to your agenda.”

The letter seeks for Lowell to be reinstated to her position as well as be awarded back pay and “other compensation that adequately addresses the harms she has suffered.”

The ACLU has brought multiple lawsuits against the state, Dunleavy and former Chief of Staff Tuckerman Babcock for firings after several state employees refused to sign a loyalty pledge with the governor. Though those employees are also at-will, the ACLU argues that the loyalty pledge constituted an effort by the state to curtail its employees’ constitutionally protected speech and political activity.

Jeff Turner, a spokesman for the governor’s office, told the Anchorage Daily News that the administration is conducting a “thorough review and consultation with the Department of Law” before it will respond to the claim.

The letter from the ACLU says that the desired course of action would be to resolve Lowell’s claims without litigation but said if the organization is prepared to move forward with a lawsuit if it doesn’t receive a response from the state by Jan. 9, 2020.

Why it matters

It’s a further extension of all the issues raised by the loyalty pledge firings, but it’s notable because it appears that the decision never even reached the governor or his senior staff. Instead, the refusal to rehire Lowell came from the Boards and Commissions director.

The rejection also stands out in a year where several of the governor’s appointees, who are run through the Boards and Commissions office, were forced out when their social media was filled with right-wing posts that sometimes veered into conspiracy-theory territory. After being dealt several embarrassing defeats, many wondered if the governor’s office was doing any vetting at all.

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