THE INVESTIGATORS: Law professor claims state employee unjustly banned from public service over political posts

BATON ROUGE, La. (WAFB) - A law professor with LSU is calling on the Louisiana Civil Service Commission to reverse a decision to ban a former state employee from working for the state for the next five years over political posts she made on social media. Ken Levy says the commission went overboard in its decision and believes Vanessa LaFleur was treated unfairly.

The posts in question were shared on social media from LaFleur’s personal Twitter and Facebook accounts and turned out to be pretty costly for her. LaFleur has more than 20 years of experience as a public servant, most recently as a tax director with the Louisiana Department of Revenue but she is now out of a job with the state. LaFleur chose to retire about a month before the Louisiana Civil Service Commission moved to ban her from holding a state job for five years and forced her to pay a $500 fine.

WAFB’s Scottie Hunter asked Levy if he believes the punishment was too aggressive.

“I do,” Levy answered. “Not only do I think that she shouldn’t have been punished at all but then to ban her for five years from civil service employment was excessive.”

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Back in August, during the height of the 2020 election, LaFleur shared several posts about then-candidates Joe Biden and Kamala Harris. Her posts also included a speech by a teenager that was delivered at the Democratic National Convention and a speech by former First Lady Michelle Obama who blasted former President Donald Trump for his handling of the coronavirus pandemic. LaFleur retweeted a post from Biden, a post from Harris and then later posted on her Facebook page “Joe is ready”. Levy says he sees nothing wrong with what LaFleur posted and argues that her speech is protected under the First Amendment.

“I do think that she is expressing an opinion but as an American citizen, she’s well within her rights to do that,” said Levy.

While it is against Louisiana law for state employees to engage in political activity, Levy says that includes campaigning for someone or raising money for a candidate. Levy believes by simply posting and retweeting posts, LaFleur did not cross the line and instead he says it’s the Civil Service Commission that has gone too far.

WAFB’s Scottie Hunter asked Levy if he thinks the punishment should be reversed.

“Yes,” Levy answered. “It’s not only wrong and it’s infringing on Ms. LaFleur’s First Amendment rights but it sets a horrible precedent.”

The commission made the decision at a hearing back in February and according to records obtained by the 9News Investigators, neither LaFleur nor her attorney chose to show up to the proceedings. When WAFB reached out to LaFleur for comment on the matter, she defended her posts with the following statement.

“As to the State Civil Service Commission’s complaint and decision. I vehemently deny the allegation lodged against me that my actions gave rise to an endorsement of a candidate and submit that the Commission’s analytical reasoning and decision are unmeritorious.

For context, a civil service complaint was filed because I retweeted the announcements regarding Joe Biden’s choice of Kamala Harris as his running mate. The complaint also alleged that my sharing the speech by the young man who had a stutter was a political action. The only comment I attached to that post was my legendary “Crydrops.” My Mother’s heart was moved by the bravery of that child to face his fears. The complaint also alleged that my saying that “Joe is ready” in a post was a political action.

For the record, let me reiterate that at no time did I endorse any candidate. That would have been political action. I would also like to note, the complaint and conversation all began after I testified in the disqualification matter that ultimately resulted in the disqualification of a candidate who desired to be Mayor of the City of Baton Rouge.

This investigation included campaign donation records of my husband being pulled and investigated. You may draw whatever conclusions you wish to draw as it relates to the timeliness of all of this. I answered all questions put before me truthfully.

I chose not to use my energy to fight for something that no longer gives me joy. As a result, after I retired from state service, I was fined $500 and banned for 5 years from re-entering state service.

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As an attorney, I would be remised if I did not advise that I believe that these prohibitions violate the First Amendment rights of state government employees when they are speaking as private citizens. They are ambiguous and appear to encroach on the free speech rights of employees and as such, I anticipate that Louisiana’s Prohibited Political Activity rules will be successfully challenged as they attempt to prohibit things citizens have the right to do.

Moreover, these rules exceed the obligations federal employees have under the Hatch Act, 5 U.S.C. §7323(a) and §7324(a). The Hatch Act generally prohibits federal employees from engaging in political activities while on duty, in a Government room or building, while wearing an official uniform, or while using a Government vehicle. Under the Hatch Act, “political activity” is defined as any activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.

Note that the activity giving rise to the complaint lodged against me did not occur during my duty hours, nor was it done in my capacity as a state employee.”

Levy agrees with LaFleur’s assessment and he’s concerned about how a ruling like this can impact or even violate the First Amendment rights of other state workers in the future.

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“Every civil service employee should be very scared that they cannot express their opinion anymore on social media and by severely limiting civil service employees’ voices like that, we all lose,” said Levy.

LaFleur was responsible for processing public records that were used in a lawsuit that ultimately knocked Tara Wicker out of the recent race for East Baton Rouge Mayor-President. LaFleur was even called on to testify in the Wicker case. She now questions the timing of the complaint against her because it came after that testimony.

Levy also questions the motives of those who chose to ban LaFleur from public service.

“I don’t know the motives but I am curious how they thought that a few tweets and retweets were constituted as political activity,” Levy added.

The State Civil Service Director Byron P. Decoteau, Jr. issued the following statement regarding the matter.

“Article 10, Section 9 of the Louisiana Constitution prohibits classified state employees from engaging or participating in political activity, which is defined by the constitution as “an effort to support or oppose the election of a candidate for political office or to support a particular political party in an election.” Article 10, Section 10(B) authorizes the State Civil Service Commission to investigate violations of the political activity prohibitions. Chapter 16 of the Civil Service Rules, which in accordance with Article 10, Section 10(A)(4) has the force and effect of law, sets forth the procedure for investigations. In sum, those accused of violating the political activity prohibitions set forth in the Constitution and Chapter 14 of the Civil Service Rules are given notice of formal charges and advised of the allegations, given notice of the scheduled public hearing and are allowed to present their case fully to the State Civil Service Commission. The right to present one’s case fully to the Commission includes, but is not limited to, the right to counsel, the right to subpoena and call witnesses and the right to offer exhibits. After the case is submitted, the Commission deliberates and renders a decision. That decision is appealable to the First Circuit Court of Appeal. With respect to Vanessa LaFleur in particular, all procedures set forth in the Constitution and State Civil Service Rules were fully satisfied.”

The 9News Investigators requested a list of the number of hearings that have been held for employees engaging in political activity in the last three years. The only one that the Louisiana Civil Service Commission has held was the one regarding LaFleur.

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