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Clancy DuBos: Free speech vs. politics as usual 

A legal issue in Kenner pits free speech against citizens' desire to depoliticize the workforce

click to enlarge ben_zahn.jpg

Kenner Mayor Ben Zahn

A recent federal lawsuit filed by a dozen unclassified Kenner city employees raises very interesting legal and political questions. The suit seeks to overturn a Kenner city charter amendment barring "political activity" in Kenner city elections by unclassified (read: politically appointed) City Hall employees. Those same employees are free to politick in all other elections.

  The legal issue pits the First Amendment right to free speech — particularly political expression — against Kenner citizens' express desire to depoliticize the city's historically politicized workforce. U.S. District Judge Nannette Jolivette Brown will decide the matter on purely legal grounds, but the courts' ultimate decision (assuming an appeal by the losing side) will have profound political implications.

  The suit also presents the question of whether the defendants in the suit — Kenner Mayor Ben Zahn and other high-ranking city officials — truly want to prevail. Their personal political interests don't exactly align with the wishes of the Kenner citizens who approved the charter amendment by a 70-30 vote in a high-turnout election.

  The defendant-politicians, who are the plaintiffs' bosses, undoubtedly would love nothing more than to "allow" their at-will political employees to campaign on behalf of the establishment's favored candidates and causes, which is what led to the charter amendment in the first place. The First Amendment notwithstanding, what Kenner business owner would feel comfortable saying "no" to a code enforcement officer who asks for a contribution or a sign location?

  In fairness, I must point out that the defendants have hired skilled, veteran litigators who are fully capable — and legally obligated — to mount spirited defenses against this constitutional challenge. I'm confident they will do that.

  Before going further, a disclosure: Plaintiffs' attorney Scott Sternberg is the general counsel for the Louisiana Press Association, on whose board I sit. That makes me Sternberg's client on another front.

  That said, I'm intrigued by the legal issue and skeptical about the political side of this matter. I've been covering Kenner politics for almost four decades, yet I'm constantly amazed at the intensity of Kenner's politics, which makes New Orleans' elections look like Girl Scout cookie sales. That, no doubt, also contributed to the charter amendment's adoption.

  Legally, Sternberg says the charter amendment is "incredibly unconstitutional" because it prohibits certain citizens from engaging in "political activity" without defining what that term means. "We know what the civil service system defines as 'political activity,'" Sternberg says, "but the charter does not reference that law."

  Sternberg adds that his clients "are not civil service employees. The reason we have civil service is because people exchange certain rights in consideration for not having to worry about getting fired because someone else gets elected," Sternberg says. "The whole purpose of unclassified employees is that they are appointed by the politicians that get elected, and serve at their pleasure."

  Ah, there's the political rub.

  New Orleans, for example, has a large unclassified work force, which often becomes a potent political force at election time. The same holds for every sheriff in the state and for other local government leaders with politically appointed employees. The spoils system is part and parcel of American politics and government, but citizens often find it repulsive — and Kenner citizens voted overwhelmingly to put some constraints on it.

  The legal question before Judge Brown is whether those constraints pass constitutional muster. If they don't, it will literally and figuratively be "politics as usual" in Kenner once again.

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