In the Matter of Wayne Spence, as President of the New York State Public Employees Federation, AFL-CIO, et al., Appellants,v.New York State Department of Agriculture and Markets et al., Respondents.

Brief

N.Y.August 29, 2018

APL-2017-00237 To Be Argued By: Jessica C. Caggiano, Esq. Time Requested: 15 Minutes STATE OF NEW YORK SUPREME COURT APPELLATE DIVISION THIRD DEPARTMENT In the Matter of the Application of WAYNE SPENCE, as PRESIDENT of the New York State Public Employees Federation, AFL- CIO, THE NEW YORK STATE PUBLIC EMPLOYEES FEDERATION, AFL-CIO, and GREGORY KULZER and RONALD BROWN, Plaintiffs-Petitioners/Appellants-Appellants, -against- NEW YORK STATE DEPARTMENT OF AGRICULTURE & MARKETS, and RICHARD A. BALL, individually, and in his official capacity as Commissioner of New York State Department of Agriculture and Markets, Defendants-Respondents/Appellees-Respondents. BRIEF ON BEHALF OF PLAINTIFFS-PETITIONERS/APPELLANTS-APPELLANTS Albany County Index No. 3043-15 LISA M. KING, ESQ. Attorney for Plaintiffs-Petitioners/Appellants-Appellants 1168-70 Troy-Schenectady Road P. O. Box 12414 Albany, New York 12212-2414 (518) 785-1900, Extension 241 JESSICA C. CAGGIANO ESQ. Of Counsel DATED: February 22, 2017 TABLE OF CONTENTS TABLE OF AUTHORITIES ii-iv PRELIMINARY STATEMENT 1 STATEMENT OF FACTS 4 QUESTIONS PRESENTED 11 DECISION BELOW 13 ARGUMENT POINT I THE COURT BELOW ERRED IN GRANTING APPELLEES’ MOTION FOR SUMMARY JUDGMENT WHICH WAS BASED ON HEARSAY OR, IN THE ALTERNATIVE, RAISED DISPUTED ISSUES OF FACT 16 Appellees’ Failed To Support Their Motion With Affidavits By Persons Having Knowledge Of The Facts A. 16 Appellees Raised Material Issues Of Fact In Their Motion For Summary Judgment B. 18 POINT II THE COURT BELOW ERRED IN GRANTING APPELLEES’ MOTION FOR SUMMARY JUDGMENT AND DISMISSING THE ARTICLE 78 PETITION ON THE MERITS AS WELL .21 Matters Beyond The Grounds Of The Administrative Record May Not Be Considered In The Article 78 Proceeding A. .22 Appellees’ Challenged Actions Were Arbitrary, Capricious, Irrational, and Contrary to Law B. .23 Appellants’ Speech Is Constitutionally Protected And Appellees’ Have Failed To Otherwise Justify Their Unlawful Actions C. .29 CONCLUSION 42 ii TABLE OF AUTHORITIES CONSTITUTIONS United States Constitution 1,2, 34 Constitution of the State of New York 1,2 CASES Anderson v. Celebrezze, 460 U.S. 780 (1983) 19 Anemone v. Metro. Transp. Autk, 629 F.3d 97 (2nd Cir. 2011) .31,32, 34 Aronsky v. Bd. ofEduc., 75 N.Y.2d 997, 557 N.Y.S.2d 267 (1990) .22, 24 Bauers v. Cornett, 865 F.2d 1517 (8th Cir. 1989) 34-35 Broadrickv. Oklahoma, 413 U.S. 601 (1973) .34 Caruso v. City of New York, 973 F.Supp.2d 430 (S.D.N.Y. 2016) .30,31 Castine v. Zurlo, 756 F.3d 171 (2nd Cir. 2014). .30,32,33,34 Charles A. Field Del. Serv. v. Roberts, 66 N.Y.2d 516 (1985) .27 Curie v. Ward, 59 A.D.2d 286 (3d Dept. 1977) .38 Fletcher v. Marino, 882 F.2d 605 (2nd Cir. 1989) Gannett Co. v. DePasquale, 55 A.D.2d 107 (4th Dept. 1976) Holland v. Dillon, 531 N.Y.S.2d 467 (N.Y. Sup. Ct. Onondaga Cty., 1988). .34, 35 .38 .38 Jackler v. Byrne, 658 F.3d 225 (2nd Cir. 2011) .31 JMD Holding Corp. v. Congress Financial Corp., 4 N.Y.3d 373, 795 N.Y.S.2d 502 (2005) 16, 29 Jock v. Landmark Healthcare Facilities, 62 A.D.3d 1070, 879 N.Y.S.2d 227 (3d Dept. 2009) .17 Knight v. Amelkin, 68 N.Y.2d 975 (1986) .27 iii TABLE OF AUTHORITIES cont'd. CASES Lane v. Franks, 134 S. Ct. 2369 (2014). .30 Liverman v. City of Petersburg, 844 F.3d 400 (4th Cir. 2016). .32, 35 Mains v. City of Rochester, 2004 U.S. Dist. LEXIS 14826 (W.D.N.Y. 2004). 19,37 Melzer v. Bd. ofEduc., 336 F.3d 185 (2nd Cir. 2003) 19-20,31 Moore v. Zoning Bd. of Appeals, 2015 N.Y. Slip. Op. 32161(U) (N.Y. Sup. Ct. Suffolk Cnty., Aug. 7, 2015) .27 Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976). .38 N.Y.S. Law Enfcmt. Offs. Union v. N.Y., 255 A.D.2d 54 (1999). .31 Oladeinde v. City of Birmingham, 230 F.3d 1275 (11th Cir. 2000) .35 Phillips v. Kantor & Co., 31 N.Y.2d 307, 338 N.Y.S.2d 882 (1972). 18 Pickering v. Board of Education, 391 U.S. 563 (1968) Piscottano v. Murphy, 511 F.3d 247 (2nd Cir. 2007)... passim .35 Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Serv., 77 N.Y.2d 753, 570 N.Y.S.2d 474(1991) .22, 24 Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957)......18, 29 Tall Trees Constr. Corp. v. Zoning Bd. of Appeals, 97N.Y.2d 86 (2001) .27 United States Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548 (1973) 34 United States v. Nat'l Treas. Empl. Union, 513 U.S. 454 (1995) passim iv TABLE OF AUTHORITIES cont'd. Page STATUTES Civil Practice Law and Rules §3001 1 ,16,21Civil Practice Lem’ and Rules §3212 Civil Practice Lavv and Rules §7803 1,22 Civil Practice Lem’ and Rules Article 78, .3 Public Officers Law §73 .25 Public Officers Law §73-a .25 Public Officers Law §74 .25, 26 42 United States Code §1983 1 REGULATIONS N.Y. Exec. L. S94 .25 New York Code of Rules and Regulations Title 1, Part 2 .4,8 STATE OF NEW YORK SUPREME COURT APPELLATE DIVISION THIRD DEPARTMENT In the Matter of the Application of ) ) WAYNE SPENCE, as PRESIDENT of the New York ) State Public Employees Federation, AFL-CIO, THE NEW ) YORK STATE PUBLIC EMPLOYEES FEDERATION, ) AFL-CIO, and GREGORY KULZER and RONALD ) BROWN, Albany County Index No. 3043-15 ) ) Plaintiffs-Petitioners/Appellants-Appellants, ) ) ORAL ARGUMENT IS REQUESTED Kl) ) -against- ) ) NEW YORK STATE DEPARTMENT OF AGRICULTURE & MARKETS, and RICHARD A. BALL, individually, and in his official capacity as Commissioner of New York State Department of Agriculture and Markets, ) ) ) ) ) ) Defendants-Respondents/Appellees-Respondents. ) PRELIMINARY STATEMENT This is an appeal in a proceeding commenced as a hybrid action/special proceeding for declaratory and permanent injunctive relief, ancillary monetary relief and other damages permitted by law pursuant to Civil Practice Lem> and Rules (“ CPLR”) §3001 to redress Defendants- Respondents/Appellees-Respondents’ (hereinafter “Appellees”) deprivation of Plaintiffs- Petitioners/Appellants-Appellants (hereinafter “Appellants”) rights secured by the First Amendment of the United States Constitution, 42 United States Code §1983, and Article I, Section 8 of the Constitution of the State of New York, and for an order declaring Appellees’ prohibitions arbitrary, capricious, irrational, and contrary to law pursuant to New York CPLR §7803(3), as well as an 2 order that Appellees’ unilateral prohibition against employees who inspect regulated entities from campaigning for or holding elected office is not based upon a grant of authority from the New York State Legislature, nor is it based upon a rule promulgated by the New York State Joint Commission on Public Ethics (“JCOPE”), and the policy is therefore ultra vires, without lawful authority, unauthorized, and null and void. The Appellants consist of Wayne Spence, as the President of the New York State Public Employees Federation, AFL-CIO (“PEF”), PEF, and Gregory Kulzer and Ronald Brown. Appellants Kulzer and Brown were at all relevant times, members of the bargaining unit represented by PEF and employed as Dairy Products Specialist Is employed by Appellee Agriculture & Markets. (Record on Appeal,1 21, 23-24.) On June 3, 2015, the Appellants filed this hybrid action, consisting of a Verified Complaint and Petition, challenging, on the grounds described supra, Appellees’ refusal to continue to approve Appellant Kulzer’s request to continue holding county legislative office and its related, subsequent initiation of disciplinary termination proceedings, challenging Appellee’s refusal to approve Appellant Brown’s request to run for and obtain county legislative office, and challenging Appellee’s unilateral promulgation of its “Political Activities” policy which sweepingly prohibits both Appellants, as well as a plethora of other employees represented by Appellant PEF, from campaigning for or holding political office. (See R. 20-110.) The Appellants seek relief on the basis that the Appellees have violated their rights under the Constitution of the State of New York and the United States Constitution by prohibiting Mr. Kulzer, Mr. Brown, and all other employees who conduct inspections of regulated entities from running for Hereinafter, citations to the Record on Appeal will be abbreviated to “R.” followed by the relevant page number(s). 3 or holding political office. (R. 22, 46-49, 53-55, 58-60.) Additionally, as the Appellees’ challenged actions were arbitrary, capricious, irrational, and contrary to law and public policy, Appellants seek review and relief under CPLR Article 78, and further alleged that the Political Activities policy was ultra vires, without lawful authority, unauthorized, and null and void. (R. 49-52, 55-58, 61-67.) The Appellees filed a Verified Answer and Notice of Motion on August 28, 2015, moving for summary judgment. (R. 111-224.) On September 16, 2015, the Appellees filed an Amended Verified Answer. (R. 228-243.) The Appellants filed a Reply on October 15, 2015. (R. 244-65.) On October 27, 2015, Acting Supreme Court Justice Judith A. Hard so ordered a Stipulation of the parties amending the caption to reflect that Wayne Spence had been elected and taken office as the President of PEF. (See R. 266-69.) The Court held oral argument on November 24, 2015, and Appellees’ filed an Amended Notice of Motion moving for summary judgment on December 17, 2015. (R. 270-309.) In a Decision and Order dated April 20, 2016, entered in the Albany County Clerk's Office on April 28, 2016, and served on Petitioners by letter dated May 4, 2016, Albany County Supreme Court Acting Supreme Court Justice Judith A. Hard granted Appellee’s motion for summary judgment dismissing Appellants’ claims and dismissed the Verified Petition. (R. 6-17.) Thus, the lower court dismissed all of Appellants’ claims in this hybrid action in their entirety. (Id.) On May 27, 2016, Appellants filed a Notice of Appeal to each and every part of the Albany County Supreme Court's Decision and Order. (R. 3-5.) 4 STATEMENT OF FACTS Appellant Gregory Kulzer has been employed by Appellee Agriculture & Markets as a Dairy Products Specialist 1 since his permanent appointment on August 9, 1984. (R. 24.) As a Dairy Products Specialist 1, Mr. Kulzer’s job duties include, but are not limited to, conducting inspections and ratings of milk plants and farms in accordance with New York State and federal regulations to ensure the quality and safety of milk and milk products. (R. 25.) When inspecting and rating any milk plant or farm, Mr. Kulzer does not conduct inspections and ratings in accordance with any county or local laws, statutes, rules, or regulations. (R. 25.) Rather, Mr. Kulzer conducts inspections and ratings in accordance with the Pasteurized Milk Ordinance issued by the U.S. Department of Elealth and Human Services and in accordance with all relevant U.S. Food and Drug Administration guidelines when he inspects and rates milk plants or farms that process Grade A milk products. (R. 25.) When Mr. Kulzer inspects plants or farms that are non-interstate Milk Shippers, Mr. Kulzer conducts inspections and ratings in accordance with New York Code of Rules and Regulations Title 1, Part 2. (R. 25.) Mr. Kulzer is not a policymaker under the Joint Commission on Public Ethics (“JCOPE”) regulations. (R. 29, 32, 135.) On March 13, 2013, Mr. Kulzer submitted an ADM-307 form to Agriculture and Markets, which is Agriculture and Markets’ standard form submitted by employees to request the Agency’s approval of activities conducted outside of their employment with the Agency. (R. 26, 72-73.) Mr. Kulzer sought the position of county legislator and told Agriculture and Markets that this position would include: “Law maker acting on behalf of constituents.” (Id.) The agency approved Mr. Kulzer’s request and placed certain restrictions upon the activity. (R. 26-27, 74.) 5 After receiving the Agency’s approval, Mr. Kulzer successfully campaigned to become a legislator on the Lewis County Legislative Board. (R. 27.) Mr. Kulzer was sworn into office as a representative of Lewis County Legislative District 07 on January 7, 2014. (Id.) On or about March 21, 2014, Mr. Kulzer submitted the required annual ADM-307 form to Agriculture and Markets seeking to have the Agency reapprove his position as a Lewis County Legislator. (R. 27, 75.) According to Agriculture and Markets Associate Attorney Chris Cuddeback, just a few weeks earlier, Mr. Cuddeback and Director of Milk Control Casey McCue received a complaint from Great Lakes Cheese plant manager John Jennings that, during an inspection, Mr. Kulzer had asked Mr. Jennings if the company might be interested in a storage facility in Lewis County. (R. 134.) Neither Mr. Jennings, nor Director McCue submitted an affidavit to the lower court supporting these assertions. (R. 249, 127-227.) Despite this alleged complaint, Director McCue approved Mr. Kulzer’s outside activity request. (R. 27, 75.) However, Mr. Cuddeback subsequently denied Mr. Kulzer’s request. (Id.) Mr. Cuddeback’s denial of Mr. Kulzer’s request is silent with respect to any allegation of an actual conflict of interest or abuse of position. (See R. 75.) Nearly seven months into Mr. Kulzer’s tenure as a county legislator, Director of Human Resource Management Mark Vanderpoel confirmed Mr. Cuddeback’s denial of his request for approval. (R. 28, 76-77.) The confirmation of this denial is also silent with respect to any allegation that Mr. Kulzer abused his position. (See R. 76-77.) Significantly, this denial neither sets forth that the alleged complaint from the Great Lakes Cheese plant manager was the basis for the denial, nor does it even reference it in the decision. (See id.) 6 Mr. Kulzer appealed the denial on or about August 15, 2014, by sending a letter to Commissioner Ball requesting reconsideration of the decision. (R. 28, 78-79.) Months after the appeal, on or about January 22, 2015, Agriculture and Markets General Counsel Susan G. Rosenthal (“General Counsel Rosenthal”) sent a letter to Mr. Kulzer which stated, in part, “[t]he Commissioner by a decision dated September 23, 2014 denied your appeal” and “[t]he Department requests that you provide a copy of your letter of resignation from your unapproved outside activity with the Lewis County Legislature within 30 days from the date of this letter or the matter will be referred to the Joint Commission on Public Ethics.” (R. 29-30, 82.) Around the same time as Ms. Rosenthal’s letter to Mr. Kulzer, Agriculture and Markets rated Mr. Kulzer’s performance thus far as satisfactory for the evaluation period from August 9, 2014 to August 8, 2015, and Mr. Kulzer signed his evaluation recertification on or about January 27, 2015. (R. 30, 83-85.) There were no comments, tasks, objectives, or performance standards provided to Mr. Kulzer in the recertification. (See R. 83-85.) On or about January 29, 2015, Mr. Kulzer advised General Counsel Rosenthal that he had never received Commissioner Ball’s determination. (R. 30, 86.) In response, General Counsel Rosenthal sent a copy of Commissioner Ball’s four-page determination, dated September 23, 2014, to Mr. Kulzer. (R. 30-31, 87-91.) In denying the appeal, the Commissioner stated that “[t]he public could reasonably perceive that the employee might use his State position to obtain financial support for his own political campaign” and “it would be difficult for the employee to manage his time.” (R. 31-32, 90-91.) The Commissioner’s determination, however, is completely silent with regard to the fact that as of September 23, 2014, Mr. Kulzer had held both his Dairy Milk Products Specialist I position and his Lewis County Legislative Board position 7 for over eight months. (See R. 87-91.) The determination is also silent with respect to any allegation of an actual conflict of interest or an abuse of either position; rather, the outside activity denial was affirmed on the basis that it creates “the appearance of a conflict of interest.” (See id.) Again, the Commissioner’s denial neither set forth that the alleged complaint from the Great Lakes Cheese plant manager was the basis for the denial, nor even referenced it in his decision. (See id.) Mr. Kulzer did not resign from either position and, on or about April 29, 2015, Agriculture and Markets subjected Mr. Kulzer to an interrogation pursuant to Article 33 of the 2011 - 2015 Collective Bargaining Agreement between the State of New York and PEF (“CBA”). (R. 33.) Thereafter, on or about May 7, 2015, Agriculture and Markets issued a notice of discipline to Mr. Kulzer stating that the Agency is seeking termination of his employment because Mr. Kulzer was “insubordinate” when he did not follow General Counsel Rosenthal’s directive to resign from his position as county legislator. (R. 34-35, 96-97.) Mr. Kulzer was neither suspended nor temporarily reassigned from his position of Dairy Products Specialist 1 prior to, or after, Agriculture and Markets issued the May 7, 2015 notice of discipline. (R. 34.) Thereafter, Mr. Kulzer continued to diligently and ethically perform the duties of both a Dairy Products Specialist 1 and a representative of the Lewis County Legislative District 07. (R. 35.) Ronald Brown has been a Dairy Products Specialist 1 at Agriculture and Markets since his permanent appointment on January 13, 1983. (R. 35.) During his tenure with Agriculture and Markets, Mr. Brown has never received an unsatisfactory performance evaluation. (R. 36.) Like Mr. Kulzer, Mr. Brown’s job duties include, but are not limited to, conducting inspections and ratings of milk plants and farms in accordance with New York State and federal regulations 8 to ensure the quality and safety of milk and milk products. (R. 36.) When inspecting and rating any milk plant or farm, Mr. Brown does not conduct inspections and ratings in accordance with any county or local laws, statutes, rules, or regulations. (R. 37.) Rather, when he inspects and rates milk plants or farms that process Grade A milk products, Mr. Brown conducts inspections and ratings in accordance with the Pasteurized Milk Ordinance issued by the U.S. Department of Health and Human Services and in accordance with all relevant U.S. Food and Drug Administration guidelines. (R. 36.) When Mr. Brown inspects plants or farms that are non- Interstate Milk Shippers, Mr. Brown conducts inspections and ratings in accordance with NYCRR Title 1, Part 2. (R. 36.) Mr. Brown is not a policymaker under the JCOPE regulations. (R. 38.) On January 25, 2015, Mr. Brown submitted an ADM-307 form to Agriculture and Markets seeking approval to become a candidate for a position in a county legislature. (R. 37, 98.) The Agency denied Mr. Brown’s request for approval and, on or about January 30, 2015, Director Vanderpoel sent a letter to Mr. Brown advising that his “request has been disapproved on the grounds the outside activity would create an appearance of a conflict of interest” and that Mr. Brown could “request reconsideration of [the] decision to the Commissioner of Agriculture and Markets within fifteen (15) days from the date of [the] letter.” (R. 37-38, 101.) Both Director McCue’s initial denial and Director Vanderpoel’s letter are silent with respect to the allegation that Gregory Kulzer conducted outside activities while on duty approximately nine months before Mr. Brown’s request. (See R. 98, 101.) In fact, neither the initial denial nor Director Vanderpoel’s letter state anything at all about Mr. Kulzer’s alleged actions at Great Lakes Cheese. (See id.) 9 By letter dated February 3, 2015, Mr. Brown appealed the decision to Commissioner Ball. (R. 38, 104-05.) On or about March 11, 2015, Commissioner Ball issued a four-page written determination in response to Mr. Brown’s appeal, which upheld the decision to deny Mr. Brown’s request for approval of outside activity. (R. 39-40, 106-09.) In denying the appeal, the Commissioner stated that “[t]he public could reasonably perceive that the employee might use his State position to obtain financial support for his own political campaign” and “it would be difficult for the employee to manage his time.” (R. 40, 108-09.) Again, the Commissioner’s determination was completely silent with regard to the fact that Mr. Kulzer had simultaneously held both positions. (See R. 106-09.) The determination is also silent with respect to any actual conflict of interest; rather, the outside activity was denied on the basis that it creates “the appearance of a conflict of interest.” (See id.) Commissioner Ball’s final determination fails to even reference Mr. Kulzer or any allegation that an employee in a similar situation conducted outside activities while on duty. (See id.) Although Mr. Brown was fully committed to garnering support as a 2015 candidate in Oneida County’s 19th Legislative District, he complied with the denial by ceasing any efforts to campaign. (R. 41.) The administrative records for both Mr. Kulzer and Mr. Brown are detailed above, and the administrative records do not contain any reference whatsoever to the alleged incident that Appellees’ contend occurred as detailed in Mr. Cuddeback’s affirmation. (See also, R. 244- 65.) Further, Mr. Kulzer denies that he spoke to Mr. Jennings about a cold storage facility in Lewis County during a departmental inspection of the Great Lakes Cheese dairy plant in Jefferson County, as alleged in Mr. Cuddeback’s affirmation. (R. 249.) On his own time, Mr. Kulzer approached Mr. Jennings about a potential cold storage facility in Lewis County and he 10 explicitly stated that he was not speaking to him in his capacity as a Dairy Productions Specialist I, and was not dressed as such. (R. 250.) Mr. Kulzer also does not believe Mr. Jennings has control over where the company does business, but merely possesses expertise of the facility’s needs. (Id.) The agency continued to allow Mr. Kulzer to inspect Great Lakes Cheese after this alleged incident occurred, and the company has never failed inspection in the five years that Mr. Kulzer was inspecting it. (Id.) On April 6, 2015, after denying the outside activities requested by Mr. Kulzer and Mr. Brown, Agriculture and Markets unilaterally revised its Employee Policies Handbook. (R. 43, 110.) The Employee Policies Handbook included a revised “Political Activities” policy setting forth for the first time that “[a]ny employee that holds a position that requires him or her to conduct inspections of regulated parties may not campaign for or hold elected office (e.g., County Legislator).” (R. 43-44.) Appellant PEF represents approximately 390 members employed by Appellee Agriculture and Markets, including approximately 26 members with the title of Dairy Products Specialist 1. (R. 41.) PEF also represents other members employed by Appellee Agriculture and Markets who are required to inspect regulated entities as part of their job duties, including, but not limited to, employees with the titles of: Dairy Products Specialist Trainee 1; Dairy Products Specialist Trainee 2; Dairy Products Specialist 1 SL; Dairy Products Specialist 2; Food Inspector Trainee 1; Food Inspector Trainee 2; Food Inspector 1; Food Inspector 1 SL; Food Inspector 2; and Food Inspector 3. (R. 41-42.) For the reasons set forth below, the lower court erred in granting the State’s motion for summary judgment dismissing all of Appellant’s claims and erred in dismissing the Verified Petition, and this Court should grant such relief from these errors as is just and proper. 11 QUESTIONS PRESENTED 1. Was Appellees’ motion for summary judgement improperly granted because it was based on hearsay and conclusory allegations? The Court below answered this question in the negative. 2. Alternatively, was Appellees’ motion for summary judgment improperly granted because it raised disputed issues of fact? The Court below answered this question in the negative. 3. Was Appellees’ refusal to permit Appellant Kulzer to continue as a county legislator an unconstitutional violation of his First Amendment and Article 1, Section 8 constitutional rights of expression and association and/or otherwise arbitrary, capricious, irrational and contrary to law? The Court below answered this question in the negative. 4. Was Appellees’ initiation of disciplinary termination proceedings against Appellant Kulzer in connection with his position as a county legislator an unconstitutional violation of his First Amendment and Article 1, Section 8 constitutional rights of expression and association and/or otherwise arbitrary, capricious, irrational and contrary to law? The Court below answered this question in the negative. 5. Was Appellees’ refusal to permit Appellant Brown to run for county legislator an unconstitutional violation of his First Amendment and Article 1, Section 8 constitutional rights of expression and association and/or otherwise arbitrary, capricious, irrational and contrary to law? The Court below answered this question in the negative. 12 6. Was Appellees’ promulgation of its policy broadly prohibiting a class of employees from running for or holding political office an unconstitutional prior restraint, in violation of the employees’ First Amendment and Article 1, Section 8 constitutional rights of expression and association and/or otherwise arbitrary, capricious, irrational and contrary to law? The Court below answered this question in the negative. 13 DECISION BELOW In the April 20, 2016 Decision and Order, State Supreme Court Acting Justice Judith A. Hard granted Appellees’ motion for summary judgment on the federal and state constitutional claims and the ultra vires cause of action, and granted Appellees’ motion to dismiss the Article 78 action in its entirety. (R. 16.) In dismissing Appellants’ claims pursuant to the motion for summary judgment and holding that Appellees’ were entitled to judgment as a matter of law, the lower court held that there was no absolute right to associate and participate in politics for either federal or state employees and that their political activities could therefore be constitutionally prohibited. (R. 12-13.) The lower court further held that the appropriate standard was a rational basis analysis in such situations. (R. 13.) The lower court also noted that the test developed in Pickering v. Board of Education was appropriate in evaluating an employee’s First Amendment rights. (Id.) In the lower court’s decision, the court notes that Mr. Cuddeback’s affirmation, submitted as a part of Appellees’ motion for summary judgment, contains hearsay and does not expressly state that it was inadmissible or otherwise not considered by the court. (R. 14.) The lower court also references the factual allegations in Mr. Cuddeback’s affirmation, submitted as part of Defendants-Respondents’ motion for summary judgment. (R. 10.) The lower court nevertheless held that, even without Mr. Cuddeback’s hearsay allegations, the Department of Agriculture and Markets could reasonably expect that “any employees’ candidacy, when those employees inspect and regulate an industry” on its behalf “could conflict with the policies of the Department.” (R. 14.) The court further noted that termination as a potential penalty for employees who refuse to resign conflicting outside work 14 “reduces the risk of impropriety within the Department” and that the Department’s interest in reducing potential, unethical behavior outweighs the interest of the Appellants in holding elective office. (R. 14.) The Court further held that Appellees could promulgate their political activities prohibition through a non-State Administrative Procedure Act process where the Department had legitimate concerns “about the judgment and professionalism of the agency particularly whether a non-departmental agenda, that would disrupt the functioning and integrity of the Department, is pursued during work hours.” (R. 14) (emphasis added.) In dismissing the Article 78 claims of the Appellants, the court applied a rational basis standard. (Id.) The court held that Appellees’ denial of Appellants’ request to “seek future local elective office” was not arbitrary and capricious, and that it was not arbitrary and capricious to attempt to terminate Appellant Kulzer for not resigning his office for the same reasoning earlier delineated by the court. (R. 15.) Once again, the court did not specifically state that the hearsay statements in Mr. Cuddeback’s affirmation were not considered or inadmissible, but that they were of “no consequence” where the Department had an interest in prohibiting certain political activity for employees who regulate and inspect an industry and where it may protect itself from the appearance of impropriety. (Id.) The lower court further noted that it had jurisdiction to decide the matter even though the agency did not hold any administrative hearing(s), and that the process used by Appellees to promulgate the at-issue work rule could be upheld even though not enacted pursuant to the State Administrative Procedures Act. (R. 15-16.) Appellants have appealed from each and every part of the Judgment below, and allege 15 that the lower court improperly considered hearsay statements, in dismissing Appellants’ claims or, in the alternative, erred in dismissing its claims after Appellees raised an issue of material fact. (See R. 3.) Appellants further allege that Appellees’ denials of Appellants Kulzer and Brown’s requests to continue to hold county office and run for county office, respectively, and Appellees’ initiation of a related disciplinary action against Appellant Kulzer, were unconstitutional, arbitrary, capricious, irrational, and contrary to law. (See R. 3.) Further, Appellants allege that Appellees’ promulgation of its political activity policy was an unconstitutional prior restraint and also that the policy was arbitrary, capricious, irrational, and contrary to law. (See R. 3.) Thus, Appellants submit that the court below erred when it rejected their arguments and granted Appellees’ motion for summary judgment, dismissing Appellants’ claims and Verified Petition. 16 POINT I THE COURT BELOW ERRED IN GRANTING APPELLEES’ MOTION FOR SUMMARY JUDGMENT WHICH WAS BASED ON HEARSAY OR, IN THE ALTERNATIVE, RAISED DISPUTED ISSUES OF FACT. The court below erred in granting Appellees’ motion for summary judgment where the lower court not only impermissibly considered information outside of the relevant administrative record in this case and further erred in its application of the facts to the relevant standards on the merits as discussed infra, but also where the court considered hearsay contained in Mr. Cuddeback’s affirmation. Thus, the motion did not comply with New York Civil Practice Law and Rides ("CPLR") §3212(b), and the lower court erred in granting it on procedural grounds, as well as the substantive grounds discussed in Point II, infra. In the alternative, if this Court somehow finds that the lower court’s dispute of the above was proper, the lower court nevertheless erred in granting Appellees’ motion for summary judgment where the new, hearsay-based justification offered by Appellees’ created a disputed, material issue of fact. Moreover, other issues of fact remained in contention in connection with Appellee’s failure to admit to several allegations in the Verified Complaint and Petition. For all of these reasons, the lower court erred in granting Appellees’ motion for summary judgment. A. Appellees’ Failed To Support Their Motion With Affidavits By Persons Having Knowledge Of The Facts. “A motion for summary judgment shall be supported by affidavit” and the affidavit must be made “by a person having knowledge of the facts.” CPLR §3212(b); JMD Holding Corp. v. Congress Financial Corp., 4 N.Y.3d 373, 384-85, 795 N.Y.S.2d 502, 509-10 (2005). A motion for summary judgment must be denied where it is supported by affidavits containing “[mjere 17 conclusions or unsubstantiated allegations or assertions.” Jock v. Landmark Healthcare Facilities, 62 A.D.3d 1070, 1073, 879 N.Y.S.2d 227, 230 (3d Dept. 2009) (quotation omitted). Appellees submitted two affirmations in support of their motion: the affirmation of Assistant Attorney General Louis Jim and the affirmation of Chris Cuddeback. Mr. Cuddeback is an Associate Attorney at the New York State Department of Agriculture and Markets, and his affirmation purportedly serves as the factual predicate in support of the motion. (R. 130, 132.) However, the Cuddeback Affirmation contains limited assertions of personal, first-hand knowledge of the facts at issue and it is littered with legal conclusions. (See R. 132-39.) Mr. Cuddeback’s personal knowledge is limited to his denial of Mr. Kulzer’s outside activities prior to Commissioner Ball’s final determination. (See id.) Also, Mr. Cuddeback asserted that Appellee Agriculture and Markets made its decisions based upon the allegations of Great Lakes Cheese Plant Manager John Jennings- there is no affidavit from John Jennings in support of the motion for summary judgment. (See R. 134-35; see generally, R. 127-227.) Further, the Cuddeback Affirmation failed to state whether these hearsay assertions were ever even communicated to Commissioner Ball prior to the Commissioner’s final determinations and the implementation of the Agriculture and Markets Political Activities Policy. (See R. 132-39.) Appellees assert that the hearsay statement(s) of Mr. Jennings constitute the reason why Commissioner Ball affirmed the outside activity denials and implemented the at-issue Political Activities policy. (See R. 129-139.) Appellees further failed to provide an affidavit from Commissioner Ball in support of the motion for summary judgment, yet Commissioner Ball’s decisions are the primary issue in this matter. (See R. 127-139.) 18 The lower court correctly acknowledged that Mr. Cuddeback’s affirmation contained hearsay. (R. 14.) It nevertheless failed to clearly hold it inadmissible or otherwise expressly state that it was not considered. (See id.) In its decision, the lower court also referenced the factual allegations in Mr. Cuddeback’s Affirmation, submitted as part of Defendants- Respondents’ motion for summary judgment. (See R. 10.) The lower court also appeared to reference the hearsay allegations in Mr. Cuddeback’s affirmation in its decision when it stated that the Appellees could promulgate the at-issue political activities policy where they had concerns “about the judgment and professionalism of the agency, particularly whether a non- departmental agenda, that would disrupt the functioning and integrity of the Department, is pursued during work hours.” (R. 14.) For all of these reasons, the lower court erred in considering and granting Appellees’ motion for summary judgment. B. Appellees Raised Material Issues Of Fact In Their Motion For Summary Judgment. In the alternative, if this Court somehow finds that the lower court’s consideration of the above was proper, the lower court nevertheless erred in granting Appellees’ motion for summary judgment where material issues of fact existed and, indeed, where the hearsay in Mr. Cuddeback’s Affirmation created a material issue of fact. A motion for summary judgment “should be denied where there is any doubt, at least any significant doubt, whether there is a material, triable issue of fact.” Phillips v. Kantor & Co., 31 N.Y.2d 307, 311, 338 N.Y.S.2d 882, 885 (1972); see also, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 505 (1957) (“[t]o grant summary judgment, it must clearly appear that no material and triable issue of fact is presented”). 19 In their Amended Verified Answer, Appellees do not admit to a majority of the allegations set forth in the Plaintiffs’ Complaint. (See R. 111-26.) Additionally, in the Cuddeback Affirmation, Appellees allege, for the first time, that Mr. Kulzer “during a departmental inspection of the Great Lakes Cheese dairy plant in Jefferson County, asked the plant manager if he would be interested in a certain building/cold storage facility that a developer had proposed building in Lewis County, where Kulzer serves as a County Legislator.” (See R. 134, see also, R. 129-31.) The incident was allegedly reported to Director McCue on March 6, 2014. (R. 134.) However, it is not clear from the Cuddeback Affirmation when the incident allegedly occurred. (See R. 132-39.) The Appellees rely upon this allegation as the entire basis for (1) denying Mr. Kulzer’s outside activities, (2) denying Mr. Brown’s outside activities, and (3) implementing a policy that categorically prohibits employees who inspect regulated entities from campaigning for or holding elected office. (See R. 129-39.) The administrative records for Appellants Kulzer and Brown (all issued well after the report of the Great Lakes Cheese incident) establish the grounds for Appellees’ denials of the outside activities of Mr. Kulzer and Mr. Brown. (See R. 72-73, 75, 76-77, 87-91, 98, 101, 106- 09.) These records are completely silent with regards to the allegation that Mr. Kulzer conducted outside activities while on duty. (Id.) As such, the allegation was a new assertion put forth by the Appellees as a reason for denying the outside activities, and it raised a material issue of fact. (See R. 129-39.) Specifically, Appellees purport to use this new allegation to attempt to meet their burden of showing “that the employee’s activity is disruptive to the internal operations of the governmental unit.” (See id.) Mains v. City of Rochester, 2004 U.S. Dist. LEXIS 14826, at *12 (W.D.N.Y. 2004) (quoting Anderson v. Celebrezze, 460 U.S. 780 (1983)); Melzer v. Bd. of 20 Educ., 336 F.3d 185, 197 (2nd Cir. 2003). Since the Appellees raised a material issue of fact as opposed to establishing that there was no issue of fact, the court erred in granting the Appellees’ motion for summary judgment. 21 POINT II THE COURT BELOW ERRED IN GRANTING APPELLEES’ MOTION FOR SUMMARY JUDGMENT AND DISMISSING THE ARTICLE 78 PETITION ON THE MERITS AS WELL. The court below erred in granting Appellees motion for summary judgment dismissing Appellants’ claims and for dismissing the Article 78 Petition where the procedural issues discussed supra compelled dismissal of the motion for summary judgment. Even if the motion for summary judgment fully complied with CPLR §3212, the Appellees failed to establish substantive entitlement to such a drastic remedy. The lower court erred on the merits by granting the motion for summary judgment dismissing Appellants’ claims and dismissing the Article 78 Petition. First, this is particularly true where Appellees relied upon a purported justification for their wrongful, unconstitutional conduct towards Appellants that was alleged for the first time in their motion for summary judgment and is no where found in the administrative records for Appellants Kulzer and Brown. (R. 72-73, 75-77, 87-91, 98, 101, 106-09, 129-39.) With regards to the Article 78 claims at issue, the Appellees relied upon improper grounds never invoked by the agency in the challenged determinations to persuade the lower court that the challenged actions were not arbitrary, capricious, irrational, and contrary to law. (See id.) Specifically, the Defendants’ motion for summary judgment is the first time they allege that Mr. Kulzer conducted outside activities while on duty with the State, and that is the sole basis upon which they ask the Court to grant relief in their motion. (See id.) Second, for many of the reasons articulated infra demonstrating that Appellees’ challenged actions were unconstitutional, as well as in consideration of the administrative record 22 for Appellants Kulzer and Brown and the flawed and inconsistent bases used to deny their requests for outside activities, the court erred in finding that the Appellees’ challenged actions were not arbitrary, capricious, irrational, and contrary to law. Third, the court erred in finding that Appellees were able to meet the burden necessary in order to justify restricting the protected speech of Appellants Kulzer and Brown under the Pickering test. Specifically, Appellees failed to show that Appellant Kulzer and Brown’s protected speech was likely to disrupt the Appellees’ services and that the harm caused by such disruption outweighed the value of Appellant Kulzer and Brown’s expression. The lower court similarly erred where it found that Appellees somehow met their considerable burden of justifying the broad, prior restraint of speech in their Political Activities policy. (See R. 7-17.) Accordingly, the lower court erred in dismissing Appellants’ claims and their Verified Petition. A. Matters Beyond The Grounds Of The Administrative Record May Not Be Considered In The Article 78 Proceeding. “The standard of review in [this Article 78] proceeding is whether the agency determination was arbitrary and capricious or affected by an error of law.” Scherbyn v. Wayne- Finger Lakes Bd. of Coop. Educ. Serv., 77 N.Y.2d 753, 758, 570 N.Y.S.2d 474, 477 (1991); CPLR §7803(3). Furthermore, “[i]t is the settled rule that judicial review of an administrative determination is limited to the grounds invoked by the agency.” Id. citing Aronsky v. Bd. of Educ., 75 N.Y.2d 997, 1000, 557 N.Y.S.2d 267, 269 (1990). A court commits an error of law when it sustains an administrative determination “by substituting a more appropriate basis asserted by [the agency]” after the agency has made its final decision. See Aronsky at 1000-01, 557 N.Y.S.2d at 269; see also, Scherbyn at 759, 570 N.Y.S.2d at 479 (holding that when the 23 respondents’ defense was invoked for the very first time in their answer to the Article 78 petition, “[t]he alternative ground for [the petitioner’s] removal belatedly raised by the respondents and relied upon by the courts below may not serve to sustain her dismissal”). In their motion for summary judgment, Appellees rely entirely upon an allegation that Mr. Kulzer conducted outside activities during an inspection of a regulated entity- an allegation that was never invoked, relied upon, or even referenced by the agency at any point in the administrative record. (See R. 72-73, 75-77, 87-91, 98, 101, 106-09, 129-39.) Appellees’ failure in this regard is inexcusable where they state that they were well aware of this purported allegation throughout the entire administrative review process. (See R. 129-39.) B. Appellees’ Challenged Actions Were Arbitrary. Capricious. Irrational, and Contrary to Law. The lower court further erred in finding that the Appellees’ challenged actions were not arbitrary, capricious, irrational, and contrary to law. Appellants challenge Appellees’ denials of Appellant Kulzer and Brown’s requests for approval to engage in specified outside activities - that is, Appellees’ denial of Appellant Kulzer’s request to continue as a Lewis County Legislator during his off-duty time and its subsequent denial of Appellant Brown’s request to campaign for similar position in Oneida County. (See R. 75-77, 87-91, 98, 101, 106-09.) Appellants alsoa challenge Appellees’ initiation of disciplinary termination proceedings alleging insubordination against Appellant Kulzer for continuing to serve as a Lewis County Legislator during his off- duty time after Appellees’ denied his request. (R. 34-35, 96-97.) Appellants further challenge the sweeping prohibition in Appellees’ Political Activities policy prohibiting employees who inspect regulated entities from campaigning for or holding public office. (See R. 58-64.) 24 First, Appellants Kulzer and Brown challenged the final determinations of Commissioner Ball denying their requests for approval of outside activities, and Appellant Kulzer challenged Appellees’ initiation of disciplinary termination proceedings against him. (See R. 46-58.) Commissioner Ball’s determinations regarding Mr. Kulzer and Mr. Brown contain his rationale for denying the outside activities, and claim that the activities would “create the appearance of a conflict of interest.” (R. 88, 106.) Instead of relying upon the Commissioner’s determinations, as noted supra, the Appellees’ below inappropriately relied upon the allegation that Mr. Kulzer engaged in a previously approved outside activity while on duty with the Agency- the Commissioner did not state that he was relying upon this allegation as rationale for denying the outside activities, nor did the Commissioner allude to such an allegation in his final determinations. (See id.; see also, R. 129-39.) The Cuddeback Affirmation never asserted that the allegation regarding Appellant Kulzer was communicated to Commissioner Ball, and there is no affidavit from Commissioner Ball establishing his knowledge of the allegation. (See R. 132- 39.) As such, the allegation is beyond the “grounds invoked by the agency,” and cannot be used to bolster the administrative decision of Commissioner Ball. Scherbyn at 758, 570 N.Y.S.2d at 477; see, Aronsky at 1000-01, 557 N.Y.S.2d at 269. As stated above, this Court should confine its review of these challenged actions to the Appellees’ rationale as reflected in the administrative record. Such a review demonstrates that the challenged actions were arbitrary, capricious, irrational, and contrary to law. In his final determinations, Commissioner Ball speculated that Mr. Kulzer and Mr. Brown could not possibly balance their time between their official duties and the requested outside activities. (See R. 108-09, 91.) His determinations are not based in fact, because by 25 September 23, 2014, the date that Commissioner Ball signed the final determination regarding Mr. Kulzer’s request, Mr. Kulzer had been appropriately balancing his time between his Agriculture and Markets duties and his legislative duties for nine months. (See R. 27-35, 87-91.) During that time, the Agency gave Mr. Kulzer a satisfactory performance evaluation rating for the six-month recertification for the evaluation period from August 9, 2014 to August 8, 2015. (See R. 30, 83.) The remaining rationale asserted by Commissioner Ball for denying Appellant Kulzer and Brown’s outside activities is so broad and general in nature that the same overgeneralized and speculative purported concern for potential conflicts could be used to deny almost any outside activity. (See R. 87-91, 106-09.) In addition, much of the alleged concerns relied upon by Appellees exist regardless of whether an employee engages in such an outside activity or not. The applicable standard requires more than such general assertions in order for Appellees’ to justify the challenged actions here, particularly where the agency is purporting to impose more stringent restrictions than those otherwise required by law or regulation. See N.Y. Exec. L. §94(16)-(17) (describing JCOPE’s authority to, in part, issue “written advisory opinions,” to “promulgate rules concerning restrictions on outside activities” in regards to New York State Public Officers Law (“ROT”) §§73, 73-a, and 74). For example, in the final determination denying Mr. Brown’s outside activity, Commissioner Ball states that “[t]he public could reasonably perceive that the employee might use his State position to obtain financial support...[a]lternatively, regulated entities could believe that it is in their best interests to support the employee’s campaign financially or otherwise.” (R. 108.) The risk that a State employee might be tempted to use their position to secure unwarranted 26 privileges exists regardless of any outside activities that an employee might hold, rendering Appellees’ purported concern arbitrary and irrational in this particular context. Indeed, the POL prohibited such conduct previously. See POL §74(3)(d). Further, the Commissioner’s determinations are internally inconsistent where they speculate both that entities with which the employee deals during inspections may feel compelled to support the employee “financially or otherwise” and that the public could also perceive entities with which the employee interacts to be “receiving favorable treatment in violation of the public trust.” (See R. 108.) Moreover, the same speculative logic could have been used to deny the Commissioner’s own outside activity as an owner/operator of Schoharie Valley Farms (an entity that is regulated by the Agency and may, or may not, do business with other regulated entities). (See R. 44-46.) If the Commissioner applied the logic used to deny Appellants Kulzer and Brown’s requests to his own conduct, Commissioner Ball should refrain from owning or operating Schoharie Valley Farms because “the public could reasonably perceive that [the Commissioner] might use his State position to obtain financial support” for his farm or to gain the necessary licensing credentials from his own agency. (See R. 90, 108.) “Alternatively, regulated entities could believe that it is in their best interests to support” the Commissioner’s farm “financially or otherwise” by, for example, purchasing goods from his farm. (See id.) Or perhaps the public might suspect that entities regulated by the agency with whom the Commissioner’s business interacts are “receiving favorable treatment in violation of his public trust.” (See id.) The Commissioner’s rationale would, analogously, prevent well-qualified individuals like himself from serving the community, and fails to recognize that his dual role as a regulator and owner/operator of a regulated entity has the potential to affect public perception as well. 27 The Commissioner’s determinations were also irrational where Dairy Products Specialist Is like Appellants Kulzer and Brown only apply New York State and federal laws and regulations while conducting inspections. (See R. 25, 36-37.) There are no local or county standards applied during inspections and, therefore, the Commissioner’s determinations fail to consider the fact that a county legislator’s ability to influence the dairy industry through lawmaking is nonexistent. (See id.; see R. 87-91, 106-09.) Commissioner Ball, however, states that Mr. Brown is “free to...manage a campaign”, which potentially includes the campaign of a State or federal candidate who has the lawmaking ability to affect the dairy industry. (See R. 109.) If it is acceptable to campaign for State and federal positions, it should be acceptable to seek election to county offices as there is a lesser potential for a conflict between a county position and a Dairy Products Specialist 1. These considerations further compel a finding that Appellees’ denials, and concomitant initiation of disciplinary proceedings against Mr. Kulzer on this basis, were arbitrary, capricious, irrational, and contrary to law. Additionally, Appellees’ denials and concomitant initiation of disciplinary proceedings against Appellant Kulzer all stem from the same erroneous failure to adhere to prior precedent on the part of Appellee Agriculture and Markets. “A decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reasons for reaching a different result on essentially the same facts is arbitrary and capricious.” Tall Trees Constr. Corp. v. Zoning Bd. of Appeals, 97 N.Y.2d 86, 93 (2001) (citations omitted); see also, Charles A. Field Del. Serv. v. Roberts, 66 N.Y.2d 516, 519-20 (1985); Knight v. Amelkin, 68 N.Y.2d 975, 977 (1986); Moore v. Zoning Bd. of Appeals, 2015 N.Y. Slip. Op. 32161(U), at *7 (N.Y. Sup. Ct. Suffolk Cnty., Aug. 7, 2015). Appellees’ previously approved an identical request by Appellant Kulzer, subject 28 to agency-imposed restrictions. (R. 72-73.) Appellees then ultimately denied his subsequent request to continue in the position of county legislator, after Director McCue initially approved the request again. (See R. 75-77, 87-91.) Similarly, Appellees’ denied a nearly identical request from Appellant Brown. (R. 98, 106-09.) For all of these reasons, the lower court erred in finding otherwise when it concluded simply that, “The Department may protect itself from the sense or the appearance of impropriety by its employees while working on behalf of respondents.” (R. 15.) It was further in error for the court to find Appellees’ were reasonable to expect that employees’ candidacy, for employees who inspect and regulate an industry, “could conflict with policies of the Department” and that Appellees’ interest in reducing “potential unethical behavior” outweighed Appellants’ interests in holding office. (R. 14.) Concomitantly, the court erred in finding that the resultant termination proceedings against Appellant Kulzer were likewise rational since such a finding is based on its erroneous belief that Appellees acted appropriately in denying the outside activities in the first instance. (See R. 16.) Second, Appellants further challenge the sweeping prohibition in Appellees’ Political Activities policy preventing employees who inspect regulated entities from campaigning for or holding public office. (See R. 58-64.) As discussed supra, Appellees’ cannot rely on the hearsay allegations in Cuddeback’s Affirmation to support its promulgation of the Political Activities policy restriction challenged herein. (See R. 132-39.) Appellees’ argued that the Political Activities policy was enacted to “prevent a recurrence of the Kulzer incident or similar incidents.” (See R. 130-31, 138.) 29 Moreover, Appellees’ position, that the alleged and unsupported actions of one employee justify the sweeping prohibition placed upon all employees impacted by the policy, is untenable in any event. It is arbitrary, capricious, irrational, and contrary to law to claim that such a restriction on employee speech and association could be based on the alleged wrongdoing of a single employee. This justification would provide the Executive Branch of New York State with a license to simply exclude all employees from engaging in activities where one employee has potentially engaged in misconduct, instead of considering employees’ requests for approval on an individual basis. Further, to the extent Appellees’ attempt to rely on similar arguments to those made in the administrative denials of Appellants Kulzer and Brown, the policy is arbitrary, capricious, irrational, and contrary to law for all of the reasons articulated above. Appellees failed to “make a prima facie showing of entitlement to judgment as a matter of law” and have set forth no reason to award such a “drastic remedy.” JMD Holding Corp., 4 N.Y.3d at 384; Sillman, 3 N.Y.2d at 404. Thus, the lower court erred in dismissing Appellants’ claims in this manner and by dismissing Appellants’ Article 78 Petition. C. Appellants’ Speech Is Constitutionally Protected And Appellees’ Have Failed To Otherwise Justify Their Unlawful Actions. The lower court erred in finding that Appellees were able to meet the burden articulated in Pickering v. Board of Education, 391 U.S. 563 (1968), to justify restricting the protected speech of Appellants Kulzer and Brown, and concomitant initiation of disciplinary termination proceedings against Appellant Kulzer. Specifically, Appellees failed to show that Appellant Kulzer and Brown’s protected speech was likely to disrupt the Appellees’ services and that the harm caused by such disruption outweighed the value of Appellant Kulzer and Brown’s 30 expression. The lower court similarly erred where it found that Appellees somehow met their considerable burden of justifying the broad, prior restraint of speech in their Political Activities policy. (See R. 7-17.) Thus, the lower court improperly dismissed Appellants’ constitutional claims. Although the lower court purportedly applied the Pickering test to Appellant Kulzer and Brown’s claims, it erred in its application of the standard to the facts surrounding Appellees’ wrongful denial of Appellant Kulzer and Brown’s requests to engage in outside activities. (See id.) When citizens speak on matters of public concern, their speech “lies at the heart of the First Amendment, which ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’” Caruso v. City of New York, 973 F. Supp. 2d 430, 445-46 (S.D.N.Y. 2016); citing Lane v. Franks, 134 S. Ct. 2369, 2377 (2014) (other citations omitted). The First Amendment also protects the rights of public employees in this regard because “[ajfter all, public employees do not renounce their citizenship when they accept employment.” Id. quoting Lane, supra, (other citations omitted). The First Amendment indisputably protects the act of running for elective, public office as a form of speech. Castine, 756 F.3d at 176. Where the employee has set forth a prima facie case of an adverse employment action for engaging in protected First Amendment activity, summary judgment is not appropriate unless the employer can establish either that it would have taken the same adverse action in the absence of the protected speech and/or that the employee’s “expression was likely to disrupt the government’s activities and...the harm caused by the disruption outweighs the value of’ the 31 employee’s expression. See, e.g., Caruso at 445-46 citing Anemone v. Metro. Transp. Auth, 629 F.3d 97, 114-15 (2nd Cir. 2011) (other citations omitted). This second defense is commonly referred to as the Pickering test as articulated by the Supreme Court. See, e.g., Caruso at 445-46. The Court must engage in the Pickering test to determine “the most appropriate possible ‘balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Melzer, 336 F.3d at 192; see United States v. Nat 7 Treas. Empl. Union, 513 U.S. 454, 468 (1995) (quoting Pickering and holding that the government must show that the employees’ interests “are outweighed by that expression’s ‘necessary impact on the actual operation’ of the Government”); see also, N.Y.S. Law Enfcmt. Offs. Union v. N.Y., 255 A.D.2d 54 (1999) aff’d 94 N.Y. 2d 321 (1999) (“[A] restriction upon an employee’s speech can be justified only where the employer can show that its interest in effectively performing a public service outweighs the employee’s 1st Amendment right to comment upon a matter of public concern”). The Second Circuit Court of Appeals has reflected that in applying the Pickering test, ‘“[T]he state’s burden in justifying a particular discharge varies depending upon the nature of the employee’s expression.’ ‘The more the employee’s speech touches on matters of significant public concern, the greater the level of disruption to the government that must be shown.’” Jackler v. Byrne, 658 F.3d 225, 237 (2nd Cir. 2011) (citations omitted). Indeed, it is not a matter of mere reasonableness when evaluating the government’s actions but, rather, whether: (1) the government’s prediction of disruption the speech will cause is reasonable; (2) the potential for disruption outweighs the value of the speech; and (3) the 32 government’s adverse action is not in retaliation for the speech, but because of the potential for disruption. Castine v. Zurlo, 756 F.3d 171, 175 (2nd Cir. 2014); see also, Anemone, 629 F.3d at 119 (2nd Cir. 2011). All of the reasons discussed supra, which establish Appellees’ challenged actions are arbitrary, capricious, irrational, and contrary to law, also prevent Appellees from meeting their burden under the Pickering test to justify their otherwise unconstitutional actions. The Commissioner’s determinations were not reasonable, as articulated supra, and Appellees’ have failed to establish that the potential for disruption outweighs the value of Appellants’ speech. See also, Liverman v. City of Petersburg, 844 F.3d 400, 408-09 (4th Cir. 2016) (“[T]he speculative ills targeted by the social networking policy are not sufficient to justify such sweeping restrictions on officers’ freedom to debate matters of public concern”). Appellees’ initiation of disciplinary proceedings against Appellant Kulzer for continuing to hold elected public office is, accordingly, also unconstitutional. Commissioner Ball’s determinations fail to offer a legitimate example of an inherent conflict between the position of Dairy Products Specialist 1 and the outside activities requested. (See R. 87-91, 106-09.) Rather, Commissioner Ball offers highly speculative reasons for denying the outside activities. (See id.) For example, the Commissioner cites the “temptation” of discussing political matters with regulated entities and states that the two positions would “put the employee in the difficult position of wearing two hats at the same time.” (R. 91, 108-09.) If potential “temptation” and the fact that an employee would wear “two hats at the same time” were sufficient grounds to show that an employee’s speech or association hinders the efficiency of the services provided by the State, then there would be an extreme restriction over individuals’ 33 rights in many different contexts without any real showing that a conflict exists. Notably, Commissioner Ball’s final determinations issued to Mr. Kulzer and Mr. Brown fail to address the fact that Mr. Kulzer held both positions for over eight months before Commissioner Ball signed the determination issued to Mr. Kulzer. (See R. 27-35, 87-91.) Further, the lower court’s application of the test was in error, as it failed to cite to a single case where such broad, speculative and inconsistent rationale was found by another court to justify otherwise unconstitutional First Amendment restrictions. (See R. 7-17.) Significantly, the lower court also largely relied upon cases that involved challenges to law or regulation, as compared to Appellants’ challenge in this case to the unconstitutional, independent actions of the executive agency at issue. See Nat 7 Treas. Empl. Union at 468 (noting “a stronger presumption of validity” is given to a legislative judgment “than to an individual executive’s disciplinary action.”). In the this case, there is no law or regulation at issue; rather, this case involves the unilateral acts and decisions of executive branch individuals that were not subjected to the opportunity for scrutiny that takes place before a bill or proposed regulation becomes law. In stark contrast to the facts of this case, in Castine, supra, the court dismissed the First Amendment claim of a plaintiff who protested her temporary removal from office as Clinton County Election Commissioner - a removal that occurred pursuant to law prohibiting her from holding her position simultaneous with her candidacy for town justice. 756 F.3d at 172 (emphasis added). In that case, the Election Commissioner had a “governing role” in supervising the conduct of elections, which could have included the plaintiffs own election, and the purpose of the law which prohibited the plaintiff from holding both positions at the same time was to prevent a direct conflict of interest. Id. at 176-77. The court in that case noted that the law 34 which prevented plaintiff from holding both positions was the type supported by the United States Constitution, since it affords states substantial leeway to ensure the fairness of their elections. Id. at 177. Critically, Appellants’ are not challenging law or regulation in this case and there is no direct or otherwise evident conflict in this case, as there was in Castine. In Anemone, the court’s dicta indicates that the defendant would have survived the Pickering test where public disclosure of security matters by a top-level official for security weighed heavily against the plaintiff, as well as the fact that the value of his speech was greatly diminished where it was inaccurate and embellished. 629 F.3d at 119 (dismissing First Amendment claims because plaintiff would have been terminated regardless of potentially protected speech). Even considering the court’s dicta, that case is inapposite because this case does not involve high level officials or even employees designated as policymakers pursuant to JCOPE. This case also does not involve government security and the value of the speech in this case is not diminished by inaccuracy or embellishment. Similarly, the lower court’s citations to United States Civil Service Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548 (1973), Broadrickv. Oklahoma, 413 U.S. 601 (1973), and Fletcher v. Marino, 882 F.2d 605 (2nd Cir. 1989), do not support the lower court’s dismissal of Appellants’ claims as each case involved a challenge to existing law. National Ass’n of Letter Carriers upheld the Hatch Act (in its prior form) as constitutional, and Broadrick upheld a Hatch Act-equivalent law for State employees as constitutional. Both cases involved laws enacted by the appropriate legislative body which clearly restricted partisan political activity, and the challenged laws did not extend to nonpartisan political activity. National Ass’n of Letter Carriers at 576; Broadrick at 602; see also, Bauers v. Cornett, 865 F.2d 1517, 1524 (8th Cir. 35 1989) (finding Congress has never restricted the non-partisan activities of State or local employees since the Hatch Act only covered partisan political activity). Fletcher, supra, did not even involve a Pickering analysis, as that case dealt with a law limiting community school board members from holding certain, specified types of elective public office and excluded county- level paity membership from its prohibition. The case of Piscottano v. Murphy, 511 F.3d 247, 253-54, 276 (2nd Cir. 2007), is also distinguishable. In conducting its Pickering analysis, that court noted that the employer correctly concluded that having correctional officers associating with an organization that was known to engage in and promote criminal enterprises such as distributing drugs and gang violence, was detrimental to the employer’s operations and reflected negatively upon it. The court’s analysis in that case involved specific examples of potential conflicts of interest, potential disruptions, threats to safety and threats to the integrity of the employer’s operations that were linked to actual duties and goals of the department and aspects of the affiliation or membership, as opposed to the baseless speculations and overgeneralizations discussed supra, relied upon by Appellee Commissioner in this case. See id. at 276-77. Further, courts have noted that law enforcement organizations, unlike Appellee Department of Agriculture & Markets, have “heightened” interest in order, loyalty, morale, and harmony in these types of cases. See, e.g, Oladeinde v. City of Birmingham, 230 F.3d 1275, 1293 (11th Cir. 2000); see also, City of Petersburg 844 F.3d at 408 (noting the added importance of deferring to police departments because they are “’paramilitary - discipline is demanded, and freedom must be correspondingly denied.’” (citation omitted)). Appellees’ failed to meet their burden under the Pickering test and fail to justify 36 restricting the protected speech of Appellants Kulzer and Brown. Accordingly, the lower court erred in dismissing their constitutional claims on summary judgment. (See R. 7-17.) Second, the lower court further erred where it found that Appellees somehow met their considerable burden of justifying the broad, prior restraint of speech in the Political Activities policy challenged by Appellants. (See R. 7-17.) Even though the Supreme Court’s case precedent typically involves cases of individualized, employee speech in which the employer allegedly punishes speech post-hoc, the Court in National Treasury Employees Union, supra, held that the same analysis was nonetheless appropriate for a situation in which the government precludes a broad category of speech for a large number of potential speakers upfront. 513 U.S. at 467. In National Treasury Employees Union, the Supreme Court struck down a law that generally prohibited federal employees from making speeches or writing articles for compensation as violative of their First Amendment right to free speech. 513 U.S. at 457. Congress’ motivation in passing this law was its belief that federal employees were augmenting their salaries by speaking and writing for money on the side, and that this somehow made them beholden to the interests and entities with whom they were dealing even when the subject of their external activities did not relate to their work. Id. at 457-61. “Even though respondents work for the Government, they had not relinquished ‘the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest.” Id. at 465 (quoting Pickering v. Bd. of Educ., 391 U.S. 563 (1968)). That Court noted that the content of the employees’ speech was not related to their jobs, “and does not even arguably have any adverse impact on the efficiency of the offices in which they work. . . . Neither the character of the authors, the subject matter of 37 their expression, the effect of the content of their expression on their official duties, nor the kind of audiences they address has any relevance to their employment.” Id. Where the employees’ directed their speech to a public audience, outside the workplace, and the content was unrelated to their employment, the law violated their First Amendment rights. Id. at 466. For that reason, the Government was unable to support its claim that it banned certain speech because of workplace disruptions. Id. at 470. A widespread ban not only imposes a burden upon the employees, but it also burdens the public’s right to choose suitable candidates for office. See id. at 470; see also, Mains, 2004 U.S. Dist. LEXIS 14826, at *11. In support of such a widespread ban, a government argument that “a wholesale prophylactic rule is easier to enforce than one that requires individual nexus determinations” will fail because a “blanket burden on the speech of’ a large number of employees “requires a much stronger justification than the...claim of administrative convenience.” Nat’l Treas. Empl. Union, 513 U.S. at 474. Despite its application of Pickering, that Court assigned a heavier burden to the government in that case as compared to past cases - like Pickering - in which the government imposed discipline on public employees in reaction to their speech after the fact. Id. at 466, 468. In holding that the law violated the First Amendment rights of these employees, the Court emphasized that the breadth of the law “makes the government’s burden heavy.” Id. at 466. That Court indicated that the up-front, widespread ban imposed by the government was more troubling than the reaction of a “single supervisory decision” because it “chills potential speech before it happens.” Id. at 468. For these reasons, the Government’s burden is greater with respect to this statutory restriction on expression than with respect to an isolated disciplinary action. The Government must show that the 38 interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression’s ‘necessary impact on the actual operation’ of the Government. Id. (citation omitted); see also, Gannett Co. v. DePasquale, 55 A.D.2d 107, 112 (4th Dept. 1976) mod f 43 N.Y.2d 370 (1977) (“Prior restraint on speech and publication is ‘the most serious and least tolerable infringement on First Amendment rights’” (quoting Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976)); see also, Curie v. Ward, 59 A.D.2d 286, 289 (3d Dept. 1977), mod f 46 N.Y.2d 1049 (1979) (“a significant abridgment of associational freedom cannot be justified upon a mere showing of a legitimate State interest...[t]he interest must be compelling, and the burden is on the State to show the existence of such an interest”); Holland v. Dillon, 531 N.Y.S.2d 467, 469 (N.Y. Sup. Ct. Onondaga Cty., 1988) (“Any enactments that regulate speech must effectuate a legitimate State interest, and must be narrowly drawn so as not to interfere needlessly with protected First Amendment rights”). Appellees have failed to offer any adequate explanation for their widespread ban and prior restriction on speech and association where they have prohibited anyone who inspects regulated entities from campaigning for or holding elected office. Again, there is nothing in the record identifying an inherent conflict or reasonable appearance of a conflict between such positions and campaigning for and subsequently holding any elected office, thus there is no basis to sustain such a broad rule. In their motion for summary judgment to the lower court, Appellees’ essentially offered a “justification...of administrative convenience,” which, under Supreme Court precedent, is unacceptable. Nat’l Treas. Empl. Union, 513 U.S. at 474. Appellees have thus also failed to sustain their considerable burden of justifying the sweeping, unconstitutional restriction of speech and association in the challenged Political 39 Activities policy. The lower court erred in dismissing this claim as well, in conjunction with granting Appellees’ motion for summary judgment below. (See R. 7-17.) 40 CONCLUSION For all of the reasons set forth in this brief and contained in the Record on Appeal, Appellants respectfully request that the Court grant the relief requested. DATED: February 22, 2017 Albany, New York LISA M. KING, ESQ. Attorney for Appellants 1168-70 Troy-Schenectady Road P.O. Box 12414 Albany, New York 12212-2414 (518) 785-1900, Ext. 241 By:Lÿ EjsSICA C. CAGGIANOf n Counsel TO: Jonathan Hitsous, Assistant Attorney General ERIC T. SCHNEIDERMAN, Attorney General State of New York The Capitol Albany, New York 12224-0341