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.BriefN.Y.Aug 29, 2018APL-2017-00237 To be argued by: JONATHAN D. HITSOUS Time requested: 10 minutes524561 Albany County Index No. 3043-15 Supreme Court of tfje ibtate of Jleto |§orfe Appellate ©iPtgton -®fjtrii ©epartmrnt 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, GREGORY KULZER, and RONALD BROWN, Appellants, -against- NEW YORK STATE DEPARTMENT OFAGRICULTURE & MARKETS, and RICHARD A. BALL, individually and in his official capacity as Commissioner of the New York State Department of Agriculture & Markets, Respondents. BRIEF FOR RESPONDENTS , ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondents The Capitol Albany, New York 12224-0341 (518) 776-2044 VICTOR PALADINO JONATHAN D. HITSOUS Assistant Solicitors General • of Counsel Dated: May 19, 2017 TABLE OF CONTENTS j- PAGE iiTABLE OF AUTHORITIESI PRELIMINARY STATEMENT l QUESTIONS PRESENTED l STATEMENT OF THE CASE A. The Outside-Activity Rules at the Department of Agriculture and Markets B. Kulzer and Brown’s Outside-Activity Requests .... C. Judicial Proceedings D. Supreme Court’s Decision . 3 I 3 ,3 5 8 I 10 11ARGUMENT Point II The Department’s Revised Outside-Activities Policy is Constitutional . . i 11 Point II The Department Rationally Disapproved Kulzer and Brown’s Outside-Activity Requests . CONCLUSION . 20 27 | I6 iI TABLE OF AUTHORITIES PAGECASES Anemone v. Metro. Transp. Auth., 629 F.3d 97 (2d Cir. 2011) .. 12 Ass’n of Secretaries to Justice of Supreme & Surrogates Ct. in City of N.Y. v. Office of Ct. Admin., 75 N.Y.2d 460 (1990) . 24 Belle, Matter of v. Town Bd. of Town of Onondaga, 61 A.D.2d 352 (4th Dep’t 1978) 15 I Blackburne, Matter of, 87 N.Y.2d 660 (1996). ! Boyle, Matter of v. Kirwin, : 39 A.D.2d 993 (3d Dep’t 1972) ..... 19s 15-16, 18 : Brenner, Matter of v. Dep’t of Health, 43 A.D.Sd 595 (3d Dep’t 2007) .. Briggs v. U.S. Merit Sys. Prot. Bd., 331 F.3d 1307 (D.C. Cir. 2003) . 21 19 Broadrick v. Oklahoma, 413 U.S. 601 (1973) 16, 17I I t! Cascino, Matter of v. Judges of the Albany Cty. Ct., 95 A.D.3d 1458 (3d Dep’t 2012) . 9ns Castine v. Zurlo, 756 F.3d 171 (2d Cir. 2014) passim ! Dupras, Matter of v. Cty. of Clinton, 213 A.D.2d 952 (3d Dep’t 1995)1 * 23fi 1 Dykman, Matter of v. Symonds, 54 A.D.2d 159 (4th Dep’t 1976)f 24 I f ! ii i TABLE OF AUTHORITIES (cont’d) PAGECASES (cont’d) Fletcher v. Marino, 882 F.2d 605 (2d Cir. 1989) 14, 17, 24 Golden v. Clark, 76 N.Y.2d 618 (1990) 12, 13, 15 Kane v. City of Albuquerque, 358 P.2d 249 (N.M. 2015) 16 Kittle, Matter of v. DAmico, 141 A.D.3d 991 (3d Dep’t 2016), Iv. denied, 28 N.Y.2d 917 (2017) 21 Kopyt, Matter of v. Governor’s Office of Emp. Relations, 55 A.D.3d 1179 (3d Dep’t 2008) 24 Lecci, Matter of v. Looney, 33 A.D.2d 916 (2d Dep’t 1970) 26 1 Lynch v. Ackley, ' 811 F.3d 569 (2d Cir. 2016) . Mallick, Matter of v. Div. of Homeland Sec. & Emergency Servs., ! 145 A.D.3d 1172 (3d Dep’t 2016) ...' 12 21,22 McCormick v. Edwards, 646 F.2d 173 (5th Cir. Unit A 1981), 16 I McEntee v. U.S. Merit Sys. Prot. Bd., 404 F.3d 1320 (Fed. Cir. 2005) , 18-19 Menon, Matter of v. Dep’t of Health, 140 A.D.3d 1428 (3d Dep’t 2016) 25 Merle v. United States, 351 F.3d 92 (2d Cir. 2003) 13 iii j TABLE OF AUTHORITIES (cont’d) PAGECASES (cont’d) Molina-Crespo v. U.S. Merit Sys. Prot. Bd., 547 F.3d 651 (6th Cir. 2008) 13, 18 Moran Towing Corp., Matter of u. Urbach, 99 N.Y.2d 443 (2003) 17 i Nicholas, Matter of v. Kahn 47 N.Y.2d 24 (1979)...! .... 26 Painter v. Graley, 70 Ohio St.3d 377 (1994) 16 Pell, Matter of v. Bd. of Educ., 34 N.Y.2d 222 (1974) 21I 1 Phillips v. City of Dallas, 781 F.3d 772 (5th Cir. 2015) 16 Pickering v. Board of Education, 391 U.S. 563 (1968) 12, 14 Purdy, Matter of v. Kreisberg, 47 N.Y.2d 354 (1979).... 13, 16 Rushin, Matter ofv. Comm’r ofDep’t ofCorr. Serus., 235 A.D.2d 891 (3d Dep’t 1997) 20 Signorelli v. Evans, 637 F.2d 853 (2d Cir. 1980) 13 Simard v. Bd. of Educ. of Town of Groton, 473 F.2d 988 (2d Cir. 1973) 19 Snyder v. Unemployment Comp. Bd. of Review, 509 Pa. 438 (1985) 16 iv I TABLE OF AUTHORITIES (cont’d) CASES (cont’d) PAGE Sweeney v. Cannon, 32 N.Y.2d 633 (1972) 20 United States v. National Treasury Employee Association, 513 U.S. 454 (1995) 18 U.S. Civ. Serv. Comm’n v. Nat’l Assoc, of Letter Carriers, 413 U.S. 548 (1973) . 15 Warder, Matter of v. Bd. of Regents, 53 N.Y.2d 186 (1981) 21 Whitehouse v. Moran, 808 A.2d 626 (R.I. 2002), 16 STATE CONSTUTUTION article I, § 8 3, 9 STATE STATUTES Agriculture and Markets Law §§ 1,6 §§ 3, 16 . §§ 46, 46A 3 3 3 C.P.L.R. article 78 § 7803(3). passim 21 Public Officers Law § 73(8)(d) § 74(2) § 74(3)(d) § 74(3)(f) . § 74(3)(h) 4 4 4 4, 22 4 v TABLE OF AUTHORITIES (cont’d) PAGE STATE RULES AND REGULATIONS 19 N.Y.C.R.R. § 932.10 4 UNITED STATES CONSTITUTION First Amendment 3, 9, 13, 18 FEDERAL STATUTES 5 U.S.C. § 1502 § 7323 ...18 18 Pub. L. 112-230, § 2 18n MISCELLANEOUS N.Y. Ethics Op. 92-16 Op. Atty. Gen. (Inf.) 2003-3 22, 23 22 vi PRELIMINARY STATEMENT To avoid appearances of impropriety, the New York State Department of Agriculture and Markets requires its employees to obtain its approval before engaging in many outside activities, including campaigning for or holding elected office. Petitioners Gregory Kulzer and Ronald Brown, Department employees who inspect private dairy companies, requested its approval to serve as elected county legislators. The Department disapproved their requests, finding that service in these dual roles posed the potential for an incurable conflict of interest and could adversely affect their management of official time. After disapproving these requests, the Department revised its outside-activities policy to forbid similarly situated employees from continuing in their official roles while campaigning for or holding elected office. Kulzer, Brown, and the Public Employees Federation (their union) . commenced this hybrid declaratory action/article 78 proceeding, asking for a declaration that the Department’s revised outside-activities policy violated their free-speech rights, and to annul the determinations on Kulzer and Brown’s individual requests as arbitrary and capricious. By order entered April 28, 2016, Supreme Court, Albany County (Hard, J.), dismissed the action, concluding that the Department’s interest in preserving its integrity outweighed its employees’ interest in continuing in their official roles while holding elected office (Record [“R”] 14). The court also found that a rational basis supported the disapproval of Kulzer and Brown’s individual requests (R15). These findings were correct. Although Department employees retain free-speech rights under the United States and New York Constitutions, the Department reasonably found that one form of speech— campaigning for and holding elected office— could cause significant disruption, and adopted an even-handed, limited approach to avoid such disruption. Because the Department’s interest outweighed its employees’ interest in serving the dual role of employee and elected official, the restriction was constitutional. Rather than dismissing the complaint, however, Supreme Court should have issued a declaration in the Department’s favor. For article 78 purposes, the Department acted rationally. The facts available to the Department gave it ample reason to believe that the risk of conflicts of interest and time-management problems were too high to let Kulzer, Brown, and similarly situated employees to simultaneously hold elected public office while inspecting private dairy companies. Accordingly, this Court should modify Supreme Court’s judgment by declaring that the i Department’s revised outside-activities policy is not unconstitutional, and affirm as modified. 2 QUESTIONS PRESENTED Is the Department’s revised outside-activities policy— which1.! prohibits inspectors from campaigning for or holding elected office— consistent with the First Amendment and article I § 8 of the New York Constitution? Supreme Court answered this question “yes.” Did the Commissioner of Agriculture and Markets rationally2. determine that Kulzer and Brown’s proposed service as county legislators posed an unacceptable risk to create conflicts of interest and time-management problems? Supreme Court answered this question “yes.” STATEMENT OF THE CASE A. The Outside-Activity Rules at the Department of Agriculture and Markets The New York State Department of Agriculture and Markets (“the Department”) is responsible for implementing the state’s policy to “promote, foster, and encourage the agricultural industry” through programming and regulation. Agric. & Mkts. Law §§ 3, 16. An important component of these responsibilities concerns regulation of the dairy industry. Id. §§ 46, 46-A. The Commissioner of Agriculture and Markets* who heads the Department, may create rules defining Department employees’ duties and setting forth the manner in which those duties are exercised. Id. §§ 1, 6. 3 Like all state employees, Department employees must abstain from performing their official duties in a manner that poses a conflict between the public interest and their private interests. Pub. Off. Law § 74(2). Thus, all employees are prohibited from using' their official positions “to secure unwarranted privileges or exemptions for [themselves] or others.” Id. § 74(3)(d). Employees must avoid both actual conflicts of interest and the appearances of conflict, that is, conduct that gives “reasonable basis for the impression that any person can improperly influence [them]” or more generally “raise[s] suspicion among the public that [they are] likely to be engaged in acts that are in violation of [their] trust.” Id.§ 74(3)(f), (h). The Public Officers Law sets a floor; individual agencies may apply more restrictive rules to their own employees. See, e.g., Id. § 73(8)(d); 19 N.Y.C.R.R. § 932.10. Consistent with these principles, the Department requires its employees to obtain its approval to engage in “outside activities,” which it defines broadly to include uncompensated activities like holding elected office. (R150.) s Approvals of outside-activity requests remain effective for one year. If the ! Department disapproves, employees must immediately discontinue the activity. Employees may ask the Commissioner to reconsider disapprovals. (R150-51.) The Department permits its employees to participate in politics subject to these rules. Generally, this includes campaigning for and holding elected 4 office. Effective April 2015, however, “any 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).” (E153.) B. Kulzer and Brown’s Outside-Activity Requests Since the 1980s, Kulzer and Brown have worked at the Department in the position of dairy products specialist I. (R248, 257.) In their official capacities, they interacted with, and exercised power over, private dairy companies in multiple ways: • Inspecting the facilities, equipment, and output of dairy companies for quality control and compliance with New York and federal law; • Conducting field investigations of wholesalers and retailers for compliance with packaging, labeling, storage, and pricing laws; • Examining farm and plant records; • Testing samples taken during inspections to ensure that the records are accurate; • Recommending whether to license facilities; • Training dairy industry personnel; and • Responding to inquiries from the dairy industry and the public. (R140.) Kulzer and Brown submitted outside-activity requests to the Department independently of each other. Kulzer’s request came first, in March 5 2013. Kulzer requested approval to campaign for and hold an elected position in the Lewis County Legislature. (R142.) The Department approved his request, provided that he: (a) conduct this activity outside official working hours; (b) use only non-Department resources for the activity; and (c) recuse himself from any matters that could involve the Department. (R73.) The approval was effective until March 31, 2014. (Ri42-43.) Kulzer campaigned for a seat on the Lewis County Legislature and ultimately won election. He was sworn in on January 27, 2014. (R248.) Kulzer submitted a renewal request later that year. (R210.) This time, the Department disapproved Kulzer’s request (R210), based on the potential for a conflict or the appearance of a conflict. The Department elaborated that one of the companies Kulzer inspected as a dairy products specialist sponsored the Lewis County Fair, an.event he oversaw as a county legislator. It noted that Kulzer chaired the County Legislature’s Agriculture Committee— something he did not disclose on his application. He also served on the Lewis County Soil and Water Conservation District Board, which had contracts with the Department. The Department concluded that Kulzer’s official duties were “too intertwined” with his duties as a county legislator, such that the public could become suspicious that he was acting.unethically. (R211.) Kulzer asked the Commissioner to reconsider. He admitted that he chaired the Agricultural Committee, but only because his “extensive 6 agriculture/dairy background allows [him] to understand the important issues facing the agriculture community in the county.” (R213.) He proposed to recuse | himself from matters that “I believe to be a conflict of interest” and declared that he had not encountered such matters yet. (R213-14.) The Commissioner upheld the disapproval on two grounds. The primary ground was that Kulzer’s outside activity created the appearance of a conflict. (R215.) Observing that Kulzer exercised considerable discretion over private companies as a Department employee while addressing issues involving those same companies as a county legislator, the Commissioner found that the public could reasonably believe that Kulzer used his official duties to further his legislative agenda or favor supporters. Even if Kulzer did no such thing, the Commissioner found, companies he inspected might feel pressure to support him as a legislator. As an example, the Commissioner described a situation where Kulzer’s economic-development advocacy could pressure a dairy manufacturer to locate a facility inside Lewis County. (R217.) The Commissioner also determined that the positions were incompatible such that recusal could not cure the appearance of a conflict. (R217-18.) As a second ground, the Commissioner found that Kulzer’s legislative responsibilities could lead to difficulty in managing his work hours given the potential for constituents to raise county issues while he was working. (R218.) 7 Around the time the Commissioner was issuing a final determination on Kulzer’s request, Brown submitted his outside-activity request, seeking approval to campaign for the Oneida County Legislature. Brown’s request was similarly disapproved on the ground that his candidacy would create the -appearance of a conflict. (R220-21.) Brown asked the Commissioner to reconsider, also pledging to recuse himself as necessary. (R222.) The Commissioner upheld the disapproval of Brown’s request as well, resting 1 largely on the same reasoning he used when determining Kulzer’s request. (R226-27.) Kulzer and.Brown both sought intervention from the Joint Commission on Public Ethics. The Joint Commission, however, deferred to the Department because neither were “policymakers” within its jurisdiction. (R92-93, 102-03.) The Department gave Kulzer a choice to resign his position or face disciplinary action. (R95.) Kulzer refused to resign, and the Department initiated disciplinary action seeking his termination. (R96-97.) The disciplinary proceeding has been stayed pending a final outcome of this lawsuit. Brown, on the other hand, chose not to run. C. Judicial Proceedings Petitioners commenced this hybrid declaratory action/article 78 proceeding challenging the determinations and the Department’s revised outside-activities policy. (R22.) Their myriad claims fall into two categories. 8 • In the first category, petitioners alleged that the disapprovals of Kulzer and Brown’s outside-activity requests, and the revised outside-activities policy forbidding other inspectors from holding public office, violated their rights to free speech under the First Amendment and New York Constitution article I, § 8. (R46-49, 53-55, 58-59.) In the second category, they alleged that the Department acted arbitrarily and capriciously when disapproving Kulzer and Brown’s outside-activity requests and revising its outside-activities policy, because the individual determinations rested on a faulty rationale and the revision rested on no rationale at all. (R49-52, 55-58, 61.)1 The Department moved for summary judgment on the constitutional claims and asked the court to dismiss the article 78 claims. In support, the Department submitted a supporting affirmation from Chris Cuddeback, its Deputy Ethics Officer. (R132.) According to Cuddeback, a dairy plant manager complained to the Department that, during a March 2014 inspection, Kulzer solicited his company’s interest in using a new cold storage facility that was being built in Lewis County. (R134.) The plant manager’s complaint factored into the Department’s decision to revise its outside-activities policy in April 2015: concerned that the plant manager’s perception illustrated an appearance 1 Petitioners’ also alleged that the Department lacked authority to revise its outside-activities policy. (R62-64.) However, they have abandoned this claim on appeal by declining to pursue it beyond fleeting references (Br. at 2-3, 14). Matter of Cascino v. Judges of the Albany Cty. Ct., 95 A.D.3d 1458, 1460 (3d Dep’t 2012). 9 of impropriety, the Department determined that “there is a significant potential for a conflict of interest for employees who inspect regulated entities and who also hold an elective office.” (R137-38.) In their reply papers, Kulzer admitted that he did speak to the plant manager about “a potential cold storage facility in Lewis County,” but he claimed he did so “on my own time.” (R250.) Petitioners maintained that Kulzer’s denial about when the meeting occurred raised a triable question of i fact that precluded summary judgment. (R264, 307.) Petitioners also attacked the plant manager’s complaint as outside the administrative record. (R245.) D. Supreme Court’s Decision Supreme Court dismissed the hybrid action in its entirety. With respect to the constitutional claims, the court observed that governmental employers could limit employee speech, including holding elected office, to safeguard their integrity. (R13.) The court found that allowing employees to continue “inspect[ing] and regulating] an industry on behalf of the Department” while serving as elected officials could reasonably be expected to create conflicts of interest as inspectors pursued their legislative agendas during work hours, and that such conflicts would disrupt the Department’s operations and damage its integrity. The court concluded that the Department’s interest in preventing disruption outweighed its employees’ interest in doubling as elected county legislators. (R14.) As for petitioners’ objections to the Cuddeback affidavit, 10 Supreme Court stated that although the affidavit contained some hearsay, the Department’s concerns about conflicts remained valid even without those allegations. (RIO, 14.) With respect to the claims under article 78 seeking annulment of the i Department’s actions, Supreme Court determined that the Department rationally based its actions on the significant risk that permitting inspectors to serve as elected officials would create the appearance of impropriety. (R15.) Because the appearance of impropriety justified the determination without proof of an actual conflict, the court remarked that the Cuddeback affidavit was “of no consequence” to its resolution of the article 78 matter. (R15.) ARGUMENT POINT I THE DEPARTMENT’S REVISED OUTSIDE-ACTIVITIES POLICY IS CONSTITUTIONAL As citizens, Kulzer, Brown, and the rest of the Department’s inspection employees have a right to engage in political speech. U.S. CONST, amend. I; N.Y. CONST, art. I, § 8. Nevertheless, the Department does not violate that right by forbidding them from campaigning for or holding elected office as a condition of continued employment. When evaluating a political-speech challenge to a government employer’s action, the federal and New York constitutions require the same analytical approach. See Golden v. Clark, 11 76 N.Y.2d 618, 623 n.2 (1990). The parties agree (see Br. at 30) that this approach is the balancing test set forth in Pickering v. Board of Education, 391 U.S. 563 (1968). The Pickering test reflects the principle that individuals do not absolutely relinquish their free-speech rights by becoming government employees, but the government may nonetheless regulate the speech of its employees more restrictively than it regulates the speech of the citizenry in general. Id. at 568. Under Pickering, “courts must weigh the employee’s speech interests against the government’s interest in effective and efficient fulfillment of its responsibilities to the public, including promoting efficiency and integrity in the discharge of official duties, and maintaining] proper discipline in public service.” Lynch v. Ackley, 811 F.3d 569, 577 (2d Cir. 2016) (quotation omitted). In applying this balancing test to a statute prohibiting county election officials from simultaneously campaigning for elected office, the Second Circuit has clarified that the balance favors the employer if: (1) its prediction of the disruption the speech will cause is reasonable; (2) the potential for disruption outweighs the value of the speech; and (3) the employer took adverse action in response to the potential for disruption. Castine v. Zurlo, 756 F.3d 171, 175 (2d Cir. 2014); (citing Anemone v. Metro. Transp. Auth., 629 F.3d 97, 115 (2d Cir. 2011) (applying Pickering test to an act of alleged retaliation, rather than a statute or regulation)). 12 At the outset, the balance leans toward the Department because the effect its actions have on inspectors’ free-speech rights is “de minimis.” Golden, 76 N.Y.2d at 630. Undoubtedly, campaigning for and holding elected office is a form of speech. Castine, 756 F.3d at 176. But the Department did not actually prohibit these activities. It simply gave certain employees a choice between holding elected office or continuing to serve in their Department jobs. Kulzer, Brown, and their peers remain “free to run and the people are free to choose [them].” Signorelli v. Evans, 637 F.2d 853, 858 (2d Cir. 1980). Yet, while they have “a right to talk politics,” they have “no constitutional right to be [dairy products specialists].” Matter ofPurdy v. Kreisberg, 47 N.Y.2d 354, 361 (1979); see Merle v. United States, 351 F.3d 92, 97 (3d Cir. 2003) (it is not unconstitutional to give federal employees a choice between remaining an employee and running for office). Even if the Department’s actions could be construed to directly restrain inspectors’ speech, however, their right hold office is not fundamental. Golden, 76 N.Y.2d at 624; see also Molina-Crespo v. U.S. Merit Sys. Prot. Bd., 547 F.3d 651, 656 (6th Cir. 2008) (“there is no protected right to candidacy under the First Amendment, and a public employee may be terminated because of the fact of that employee’s candidacy”). Compared to this minimal employee interest, the Department’s interest! in preventing disruption and protecting its integrity is substantial. First, the Department reasonably believed that allowing inspectors to simultaneously 13 serve as elected officials would cause disruption by casting doubt on the fairness of their inspections. Castine, 756 F.3d at 176-77 (allowing a candidate for office to serve as an election commissioner would cast doubt on the fairness . of the election). Inspectors regularly interact with the private companies over whom they exercise significant power. For instance, they make recommendations as to licensing and determine whether milk processing plants are sanitary. (R140.) Consequently, allowing them to hold office could cause these companies to feel pressure to support campaigns or other personal initiatives to ensure favorable outcomes. Evidently, at least one plant manager felt such pressure shortly after Kulzer was elected a county legislator. (R249- 50.) Fletcher v. Marino, 882 F.2d 605, 613 (2d Cir. 1989) (upholding law preventing community school board members from holding other elected office in response to actual cases of misconduct). Unlike in Pickering, where the employee speech did not adversely impact the performance of the employee’s official duties or the employer’s operations, 391 U.S. at 570-73, the conflict of interest that arises from inspectors holding public office could compromise both. What had been effective working relationships could become mired in distrust, as inspectors and companies come to suspect each other’s motives. Recusal would only add to the disruption. Because of the magnitude of recusal required of inspectors— abstaining from inspecting any company that could feel political pressure (R226)— the 14 Department would need to reassign other inspectors to fill the void, and reshape the duties of inspectors who become elected officials. On the second factor, the potential for disruption at the Department outweighs its inspectors’ interests in running for office. Avoiding the appearance of a conflict is just as important as avoiding actual conflict and likewise, outweighs an individual employee’s interest in holding public office. Castine, 756 F.3d at 176-77; U.S. Civ. Serv. Comm’n v. Nat’l Assoc, of Letter Carriers, 413 U.S. 548, 565 (1973). The importance to the Department is easy to discern: the integrity of its inspections influences people’s confidence in the food and drink they put into their bodies. If the public suspects that inspection . results are based on anything other than the quality of the inspected products, the ensuing crisis of confidence would strike at the very heart of the Department’s mission. Thus, the Department’s revised outside-activities policy “reduc[es] the opportunities for corruption inherent in dual officeholding,” in order to increase “citizens’ confidence in the integrity and ■ effectiveness of their government.” Golden, 76 N.Y.2d at 626; Matter of Belle v. Town Bd. of Town of Onondaga,61A.D.2d 352, 358 (4th Dep’t 1978) (“It cannot be gainsaid that regulation and promulgation of ethical standards for public employees serves a legitimate public purpose”). At least one other New York state'agency has promulgated a similar rule, . and this survived constitutional scrutiny. Matter of Boyle v. Kirwin, 39 A.D.2d 15 993 (3d Dep’t 1972). Moreover, courts in several other states have held that governments may limit their employees’ ability to campaign for or hold elected! office, whether or not those employees are policymakers. See, e.g., Phillips v. City of Dallas, 781 F.3d._ 772,- 779-82 (5th Cir. 2015); Kane v. City of Albuquerque, 358 P.2d 249, 257-59 (N.M. 2015); Whitehouse v. Moran,808 A.2d 626, 631 (R.I. 2002); Painter v. Graley, 70 Ohio St.3d 377, 381 (1994); Snyder v. Unemployment Comp. Bd. of Review, 509 Pa. 438, 443-44 (1985). On the third and final factor, the Department’s actions reflect an even-handed approach that is narrowly tailored to avoid disruption. Broadrick v. Oklahoma, 413 U.S. 601, 616 (1973). The revision to the outside-activities policy is as “carefully drawn” as practicable, reaching only those employees who both directly interact with regulated companies and can use their discretion to those companies’ significant benefit or detriment. See Castine, 756 F.3d at 177. The Department “can hardly be faulted for attempting to limit the positions upon which restrictions are placed.” Broadrick, 413 U.S. at 607 n.5. Indeed, the Department’s restriction is far narrower than other restrictions that have survived constitutional scrutiny. E.g., Purdy, 47 N.Y.2d at 358-59 (termination of a police officer for opposing a candidate for town supervisor in his capacity as the police association president); McCormick v. Edwards, 646 F.2d 173, 178-79 (5th Cir. Unit A 1981) (upholding termination of a non-policymaking state employee for political activities that included 16 holding a fundraising party in his home and distributing flyers). The Department’s employees remain eligible to engage in other forms of political activity, including assisting in others’ campaigns. (R221.) See Fletcher, 882 F.2d at 613. I For this reason, petitioners miss the mark in arguing that the Department’s interest in avoiding potential conflicts could in theory be extended to reach “almost any outside activity” (Br. at 25). Whatever the Department might deem a conflict of interest in the future, it currently has a significant— and legally valid— interest in limiting a narrow group of its employees from engaging in activities it reasonably expects will erode public trust in one of its core functions. See Broadrick, 413 U.S. at 610 (refusing to entertain a challenge that a state law prohibited political activity that the plaintiffs did not undertake). Similarly missing the mark is petitioners’ suggestion that the revised policy improperly extends beyond partisan elected office. (Br. at 34-35.) To the extent they challenge the revised policy as a facial matter, their challenge is doomed by existence of numerous circumstances where the policy is constitutional, as discussed above. Matter of Moran Towing Corp. v. Urbach, 99 N.Y.2d 443, 448 (2003) (discussing a party’s burden to succeed on a facial challenge). To the extent they challenge the revised policy as applied to them, their challenge is doomed by their failure to identify any inspectors that 17 actually would like to hold nonpartisan elected office. In any event, inspectors’ interest in holding nonpartisan elected office carries no more weight than their interest in holding partisan office, as this Court recognized when it upheld a State Police order that a uniformed member resign a seat on a local school board pursuant to a similar elected-office prohibition. Boyle, 39 A.D.2d at 993.2 Contrary to petitioner’s assertion, United States v. National Treasury Employees Association, 513 U.S. 454 (1995), is not a suitable comparator. There the United States Supreme Court struck down a ban on federal employees receiving compensation for speeches or written articles, but it did not restrict the government from taking any prophylactic ethical measures. See id. at 465, 473-74. Rather, the more apt comparison is the Hatch Act, 5 U.S.C. §§ 1502, 7323, which forbids all but a handful of federal employees and covered state employees from campaigning for or holding elected office.3 The Hatch Act ban has repeatedly survived First Amendment scrutiny. See, e.g., Molina- Crespo, 547 F.3d at 658; McEntee v. U.S. Merit Sys. Prot. Bd., 404 F.3d 1320, Not all “nonpartisan” elections actually meet that description. See McEntee v. U.S. Merit Sys. Prot. Bd., 404 F.3d 1320, 1324 (Fed. Cir. 2005) (employee violated Hatch act by allowing partisan politics to enter a campaign for an ostensibly nonpartisan office). 3 The Hatch Act used to apply to a much larger range of state and local employees, but has since been revised to cover only those employees whose salaries come entirely from federal funds. Hatch Act Modernization Act of 2012, Pub. L. 112-230, § 2. 2 18 1332-33 (Fed. Cir. 2005); Briggs v. U.S. Merit Sys. Prot. Bd., 331 F.3d 1307, 1315-16 (D.C. Cir. 2003); see also Matter of Blackburne, 87 N.Y.2d 660, 662-63, 667 (1996) (Hatch Act termination of alcohol program specialist for running for city council was not subject to arbitration). The Department’s prohibition— which applies to a narrower group of government employees— should survive constitutional scrutiny as well. Attempting to defeat summary judgment, petitioners attack the Cuddeback affidavit, arguing that it contains inadmissible hearsay and, if admissible, raises a triable question of fact (Br. at 16-20). These objections are misplaced, for two reasons. First, contrary to petitioners’ assertion, the plant manager’s complaint was not the “sole basis” on which the Department relied. Rather, the Department grounded its actions in the appearance of conflict. To demonstrate the disruption that the appearance of conflict could cause, the Department did not need to identify a “real” conflict with particularity (Br. at 32-33): “no evidence on the record is needed to prove that truism.” Simard v. Bd. of Educ. of Town of Groton, 473 F.2d 988, 996 (2d Cir. 1973) (deeming it obvious that insubordinate remarks to a superior were disruptive under Pickering). Second, Supreme Court made clear that Cuddeback’s affidavit was unnecessary to support its conclusion that the Department’s concerns about conflicts of interest were well-founded. (R14.) Indeed, even if Kulzer is correct 19 that the plant manager was confused about their encounter (R249-50), the very fact of the confusion illustrated the disruption the Department could expect if it permitted Kulzer and other inspectors to simultaneously hold elected office. 1 So with or without the affidavit, that conclusion should not be disturbed. For these reasons, the Department’s outside-activities policy is constitutional. Rather than dismissing the complaint, however, Supreme Court should have issued a declaration in the Department’s favor. Sweeney v. I SI I 1 Cannon, 32 N.Y.2d 633, 634 (1972). The judgment should be modified accordingly, by declaring that the Department’s outside-activities policy is notI unconstitutional. POINT II THE DEPARTMENT RATIONALLY DISAPPROVED KULZER AND BROWN’S OUTSIDE-ACTIVITY REQUESTS The Commissioner’s disapproval of Kulzer and Brown’s outside-activity requests was not arbitrary and capricious. As an initial matter, insofar as petitioners challenge the initiation of disciplinary proceedings against Kulzer (Br. at 23), their claim fails because it is not “final agency action.” Matter of Rushin v. Comm’r of Dep’t of Corr. Servs., 235 A.D.2d 891, 891-92 (3d Dep’t 1997) (declining to review action that may not have a material effect on the petitioner). As for petitioners’ challenge to the denials of the outside-activity requests themselves, the claim fails on the merits. Petitioners do not suggest i 20 that the Department violated any law aside from their free-speech rights. Because the Commissioner’s determinations did not violate those rights as discussed in Point I supra, petitioners cannot show that they were made “contrary to law.” CiP.L.R. § 7803(3). Nor can they show that the determinations lacked a “sound basis in reason” or were “taken without regard to the facts.” Matter of Pell v. Bd. of Educ., 34 N.Y.2d 222, 231 (1974). In performing article 78 review, courts should not substitute their judgment for that of the agency if the agency’s conclusion is supported by the record. Matter of Kittle v. D’Amico, 141 A.D.3d 991, 993 (3d Dep’t 2016), Iv. denied, 28 N.Y.2d 917 (2017). To the contrary, courts will defer to the agency on matters “involve[ing] a factual evaluation in the area of the agency’s expertise.” Matter of Warder v. Bd. of Regents, 53 N.Y.2d 186, 194 (1981). An agency’s rejection of an outside-activity request is one such matter that receives deference. Matter of Mallick v. Div. of Homeland Sec. & Emergency Servs., 145 A.D.3d 1172, 1174 (3d Dep’t 2016). This Court should decline to disturb the Commissioner’s determinations because the record demonstrates a rational basis for them. Matter of Brenner v. Dep’t of Health, 43 A.D.3d 595, 596 (3d Dep’t 2007). The Department rationally determined that a conflict of interest could arise if Kulzer and Brown continued their inspection duties while serving as county legislators. Private dairy companies that Kulzer and Brown inspected could “foresee preferential 21 treatment” in political action. See N.Y. Ethics Op. 92-16 at 5 (concluding that a state employee whose duties included surveying properties for State rental could not run for city council). It does not matter that their respective counties do not have agricultural units, or that Department inspectors do not apply county law. (R213; see Br. at 27.) In fact, a conflict need not even relate to agriculture. If an inspected company sponsors a county fair (R211), or locates a new facility within a county (R217), this is just as likely to create an impression of improper influence. Pub. Off. Law § 74(3)(f). The impression becomes only more pronounced when employees entangle their official and legislative duties, as Kulzer did when he assumed leadership of the County The potential for suchLegislature’s Agriculture Committee. (R213.) impressions justified the Commissioner’s determinations even without evidence that Kulzer or Brown actually engaged in self-dealing. See Mallick, 145 A.D.3d at 1174 (affirming denial of outside-activity request to inspect schools that the employer agency could also inspect, even though agency had not yet been asked to perform those inspections). Recusal would not cure the appearance of conflict, for two reasons. First, the inspectors would need to recuse in so many situations as to render the two positions incompatible. See Op. Atty. Gen. (Inf.) 2003-3 at 10 (noting that when the joint holding of offices would require frequent recusals, an individual should not hold the offices jointly). As employees, Kulzer and Brown would 22 need to relinquish any duties that required direct interaction with the dairy industry— the bulk of their official duties. As legislators, they would need to recuse from matters that could affect Department-regulated parties within their jurisdiction— numerous matters. Ethics Op. 92-16 at 6. In other words, by holding both jobs, Kulzer and Brown would find themselves unable to perform either effectively. See Matter of Dupras u. Cty. of Clinton, 213 A.D.2d 952, 953 (3d Dep’t 1995) (holding that two offices were incompatible as a matter of law). Second, the limited recusals that Kulzer and Brown proposed (R213, 222) would leave them as the as the arbiters of when recusal was appropriate. The Commissioner acted rationally in declining to allow Kulzer and Brown to police themselves. Beyond the potential for conflicts of interest, the Commissioner rationally found that service as an elected official could also adversely affect Kulzer and Brown’s management of their work hours. The amount of time that . Kulzer proposed to devote to legislative duties grew between his first and renewed outside-activity requests. (R142, 210.) Although Kulzer received a satisfactory rating in his first year as a legislator (R83-85), the Commissioner had justifiable concerns that, in the future, Kulzer and Brown could find themselves pressed to discuss county business while on the job. Even rebuffing such invitations could be a distraction. Thus, “it is the possibility of wrongdoing 23 and the principle involved which bars [them] from holding these incompatible offices.” Matter ofDykeman v. Symonds, 54A.D.2d 159, 162-63 (4th Dep’t 1976) (affirming order that county legislator resign from her role as supervisor of motor vehicles within that county). Petitioners are incorrect that the Department’s determinations resulted from an “erroneous failure to adhere to prior precedent” (Br. at 27-28). An agency may depart from prior precedent so long as it explains “its reason for reaching a different result on essentially the same facts.” Matter of Kopyt v. Governor’s Office of Emp. Relations, 55 A.D.3d 1179, 1182 (3d Dep’t 2008) (emphasis added). The Commissioner’s determinations satisfied this rule. • They explained why an unacceptable potential for conflict arises if Kulzer and Brown continued to perform their inspection duties while holding elected office. This was sufficient to address the prior approval of Kulzer’s request. See Ass’n of Secretaries to Justices of Supreme & Surrogates Cts. in City ofN.Y. v. Office of Ct. Admin., 75 N.Y.2d 460, 471-72 (1990) (holding that Board’s reasoning was sufficient to address a prior conflicting decision). That the Department let Kulzer campaign for county legislator a year earlier did not compel it to let him continue to hold office, let alone grant all similar requests in perpetuity. See Fletcher, 882 F.2d at 614 (rejecting as “absurd” the argument that employees must be allowed to hold office because they were previously allowed to run for office). 24 Once again, petitioners bring up the Cuddeback affidavit, now to accuse it of raising matters “outside the administrative record.” (Br. at 22-23). And once again, their effort fails because Supreme Court did not consider the affidavit in resolving the article 78 claims. (R15.) The Commissioner’s detailed, four-page final determinations speak for themselves and require no supplementation to survive rational basis scrutiny. The Cuddeback affidavit was properly submitted for a different purpose, namely, to explain the agency’s reasons for revising its policy to prohibit inspectors in the future from holding public office. (R138.) In this respect, the record amply supports the Department’s revised outside-activities policy. Cuddeback, served as the Department’s Deputy Ethics Officer, and explained that the Department’s experience with Kulzer’s request led it to believe that the potential for conflict among similar employees was too “significant” to approve future requests by them to hold elected office. (R138.) Cuddeback averred that he was familiar with the matter at issue, i.e., the revised policy, and so was qualified to discuss it. Cf. Matter of Menon v. Dep’t of Health, 140 A.D.3d 1428, 1431 (3d Dep’t 2016) (concluding that an official who had a matter “removed from his hands” could not sufficiently discuss the agency’s reasoning in an affidavit). To impose this change, contrary to petitioners’ assertions (Br. at 29), the Department was not required to produce evidence that employees were engaging in wrongful behavior; its well- 25 founded concern that wrongful behavior might occur was sufficient. See Matter of Lecci v. Looney, 33 A.D.2d 916, 916 (2d Dep’t 1970) (dismissing article 78 challenge to employer rule prohibiting police officers from engaging in politics). Petitioners muddle the issue by alleging that the Commissioner’s ownership in a private farm raised similar conflicts of interest (Br. at 26-27). Even if this matter were relevant, which it is not, the Commissioner has not sought to hold elected office while serving as the head of the Department. More to the point, the Department addressed the situation at hand, determining that inspectors and public office were incompatible given the crippling recusals that would be required of those simultaneously holding the two positions. It has not made a similar determination for business ownership. The Department is uniquely aware of “both the nature of duties of [its] employees and the problems inherent in the function of the agency.” Matter of Nicholas v. Kahn, 47 N.Y.2d 24, 30 (1979). This Court should defer to the Department’s judgment, and affirm. 26 CONCLUSIONJ This Court should modify Supreme Court’s judgment by declaring that the Department’s revised outside-activities policy has not been shown to be unconstitutional; as so modified, affirm the judgment, with costs. II Dated: May 19, 2017 Albany, New YorkI Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondentsi! By: JONATHAN D. HITSOUS \ Assistant Solicitor General Office of the Attorney General The Capitol Albany, New York 12224 (518) 776-2044 VICTOR PALADINO JONATHAN D. HITSOUS Assistant Solicitors General of Counsel 27 .