Office of General Counsel
Edward J. Aluck
General Counsel
Rita J. Strauss
Deputy General Counsel
flHT' ■ New York State“ IPUBLIC EMPLOYEES
FEDERATION, AFL-CIO
1168-70 Troy-Schenectady Road
P.O. Box 12414
Albany, New York 12212-2414
John R Kershko
Katherine J. Vorwald
Jessica C. Caggiano
John D. Svare
Nathaniel J. Nichols
Adam Alvarez
Linda N. Keller
Associate Counsel
(518) 785-1900 ext. 241 - (800) 342-4306 ext. 241
April 11,2018
VIA PERSONAL DELIVERY/FILING AND
COURTPASS FILING
Honorable John P. Asiello
Chief Clerk and Legal Counsel
New York Court of Appeals
20 Eagle Street
Albany, New York 12207
Matter of Spence v. NYS Department of Agriculture
APL-2017-00237
Our File No. 4915-LNY
Re:
Dear Mr. Asiello:
On behalf of the Appellants in the above case, please accept this letter containing our
arguments in connection with the alternative appeals procedure set forth in 22 NYCRR
§500.11(c)(2), consistent with your letter dated February 16, 2018.
For the reasons that follow, we respectfully request that the Court terminate the
alternative review procedure for this case, pursuant to Rule 500.1l(i), and permit Appellants to
proceed with full briefing and oral argument.
Alternatively, should the Court nonetheless proceed in determining this appeal pursuant
to Rule 500.11, the Court should use the appropriate legal standard (a modified Pickering v. Bd.
of Educ., 391 U.S. 563 (1968) analysis (hereinafter “Pickering”, as discussed infra)) which, as
applied to the prior restraint of speech at issue in this case, compels a reversal of the October 26,
2017 decision of the Appellate Division, Third Department. Accordingly, this Court should
order that Appellees’ policy outright prohibiting applicable public employees from campaigning
for or holding any and all elected office, regardless of kind or quality, violates the speech and
associational rights of these employees pursuant to the United States Constitution and the
Constitution of the State of New York.
As required by Rule 500.11(f), we also hereby incorporate by reference, reserve, and do
not abandon all arguments relative to the constitutional issues on appeal contained in our brief
and reply brief before the Appellate Division, Third Department, to the extent that they are not
reiterated here. We further request that, pursuant to Rule 500.11(e), this Court permit Appellants
a reply to Respondents’ filing.
2
Preliminary Statement and Procedural History
This is an appeal in a proceeding commenced June 3, 2015, 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, as well as other claims not appealed to this Court.
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 by Appellee New York State Department of
Agriculture & Markets. (Record on Appeal,1 21, 23-24.)
1.
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, Albany County Supreme Court Acting Justice
Judith A. Hard granted Appellee’s motion for summary judgment dismissing Appellants’ claims
and dismissed the Verified Petition. (R. 6-17.) Thus, Supreme 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.) This case was fully briefed before the
Appellate Division, Third Department, and oral argument was held on September 15, 2017.
By decision dated October 26, 2017, the Appellate Division, Third Department affirmed, as
modified, on the law by declaring Appellees’ outside activities policy constitutional. (Decision at
8.)
Appellants appealed to this Court, as of right, only those of their claims that challenge the
constitutionality of Appellees’ “Political Activities” policy - a prior restraint which outright and
completely prohibits impacted employees from running for or holding any elected office. (See R.
20-110.) The Appellants seek relief on the basis that the Appellees have violated their rights under
1 Hereinafter, citations to the Record on Appeal before the Appellate Division, Third Department will be
abbreviated to “R.” followed by the relevant page number(s).
3
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 or holding political office. (R. 22, 46-49, 53-55, 58-60.)
Statement of Facts Relevant To This Appeal2.
Gregory Kulzer and Ronald Brown were employed by Agriculture & Markets as Dairy
Products Specialist 1s at all times relevant to this claim, since their permanent appointments on
August 9, 1984 (R. 24), and January 13, 1983, respectively (R. 35). As Dairy Products Specialist
Is, their job duties included 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, 36.) When inspecting and rating any milk plant or farm, Mr. Kulzer
and Mr. Brown do not conduct inspections and ratings in accordance with any county or local
laws, statutes, rules, or regulations. (R. 25, 37.) Rather, they conduct 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 when inspecting and rating milk plants or farms that process Grade A milk products.
(R. 25, 36.) When Mr. Kulzer and Mr. Brown inspect plants or farms that are non-interstate
Milk Shippers, they conduct inspections and ratings in accordance with New York Code of Rules
and Regulations Title 1, Part 2. (R. 25, 36.) Mr. Kulzer and Mr. Brown are not policymakers
under the Joint Commission on Public Ethics (“JCOPE”) regulations. (R. 29, 32, 38, 135.)
On April 6, 2015, 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 Agriculture and Markets, including approximately 262 members with
the title of Dairy Products Specialist 1. (R. 41.) PEF also represents other members employed
by 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.)
This Appeal Should Proceed Via The Regular Course Appeal Method
Respectfully, in conjunction with Rule 500.11(c)(2) of this Court, we urge the Court to
terminate proceeding by the alternative appeal method and to permit Appellants to proceed
through the regular course appeal method, with full briefing and oral argument.
3.
2 The Appellate Division, Third Department erred at page 5 of its Decision in describing the number of
employees impacted by the challenged policy as 26 - that is only the number of Dairy Product Specialists Is, but the
policy, by its terms, impacts a myriad of other titles who also conduct inspections, as identified by Appellants above.
4
In this case, proceeding through the regular course appeal is preferable where Appellants
have: (1) Appealed as of right and raised important constitutional issues; (2) Only appealed their
challenge of Appellees’ prior restraint policy on constitutional grounds; and, (3) Where the
speech and associational rights issues raised by Appellants, as public employees, are an area of
law that is evolving as courts give greater weight to the constitutional rights of public employees.
With regard to the first two points, proceeding through the regular course appeal process
in this case would be particularly advantageous since Appellants have only appealed their
constitutional challenges to Appellees’ political activities policy and have not appealed a myriad
of other claims which the lower courts considered. Thus, the record and briefs before the
Appellate Division, Third Department reference many facts and legal arguments irrelevant to this
appeal. Appellants should be permitted to fully brief, focus, and present to this Court their
specific arguments for the remaining, limited issues without clouding the record with
information irrelevant to this appeal. Concomitantly, where Appellants’ have appealed as of
right only on the important constitutional issues related to Appellees’ prior restraint of employee
speech, these issues are deserving of a full, fresh review in a regular course appeal, as opposed to
simply a re-review of the now-stale record that was presented to the lower court.
With regal'd to Appellants’ third point, full briefing on the important constitutional issues
raised by Appellants would aid this Court in its review by ensuring that the nuances in the legal
standard at issue are fully addressed - nuances that the lower courts missed. Further, it would
enable this Court to better consider the speech and associational rights issues raised by
Appellants, as public employees- an area of law that is maturing as courts give greater weight to
the constitutional rights of public employees. Indeed, during the Warren era of the Supreme
Court of the United States, the Court began to move away from its original interpretation of the
First Amendment and prohibit the government from leveraging public employment on the
sacrifice of “liberties employees enjoy in their capacities as private citizens.” Garcetti v.
Ceballos, 547 U.S. 410, 419 (2006); see Connickv. Myers, 461 U.S. 138, 144 (1983) (discussing
cases).
This Court is likely aware of the changing nature of First Amendment jurisprudence in
the area of employee rights in light of the Supreme Court of the United States’s decision in Knox
v. SEIU, 567 U.S. 310 (2012) and its pending decision in Janus v. AFSCME. The First
Amendment rights of public employees have been expanding and State action restricting them is
subject to greater scrutiny now than in the past. Because of these developments, and the added
nuance of the prior restraint of speech involved in this case, full briefing of this case and oral
argument would better assist this Court in selecting and applying the correct standard -
something the lower courts, Appellants contend, did not do.
Appellees’ Prior Restraint of Employee Speech Is Unconstitutional.
Appellees’ prior restraint sweepingly prohibiting, regardless of kind or creed, impacted
public employees from running for or holding any elected office is unconstitutional under the
appropriate legal standard - a modified Pickering analysis. This policy violates the speech and
4.
5
associational rights of these State employees, violating their First Amendment rights of the
United States Constitution, as well as their Article 1, Section 8 rights pursuant to the Constitution
of the State of New York.
The challenged policy restrains protected political speech in the first instance by
prohibiting an entire class of employees at Appellee Agriculture & Markets from campaigning
for or holding elective office. (See R. 43-44, 110.) Namely, “[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)” including approximately 26 Dairy Products
Specialist Is, as well as a host of other titles represented by Appellant PEF who are required to
inspect such entities as a part of their duties. (R. 41-44.)
Significantly, while the lower courts focused on the purported concerns Appellees alleged
in issuing its prior restraint after it had two Dairy Product Specialist Is who held or wished to
hold the office of County Legislator, the courts ignored the unaddressed scope of the prohibition
in terms of its restraint on speech in a plethora of potential elected positions. Under this policy,
impacted employees are proscribed from running for or holding any elected office which would
include, for example, a school board position, regardless of the context or other facts and
circumstances surrounding the holding of such office for a particular employee. The at-issue
broad and total ban on such speech was promulgated by Appellees and revised a prior policy that
involved individualized review of requests to engage in outside activities- including the political
activity now subject to this ban. (See id., see R. 26-27, 72-74, 37-38, 98-101.)
Moreover, the only purported support in the record for Appellees’ revision of the policy
and transformation from a case-by-case determination into an outright ban was, as alleged by
Chris Cuddeback, an attorney at Appellee Department of Agriculture and Markets, “to prevent a
recurrence of the Kulzer incident or similar incidents.” (See R. at 138-39, R. 209.)
This is a reference to an unproven allegation involving Mr. Kulzer, who held the position of
county legislator during the relevant time period- an allegation Mr. Kulzer clearly disputed and
for which Appellee Department took no disciplinary action against him. (See R.132-39, 247-55.)
Thus, Appellees’ justification for this prior restraint of speech boils down to a contention that
because public employees are capable of violating the Public Officers Law and/or workplace
rules (since Appellees never established that Mr. Kulzer himself did so), Appellee Department
somehow has the right to prohibit all of this indisputably-protected speech in the first instance.
The courts below viewed Appellees’ purported justification for this policy under the lens
of inappropriately-submitted hearsay statements in the Affidavit of Chris Cuddeback. Without
this prejudicial and unsupported factual contention clouding the record, Appellees are left
arguing that their prior restraint is justified because employees might potentially break the law or
workplace rule(s) - a risk that has always existed and will continue to exist, and one that is
wholly insufficient to support such a broad ban of protected speech under the appropriate legal
standard - a modified Pickering analysis-as discussed infra.
6
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.”’ Delano v. City of Buffalo,
45 F. Supp.3d 297, 304 (W.D.N.Y. 2014) 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 “[a]fter all, public employees do not renounce their citizenship when they
accept employment.” Manon v. Pons, 131 F. Supp.3d 219, 229 (S.D.N.Y. 2015) quoting Lane,
supra, (other citations omitted). The First Amendment3 indisputably protects the act of running
for elective, public office as a form of speech. Castine v. Zurlo, 756 F.3d 171, 176 (2nd Cir.
2014).
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 v. Bd. ofEduc., 336 F.3d 185, 192
(2d Cir. 2003); 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 (2d Cir. 2011) (citations omitted). Indeed, it is a matter of
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 government’s adverse
action is not in retaliation for the speech, but because of the potential for disruption. Castine,
756 F.3d at 175; see also, Anemone v. Metro Transp. Auth, 629 F.3d 97, 119 (2d Cir. 2011); 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”).
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 test, modified to account
Although courts have interpreted the Constitution of the State of New York to provide greater protections for
speech than the First Amendment, courts apply the same analysis to claims that the government violated Article 1,
Section 8 of the New York State Constitution. Indeed, most courts simply conduct the First Amendment analysis
and dispense with all free speech claims accordingly. See Rotundo v. Village ofYorkville, 6:09-CV-1262, 201 1 U.S.
Dist. LEXIS 21663, at *13 (N.D.N.Y. Mar. 4, 2011).
7
for the prior restraint nature of the prohibition, was nonetheless appropriate for a situation in
which the government precludes a broad category of speech for a large number of potential
speakers upfront. See 513 U.S. at 467.
Appellees’ policy does not survive scrutiny under Pickering, let alone under the
considerably more burdensome modified Pickering standard, which the lower courts failed to
apply and which is applicable to prior restraints of speech in such cases. (See R. 7-17; Third
Department decision at 4.)
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.
ofEduc., 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
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.
Despite its application of Pickering, the Court in National Treasury Employees Union
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
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.
8
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, All 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”).
Courts have referred to this test as a “modified Pickering or “ PickeringlNTEU' analysis
when evaluating prior restraints of speech, as compared to the typical Pickering, analysis applied
in cases where the employer takes action against the employee for the speech after it has
occurred. See, infra.
Consistent with this, the Second Circuit Court of Appeals also assigns a heavier burden to
the government in such cases. In Harman v. City of New’ York, 140 F.3d 111, 114-15 (2d Cir.
1998), the Second Circuit affirmed a lower Court’s finding that press policies issued by certain
city agencies forbidding employees from speaking with the media regarding any policies or
activities of the agency without obtaining permission, violated the employees’ First Amendment
rights. The Court held:
[The Government’s] Burden is particularly heavy where, as here,
the issue is not an isolated disciplinary action taken in response to
one employee’s speech, but is, instead, a blanket policy designed
to restrict expression by a large number of potential speakers.
Id. at 118; see also, Marinoffv. City College of N.Y., 357 F. Supp.2d 672, 683, 687 (S.D.N.Y.
2005) (citing NTEU and Harman and holding that the government’s burden is greater where it
restricts speech in the form of a generally-applicable statute or regulation for multiple speakers,
but ultimately applying Pickering standard, and not heavier burden, where the at-issue restriction
applied only to one employee); Sanjour v. EPA, 56 F.3d 85, 91-92, 98-99 (Ct. of Appeals, Dist.
Co. 1995) (holding that in cases where the challenged regulations impacted a broad category of
speech by a large number of potential employee speakers, as compared with the analysis
articulated by Pickering and its progeny, involving discipline against one employee, the
“modified Pickering!NTEU standard” governs and the government’s burden is greater).
As the Second Circuit articulated:
Although the government predictions of harm are entitled to
greater deference when used to justify restrictions on employee
speech as opposed to speech by the public, such deference is
generally accorded only when the government takes action in
9
response to speech which has already taken place. Where the
predictions of harm are proscriptive, the government cannot rely
on assertions, but must show a basis in fact for its concerns.
Harman at 121-22 (internal citations omitted); see Marinoff at 683 (noting that where
the government bears the heavier burden articulated in NTEU and Harman, its claimed harms
must be “real” and not merely “conjectural.”); Price v. Saugerties Cent. Sch. Dist., No. 1:05-CV-
0465, 2006 U.S. Dist. LEXIS 8329, at *7-8, 13-14 (N.D.N.Y. Feb. 9, 2006) (noting, in the
context of evaluating preliminary injunction’s appropriateness, that ex ante, prior restraint policy
required by the government is to demonstrate real not conjectural harms; finding for plaintiff
where school’s reasons for policy were conjectural). Further, in prior restraint cases, the court
must weigh, in the employees’ favor, the impact on present and future employees as well as the
impact on their potential audience. Sanjour at 94 (citing valuable insights of public employees).
Given the heavy burden borne by Appellees, it is not surprising that they have failed to
justify their ban on the political speech rights of a considerable group of employees.
Not only is Appellees’ purported justification of its policy insufficient, but further
weighing against Appellees’ policy is the fact that it was not enacted by legislative direction and
was, instead, a unilateral act of the executive branch agency. Neither Supreme Court, nor
Appellees, have been able to cite to a case where such a broad prior restraint of speech enacted
by an administrative agency, absent the mandate of legislation, statute, or other regulation, has
withstood constitutional scrutiny. See Harman at 115, 122 n.5 (involving policy implemented by
executive order, not law or regulation; according less deference to executive order issued by the
government as compared to a case involving legislation restricting speech - such as the Hatch
Act) (emphasis added
Accordingly, in Harman, the Second Circuit accorded less deference to the government
in its application of Pickering!NTEU where the government was acting pursuant to executive
order, and not pursuant to legislation restricting speech, such as the Hatch Act. The Second
Circuit further distinguished the lawfulness of the Hatch Act by noting that the protection of
employee speech was one of the government’s stated purposes in enacting it - protecting
government civil servants from the impact of partisan politics. See id. at 122, n.5, 123.
Ultimately, the Second Circuit determined that the city’s policies restricting employees from
communicating with the media on certain issues without approval was overbroad and
unconstitutional. Id. at 123.
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. See
Nat’l 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.”).
Appellees have failed to offer any adequate explanation for their widespread ban and
10
prior restriction on speech and association where they have prohibited anyone who inspects
regulated entities from campaigning for or holding elected office based solely on the potential
risk - no matter how unlikely in a particular instance - that an employee could, conceivably,
violate the Public Officers Law or a work rule. 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. Appellees’ have essentially offered a “justification...of administrative
convenience,” which, under Supreme Court precedent, is unacceptable. Nat’l Treas. Empl.
Union, 513 U.S. at 474.
In Harman, the government cited to the existence of laws preventing the disclosure of
confidential records regarding children and their families in support of its speech restriction
policy described supra. Id. at 115, 116. The government claimed its policy was necessary to
prevent unlawful disclosures of confidential information, as well as its interest in efficiently
coordinating its media policy. Id. at 116. Similarly, Appellees argue that their interest in
avoiding the appearance of conflicts of interest and/or conflicts of interest as articulated in the
Public Officers Law and related regulations prohibiting conflicts of interest support its claim that
it should be able to prohibit all such activity to prevent such conflicts from occurring. (See
Appellees’ Br. 4, 22-23.) In Harman, in evaluating and balancing the interests of the parties, the
Second Circuit noted that it should only evaluate the interest of employees and the public with
respect to their speech on non-confidential agency policies and activities- that is, with respect to
speech not otherwise prohibited by law. See id. at 119 (emphasis added). Thus, the speech
restricted by Appellees here should only be evaluated to the extent it is not already prohibited by
the POL.
Similarly, in Sanjour, the government claimed its interests in the at-issue, challenged
regulations prohibiting employees from receiving compensation from outside sources for
teaching, speaking or writing on topics related to their official duties were guarding against the
appearance of impropriety, threat to integrity of the office, and using their positions for private
gain. Id. at 94. That court nevertheless held that regulation was unconstitutional, where it was
underinclusive since other similar concerns went un-regulated, much like Appellee Ball’s
business activities not prohibited here. Id. at 94, 95 (where government had not even attempted
to regulate a “broad category of behavior....giving rise to precisely the harm that supposedly
motivated it to adopt the regulations, we have trouble taking the government’s avowed interest to
heart.”) The Court also held it was unconstitutional where it was over inclusive, in that the
breadth of the speech impacted weighed heavily on the side of the employee. Id. at 98.
Especially where the government has a heftier burden, as required by Pickering!NTEU, that court
found that it must present evidence of “genuinely experienced harms” and that it failed to do so.
Id. at 98.
Further weighing on the employees’ side of the analysis is the fact that government
employees are “often in the best position to know what ails the agencies for which they work;
public debate may gain much from their informed opinions.” Harman at 119 citing Waters v.
Churchill, 511 U.S. 661, 674 (1994) (other citations omitted). A ban, just like the one at issue in
11
this appeal, not only imposes a burden upon the employees, but it also burdens the public’s right
to choose suitable candidates for office. NTEU at 470; see also, Mains v. City of Rochester, No.
03-CV-6363T(F), 2004 U.S. Dist. LEXIS 14826, at *11 (W.D.N.Y. 2004). 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.
For all of these reasons, as well as those articulated more fully in Appellants’ briefs
before the lower court, Appellees’ policy ban is an unconstitutional, unlawful restriction of
speech, and the court below erred in affirming, as modified, the judgment of Albany County,
Supreme Court dismissing Appellants’ petition and finding summary judgment was appropriate
in Appellees’ favor.
Pursuant to Rule 500.1l(m), I hereby certify the word count of this document is 5,251
words.
Very truly yours,
EDWARD J. ALUCK, ESQ.
Attorney for Appellants
rBy: Wsica C. CaggianoG)f Counsel
JCC/scm
Enclosures