J
“
-§CEXSTOÿ
STATE OF NEW YORK
OFFICE OF THE ATTORNEY
GENERAL
BARBARA D. UNDERWOOD
ATTORNEY GENERAL
DIVISION OF APPEALS & OPINIONS
ALBANY BUREAU
June 1, 2018
Hon. John P. Asiello
Clerk of the Court
State of New York, Court of Appeals
20 Eagle Street
Albany, New York 12207-1095
Re: Matter of Spence v. New York State Dept of Agriculture
APL-2017-00237
Dear Mr. Asiello:
This office represents respondents New York Department of
Agriculture (“the Department”) and Richard Ball, the Commissioner of
Agriculture and Markets. Please accept this letter as respondents’
submission under Rule 500.11.
Petitioners Gregory Kulzer, Ronald Brown, the Public Employees
Federation, and Wayne Spence commenced this hybrid declaratory action
and C.P.L.R. article 78 proceeding to challenge the Department’s revision
to its outside activities policy to prohibit employees who inspect regulated
entities from campaigning for and holding elected office. Petitioners
claimed that the revision abridged their First Amendment right to
political speech. In the order appealed from, the Appellate Division, Third
Department declared that petitioners had failed to show the policy
revision to be unconstitutional. Petitioners took an appeal to this Court
as of right on the ground that the appeal raised a substantial
THE CAPITOL, ALBANY, NEW YORK 12224-0341 • PHONE (518) 776-2050 •FAX (518) 915-7724 ‘NOT FOR SERVICE OF PAPERS
WWW.AG.NY.GOV
constitutional question, and this Court accepted jurisdiction over their
appeal.
This Court should affirm. As demonstrated in our brief to the
Appellate Division and as explained below, the Department’s prohibition
on its inspectors campaigning for and holding elected office is
constitutional. Contrary to petitioners’ assertion, the Appellate Division
correctly applied the balancing test in Pickering v. Board of Education,
391 U.S. 563 (1968), to their First Amendment challenge. Under that
analysis, the Third Department correctly determined that the
Department’s significant interest in protecting its operations against
conflicts of interest and the appearance of impropriety outweighed
inspectors’ interest in dual office-holding, that is, campaigning for and
holding elected office while simultaneously working as inspectors for the
Department. Petitioners do not cite a single decision in which a court
struck down a prohibition on dual office-holding, and present no
persuasive reason why this case differs materially from the myriad cases
where courts have upheld prohibitions on public employee dual office¬
holding.
Given the overwhelming weight of authority adverse to petitioners’
position, this case should be resolved on these letters and the briefs
submitted below, under Rule 500.11 of this Court’s rules. Respondents
also oppose petitioners’ request to submit a reply. (SSM Br. at 1.) Any
arguments petitioners had in support of reversal should have been
included in their original filing. See 22 N.Y.C.R.R. § 500.11(c)(2)
(appellant must file letter “stating its arguments in support” of appeal).
FACTS AND PROCEDURAL HISTORY
A. The Department’s Revised Outside-Activities Policy
The Department is responsible for regulating the dairy industry.
Ag. & Mkts. Law §§ 46, 46-A. The Commissioner of Agriculture and
Markets heads the Department, and creates rules defining the duties of
its various employees. Id. §§ 1, 6.
2
Like many administrative agencies, the Department has
promulgated internal rules regulating employee outside activities. The
rules lend detail to the Public Officers Law’s broad proscription against
employees’ activities that would conflict with their official duties or
create the appearance of conflict. See Pub. Off. Law §§ 74(2) (an employee
must refrain from activities that are “in substantial conflict with the
proper discharge of his or her duties in the public interest”); 74(3) (an
employee “should endeavor to pursue a course of conduct which will not
raise suspicion among the public that he or she is likely to be engaged in
acts that are in violation of his or her trust”); see also id. § 73(8)(d)
(permitting individual agencies to impose more restrictive rules for their
employees as they see fit).
The Department’s outside activities policy is primarily case-
specific. That is, the Department does not categorically prohibit
employees from engaging in a wide range of outside activities, like
holding a second job, serving on the board of a charity, or volunteering
for a political campaign. However, employees who wish to engage in such
activities must first obtain the Department’s approval. (R150.)1 If the
Department disapproves a request, it means that the employee can either
pursue the activity or continue in their current Department position, but
not both. (R150-51.)
As relevant here, the Department’s outside activities policy
addresses situations where employees wish to campaign for and hold
elected office. For most employees, the Department treats requests to
pursue elected office no differently than any other outside activity
request, in that it decides the request on its own facts. (R153.) But for a
subgroup of employees— inspectors— the policy categorically prohibits
dual office-holding: “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).” (R153.)
Citations to “(R_)” refer to the record on appeal before the Appellate
Division, and submitted with petitioners’ letter-brief.
l
3
The Department revised its policy to add this prohibition in April
2015. Under its earlier policy, it had approved petitioner Kulzer’s outside
activity request to run for the Lewis County Legislature. (R72-73.) After
Kulzer won election and took office, the Department received a report
that accused him of abusing his official position. Specifically, Kulzer was
alleged to have approached the manager of a milk processing plant
during an inspection to discuss locating a facility in a new complex being
built in Lewis County. (R134-35.) Kulzer admitted that he had
approached the manager to discuss the new facility but denied that he
did so while he was working. (R249-50.) This report led the Department
to conclude that the risk of a conflict of interest, actual or perceived, was
too great to continue allowing inspectors to pursue elected office. (R138.)
B. Denial of Petitioners’ Outside Activity Requests
Petitioners challenge only the Department’s revision to its outside
activities policy and have abandoned their challenge to the disapproval
of Kulzer and Brown’s individual requests, which predate the policy.
(SSM Br. at 2, 4.)2 Nevertheless, the Department’s experience with their
requests is helpful to understanding its justifications for the revision to
its outside activities policy.
Kulzer and Brown both held the same position at the Department,
dairy products specialist I. (R248, 257.) Colloquially, they were
inspectors, whose responsibilities included:
• Inspecting dairy companies’ facilities, equipment, records, and output
for quality control and compliance with New York and federal law;
2 After the Department disapproved Kulzer’s request, it began
disciplinary action against him based on his refusal to resign from his county
legislator position. (R96.) The parties agreed to stay the disciplinary
proceeding pending the outcome of this lawsuit. However, this lawsuit no
longer has any effect on Kulzer’s disciplinary proceeding because Kulzer and
Brown have abandoned their challenges to the denial of their individual
outside activity requests by not briefing them here. Consequently, the
Department reserves the right to resume the disciplinary proceeding, though
it has not done so to date.
4
• Conducting field investigations of dairy wholesalers and retailers for
compliance with packaging, labeling, storage, and pricing laws;
• Testing samples taken in the field to verify compliance; and
• Recommending whether to license facilities.
(R140.)
Kulzer and Brown both submitted outside activity requests seeking
to run (in Kulzer’s case, for a second time) for a seat on their county
legislatures. (R75, 220.) The Department disapproved the requests on the
ground that dual office-holding would create the appearance of a conflict
of interest. (R211, 221.)
Kulzer and Brown both appealed the disapprovals to the
Commissioner. They pledged to recuse themselves from matters that
would pose a conflict of interest, but, under their proposals, they would
determine for themselves what constituted a conflict. (R213-14, 222.)
The Commissioner affirmed the disapprovals. The Commissioner
observed that Kulzer’s and Brown’s duties as inspectors gave them
considerable discretion over private dairy companies, while their duties
as elected officials would require them to address constituent issues
involving those same companies. In light of this overlap, the
Commissioner found that dual office-holding created the appearance of a
conflict because the public could reasonably believe that Kulzer and
Brown were abusing their roles as inspectors to favor political
supporters. The Commissioner further found that regulated companies
could feel pressure to support their campaigns or political initiatives.
(R217, 226.) The Commissioner noted as an example that Kulzer’s
interest in economic development could unduly influence a dairy
manufacturer to locate a facility inside Lewis County. (R217.) Finally,
the Commissioner determined that recusal would not cure the
appearance of conflict because inspectors’ duties were fundamentally
incompatible with elected office. (R217-18, 226-27.)
5
C. Judicial Review
Petitioners commenced this hybrid action in Supreme Court for a
judgment declaring that the Department’s revision to its outside
activities policy violated the First Amendment. They alleged that by
categorically prohibiting them from seeking elected office, the
Department violated their right to engage in political speech. (R22, 58-
59.)
The Department moved for summary judgment, and Supreme
Court granted its motion. The court concluded that the Department’s
interest in preventing disruption and protecting its integrity outweighed
inspectors’ interest in dual office-holding.
A unanimous panel of the Appellate Division, Third Department
agreed. Matter of Spence v. New York State Dep’t of Ag. & Mkts.,
154A.D.3d 1234 (3d Dep’t 2017). The Appellate Division applied the
balancing test articulated in Pickering v Bd. of Educ. of Township High
School, Dist. 205, Will County, III., 391 U.S. 563 (1968), to determine
whether “the Department's interest in reducing potential unethical
behavior and preserving the professionalism and integrity of the
Department outweighed the interest of Kulzer and Brown to serve dual
roles as both government inspectors and candidates for elected office.”
Id. at 1235-36. The balance of interests, the Appellate Division held,
favored the Department because the appearance of conflict inherent in
situations where inspectors also held elected office could significantly
disrupt the Department’s operations by casting doubt on the propriety of
its inspections. Id. at 1237. The Appellate Division further held that the
Department’s revision to its outside activities policy was “an even-
handed, narrowly tailored approach” to address its concerns about
potential disruption because it restricted only a subset of employees from
engaging in one type of outside activity. Id. The Appellate Division
modified the judgment to declare that petitioners had not shown the
Department’s revision to its outside activities policy to be
unconstitutional, and otherwise affirmed. Id. at 1239.
Petitioners took an appeal to this Court as of right on the ground
that the appeal raised a substantial constitutional question. C.P.L.R.
6
§ 5601(b)(1). Following a jurisdictional inquiry, the Court permitted the
appeal to go forward and directed briefing under the alternative method
set forth in Rule 500.11.
ARGUMENT
THE DEPARTMENT’S PROHIBITION ON INSPECTORS
CAMPAIGNING FOR AND HOLDING ELECTED OFFICE DOES
NOT VIOLATE THE FIRST AMENDMENT
The Appellate Division correctly held, after applying the Pickering
balancing test, that the Department’s revision to its outside activities
policy accords with the First Amendment. Although petitioners argue
that the Appellate Division should have applied a “modified Pickering
analysis,” this argument is both unpreserved and meritless. Moreover,
the Appellate Division correctly concluded, consistently with the
overwhelming body of precedent addressing public employee dual office-
holding, that the Department reasonably believed allowing its inspectors
to campaign for and hold elected office would lead to actual and perceived
conflicts of interest, and that the Department’s significant interests in
avoiding these consequences outweighed the inspectors’ competing
interests.
A. The Pickering Balancing Test Applies to Petitioners’ Claims
At the outset, the Appellate Division rightly found petitioners’ First
Amendment claims3 subject to the Pickering balancing test. Petitioners
allege an infringement on the speech of the Department’s employees. The
Department, in its capacity as an employer, has “freer hand in regulating
the speech of its employees than it has in regulating the speech of the
public at large.” Waters v. Churchill, 511 U.S. 661, 671 (1994).
3 Although petitioners also rely on article I, section 8 of the New York
Constitution (SSM brief at 6 n.3), they do not dispute that in this context, the
analysis under the United States and New York Constitutions is the same. See
Golden v. Clark, 76 N.Y.2d 618, 623 n.2 (1990).
7
When confronted with restrictions on public employee speech,
courts “‘must balance between the interests of the [employee], as a
citizen, in commenting upon matters of public concern and the interest of
the [s]tate, as an employer, in promoting the efficiency of the public
services it performs through its employees.’” Matter of Spence v. New
York Dep’t of Ag. & Mkts., 154 A.D.3d 1234, 1236 (quoting Pickering, 391
U.S. at 568) (alterations in original). In applying the Pickering 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) the employer’s 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 not in retaliation for the employee’s speech, but because
of the potential for disruption. Castine v. Zurlo, 756 F.3d 171, 175 (2d Cir.
2014).
Petitioners suggest that the Appellate Division was wrong to apply
that balancing test, and that it should have instead applied a “modified
Pickering standard.” (SSM Br. at 1, 4-8.) However, they raised this
argument for the first time in their reply brief to the Appellate Division.
Indeed, on pages 29-39 of their opening brief to the Appellate Division,
they argued that the Pickering test applied, without any mention of a
modified test. As a consequence, they failed to preserve their argument
for a different standard, and this Court should decline to consider it. See
JF Capital Advisors, LLC v. Lightstone Group, LLC, 25 N.Y.3d 759, 767
(2015) (argument raised for the first time in the reply brief in the
Appellate Division was unpreserved and outside the scope of the Court’s
review).
Nevertheless, petitioners are mistaken that the Appellate Division
should have applied what they dub a “modified” Pickering test. Despite
petitioners’ characterization of the Department’s policy revision as a
“prior restraint” (SSM Br. at 8), the Pickering test applies to prospective
prohibitions on dual office-holding as much as it applies to employer
discipline in response to speech that has already occurred. See Briggs v.
U.S. Merit Sys. Prot. Bd., 331 F.3d 1307, 1313-16 (D.C. Cir. 2003)
(applying Pickering to the federal Hatch Act, 5 U.S.C. § 7323); Philips v.
City of Dallas, 781 F.3d 772, 776 (5th Cir. 2015) (applying Pickering to a
8
city ordinance restricting city employees from running for local elected
office). This Court should therefore apply the Pickering test, rather than
a “modified” test, to petitioners’ First Amendment challenge.
The case petitioners claim announced a modified Pickering test
(SSM Br. at 7-8), United States v. National Treasury Employees Union
(“ NTEU’), 513 U.S. 454 (1995), did no such thing. To the contrary, the
United States Supreme Court simply applied Pickering, but found that
the balance under the facts of that case favored the employees. Id. at 477.
And it did so based on facts markedly at odds with those here. The NTEU
Court addressed the validity of a prohibition on nearly the entire federal
workforce receiving “honoraria,” i.e., compensation for any speeches or
articles. Although, as petitioners note (SSM Br. at 7), the Court observed
that the honoraria ban covered speech that had yet to occur, it was more
concerned with the ban’s breadth as a “wholesale deterrent to a broad
category of expression by a massive number of potential speakers.” Id. at
466. The Court noted that the ban applied to “nearly 1.7 million federal
employees” and did not require that the subject matter of the employee
speech or the payor of the honoraria “bear[] any relationship at all to the
author’s duties.” Id. at 474. Given “[t]he widespread impact of the
honoraria ban,” the Court held that it “gives rise to far more serious
concerns than could any single supervisory decision.” Id. at 468. The
Court thus concluded that the employees’ interests outweighed the
government’s interest in maintaining a “crudely crafted burden on
[federal employees’] freedom to engage in expressive activities.” Id. at
477. The present policy prohibiting inspectors, a subset of the
Department’s workforce, from dual office-holding does not share these
concerns. In fact, the NTEU Court expressly distinguished the invalid
honoraria ban from political speech of the kind that the Department
regulated here. See NTEU, 513 U.S. at 471-72.
B. The Department’s Interest in Avoiding Disruption
Outweighs Inspectors’ Interest in Dual Office-Holding
The Appellate Division properly resolved the Pickering test in the
Department’s favor. Petitioners failed to demonstrate that their minimal
interest in dual office-holding outweighed the Department’s significant
9
interest in preventing conflicts of interest and the appearance of
impropriety.
1. Petitioners9 Interest in Dual Office-Holding is
Negligible
To begin, inspectors’ First Amendment interest in dual office¬
holding is, at best, minimal. It is important here to define exactly what
petitioners’ interest is. Petitioners are not barred from campaigning for
and holding elected office; they can run if they wish. What they actually
seek is to pursue elected office while simultaneously continuing in their
official Department roles. This Court has made it clear that, whatever
interest a citizen may have in runningfor office, a government employee’s
interest in dual office-holding is “de minimis.” See Golden v. Clark,
76 N,Y.2d 618 (1990) (upholding policy prohibiting certain elected
officials from serving dual roles in political parties); Matter of Purdy v.
Kreisberg, 47 N.Y.2d 354 (1979) (upholding a policy forbidding police
officers from engaging in any political activity on the basis that there was
“no constitutional right to be a policeman”).
Attempting to sidestep this settled law, petitioners define their
interest more broadly, as political speech. (SSM Br. at 6.) Their
characterization is incorrect, but even if the Court agrees with it,
petitioners’ rights as employees to participate in political activities are
not absolute. U.S. Civ. Serv. Comm’n v. Nat’l Assoc, of Letter Carriers,
413 U.S. 548, 565 (1973). In fact, some courts have held that government
employees have no First Amendment protected right to candidacy at all.
See, e.g., 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”); Newcomb v. Brennan, 558 F.2d 825,
828 (7th Cir. 1977) (a city employee’s “interest in seeking office, by itself,
is not entitled to constitutional protection”); Cook v. Popplewell,
394 S.W.3d 323, 325 (Ky. 2011) (there is no right to candidacy under the
First Amendment).
Although other courts, including the Second Circuit, have held that
the First Amendment does apply to candidacy for office, see Castine,
10
756 F.3d at 176; Phillips, 781 F.3d at 778-79, the recognition of some
First Amendment interest does not mean this interest carries significant
weight in the Pickering analysis. In Castine, the Second Circuit
recognized candidacy as “protected speech” only in the broadest sense—
that the government could not outlaw it without articulating some
justification. Castine, 756 F.3d at 176 n.5. It then expressed “no
hesitation” in holding that this First Amendment interest gave way to a
public employer’s interest in avoiding the appearance of impropriety. Id.
at 176-77. Whatever right inspectors may have to run for office as
citizens, as “[pjublic employees who desire to hold elected office [they]
face restrictions different from those faced by non-public employees by
virtue of the special trust and responsibilities of being a public employee.”
Loftus v. Bohzien, 848 F.3d 278, 285 (4th Cir. 2017). Accordingly, the
Department’s burden to justify its outside activities policy precluding
inspectors from campaigning for or holding elective office is minimal.
2. The Department Has a Significant Interest in
Protecting the Integrity of its Operations Against
Conflicts of Interest and the Appearance of
Impropriety
In contrast to petitioners’ minimal interest in dual office-holding,
the Department’s interest is weighty. To survive First Amendment
scrutiny, government employers must put forth an “adequate
justification for treating the employee differently from any other member
of the general public.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).
What the government must show to establish a sufficient justification
will vary with the facts of each case. Connick v. Myers, 461 U.S. 138, 151
(1983). As explained above, the government employer will usually
prevail 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’s restriction on speech was in fact a response
to the predicted disruption. Castine, 756 F.3d at 175. Here the
Department easily satisfies all three factors.
As to the first factor, the Department has reasonably predicted that
permitting inspectors to campaign for and hold elected office will
unavoidably disrupt its operations by resulting in conflicts of interest, or
11
the appearance of impropriety. Inspectors exercise considerable
discretionary authority over private industry. A dairy products
specialist I, for example, retains, discretion to find dairy producers
noncompliant with any of the numerous laws governing their output.
This can cost producers time and money to bring themselves into
compliance. Inspectors may also influence licensing decisions (R140),
allowing them to play a role in whether a dairy producer remains in
business. Not only that, but inspectors also directly interact with
representatives from the companies they regulate— they are the ones
who visit the facilities. (R140.)
Given these duties, an inspector who campaigned for elected office,
or later held office, would have a unique opportunity to exert pressure on
inspected entities to support their political priorities. Even if inspectors
were not so overtly conflicted, the appearance of conflict may still arise.
As the Commissioner observed, a regulated company may decide without
any prompting that its interests would be served by supporting an
inspector’s campaign or other personal initiatives. (R217, 226.) These
circumstances would impugn the fairness of inspections and, in turn, the
quality of agricultural products. See 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).
Moreover, the Department reasonably determined that there was
no way to remove the taint of dual office-holding. Any inspectors who
campaigned for elected office would be susceptible to claims that they
were soliciting special favors from supporters. Whether or not those
attacks were well-founded, the Department’s reputation would suffer.
And recusal, the ordinary curative measure, would only increase
disruption at the Department. Inspectors who held elected office would
need to be recused from interacting with any company that could feel
political pressure, making it virtually impossible for them to perform
their jobs. Even if such inspectors could continue in some capacity, the
Department would need to reassign other inspectors to fill the void. No
court has ever required a government employer to take such drastic
measures to accommodate employees who aspired to elected office. See
Loftus, 848 F.3d at 287 (duties of a county attorney created a “non-
waivable” conflict with her duties as a member of a city council); see also
12
Op. Atty. Gen. (Inf.) 2003-3 at 10 (individuals should avoid dual office¬
holding if it would lead to frequent recusals).
As to the second factor, the Department’s concerns about
maintaining its integrity outweigh its inspectors’ aspirations to hold
elected office while continuing in their official roles. The Department’s
inspectors serve on the front lines in carrying out its mission to ensure
the safety and quality of the agricultural products that New Yorkers
consume daily. To be effective, inspectors must exercise their discretion
free from ulterior considerations, like politics. By preventing inspectors
from entering the political arena, the Department’s revised outside-
activities policy thus “reduce[s] 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.
Restrictions on public employee dual office-holding serve four
important goals: (1) ensuring unbiased administration of the laws;
(2) avoiding the appearance of impropriety; (3) preserving merit-based
employment and preventing corruption; and (4) maintaining government
employees’ independence. Loftus, 848 F.3d at 286; Phillips, 781 F.3d at
777. Recognizing these justifications, courts around the nation have
considered similar constitutional challenges and unflinchingly ruled that
the balance favors government employers.
For example, the Hatch Act prohibits nearly all federal civil-service
employees from many types of political activity, including campaigning
for and holding elected office. 5 U.S.C. § 7323(a). Nevertheless, courts
have routinely held that the Hatch Act is constitutional. See, e.g., Letter
Carriers, 413 U.S. at 556; Broadrick v. Oklahoma, 413 U.S. 601, 616-18
(1973); Molina-Crespo, 547 F.3d at 658; McEntee v. U.S. Merit Sys. Prot.
Bd., 404 F.3d 1320, 1332-33 (Fed. Cir. 2005).
Courts have likewise upheld prohibitions on dual office-holding
imposed at the state and local level. See, e.g., Castine, 756 F.3d at 175
(bar against election commissioner campaigning for elected office);
Fletcher v. Marino, 882 F.2d 605, 613 (2d Cir. 1989) (bar against
community school board members holding other elected office); Signorelli
13
v. Evans, 637 F.2d 853, 858 (2d Cir. 1980) (bar against state judges
holding elected political office); Phillips, 781 F.3d at 779-82 (city
restriction on city employees holding elected office in surrounding
counties); Kane v. City of Albuquerque, 358 P.3d 249, 257-59 (N.M. 2015)
(restriction on fire captain running for state office); Whitehouse v. Moran,
808 A.2d 626, 631 (R.I. 2002) (restriction on teacher serving on town
board of canvassers, an appointed office); Snyder v. Unemployment
Comp. Bd. of Review, 509 Pa. 438, 443-44 (1985) (restriction on court
secretary campaigning for justice of the peace); Otten v. Schicker,
655 F.2d 142, 145 (8th Cir. 1981) (police department rule prohibiting
members from running for elected office).
Although petitioners assert that the Department failed to establish
a basis in fact for its revision to the outside activities policy (SSM Br. at
9), the record shows otherwise. After Kulzer was elected to office, he
began promoting an industrial complex in Lewis County. A dairy plant
manager subsequently reported that he felt pressured by Kulzer to locate
a facility in that complex. (R134-35.) Kulzer admitted that he spoke to
the plant manager about the Lewis County facility. (R249-50.) Kulzer
also served as chair of his legislature’s agricultural committee,
apparently a direct result of the fact that he worked for the Department.
(R211, 213.) These real-world events forced the Department to consider
the duties of its inspectors, determine that those duties were
incompatible with elected office, and take steps to limit the damage that
could arise by enabling its employees to hold incompatible offices. See
Fletcher, 882 F.2d at 613 (upholding law preventing community school
board members from holding other elected office in response to actual
cases of misconduct).
Petitioners assert that the Department never proved that the
incident between Kulzer and the plant manager occurred as reported
(SSM Br. at 5), but they miss the point. Even if Kulzer did not approach
the plant manager during a formal inspection, as he claims (R250), the
substance of the conversation nonetheless created an inherent
appearance of impropriety given Kulzer’s power to shutter the manager’s
plant. What matters, therefore, is the fact that the report was made in
the first place. Regardless of whether the plant manager’s perception of
impropriety was accurate, the report demonstrated to the Department
14
the ease with which such perceptions could arise when inspectors
campaigned for or held elected office. So petitioners are mistaken that
“administrative convenience” motivated the policy revision. (SSM Br. at
10.) Even if the Department investigated the incident and ultimately
cleared Kulzer of wrongdoing, the damage would already have been done.
Indeed, the need to investigate such complaints is itself disruptive.
Still, the Kulzer incident is ultimately immaterial. A half-century
of case law has made clear the significant government interests
supporting a prohibition against dual office-holding. In Phillips, the Fifth
Circuit rejected the plaintiffs argument that the city needed to make a
particularized demonstration of how a rule prohibiting dual office¬
holding advanced its interest because the Supreme Court in “Letter
Carriers had already done the job of balancing the interests here and
concluded that the government came out ahead.” 781 F.3d at 779-80
(emphasis in original). On that reasoning, the Department had ample
justification for the policy revision independently of the allegations of
impropriety against Kulzer.
Similarly mistaken is petitioners’ contention that the Department
may not prohibit dual office-holding because the Public Officers Law
already forbids conflicts of interest and the appearance of conflict. (SSM
Br. at 5, 10.) The Public Officers Law imposes broad proscriptions, while
leaving it to the individual agencies to flesh out what would amount to a
conflict of interest. See 19 N.Y.C.R.R. § 932.10. The Department has
determined that the incompatibility of an inspectors’ duties with elected
office creates an appearance of conflict that causes it direct and
immediate harm. If an inspector never engages in corruption, avoiding
the harm that arises out of this perception still outweighs inspectors’
interest in campaigning for elected office. See Letter Carriers, 413 U.S. at
565; Castine, 756 F.3d at 176-77. The First Amendment does not require
the Department “to sit idly by as one of its employee[s] . . . took on
additional duties or allegiances to another locality to political
constituency whose interest are or could be adverse to its own.” Loftus,
848 F.3d at 289.
Petitioners provide no support for their contention that, to comport
with the First Amendment, the Department may discipline individual
15
employees only after it discovers them abusing their official position to
the benefit of the elected office they simultaneously hold. Indeed,
petitioners have not identified a single case in which a court has
invalidated a prohibition against dual office-holding, making summary
disposition all the more appropriate.
Harman v. City of New York, 140 F.3d 111 (2d Cir. 1998), on which
petitioners heavily rely (SSM Br. at 8-10), is not to the contrary. Harman
was not about a prohibition on political activity. Rather, Harman
addressed the validity of an agency’s requirement that all of its
employees obtain its permission to speak with the media about its
“policies or activities.” Id. at 115. The Second Circuit found that the
employees had a strong First Amendment interest because commentary
about the agency’s practices, which could expose problems with those
practices, was quintessential citizen speech on matters of public concern.
Id. at 118-19. The court held that the City’s general interest in
preventing disruption could not justify the restriction because it would
invariably view critical commentary as more “disruptive” than favorable
commentary. Id. at 121. Despite petitioners’ argument otherwise (SSM
Br. at 10-11), aspirations to office do not contribute to informed discourse
about the Department’s practices. In fact, the Second Circuit in Harman
distinguished the City’s media policy from the Hatch Act, observing that
“the Hatch Act primarily regulated conduct as opposed to expression,”
and that the significant government interests in restricting employee
political activity were well-established. See id. at 122 n.5.
Nor is it dispositive that the Department’s outside-activities policy
was not implemented by the Legislature. (SSM Br. at 9.) In fact, it should
come as no surprise that the Legislature left the Department to identify
and prevent employee conflicts of interest, given the Department’s
expertise in “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). The Department’s internal policy is valid
because the Department’s significant interest in avoiding actual or
perceived impropriety outweighs inspectors’ minimal interest in dual
office-holding. It is true that statutes carry a “strong presumption of
constitutionality.” Matter of County of Chemung v. Shah, 28 N.Y.3d 244,
16
262 (2016). But without that presumption, the Department’s policy
revision does not somehow become less constitutional.
As for the third and final factor identified in Castine and applied by
the Appellate Division, the Department’s revision to its outside activities
policy was a measured response to its concerns of disruption. Public
employers may impose “only those speech restrictions that are necessary
for [it] to operate efficiently and effectively.” Garcetti, 547 U.S. at 419.
Here the revision to the outside activities policy is limited in scope,
reaching only inspectors. Allowing these employees to hold public office
raises a unique risk of actual conflict— and an inevitable appearance of
conflict— because their duties (1) give them considerable power over
private entities; and (2) bring them into direct contact with those entities.
And the prohibition the Department imposes on this fraction of its
workforce is limited to dual office-holding. As to any other outside
activity, political or otherwise (R227), the Department approves
inspectors’ requests on a case-by-case basis— the same as it treats
requests from any of its other employees. See Fletcher, 882 F.2d at 613
(prohibition on dual office-holding was valid where covered employees
could engage in other forms of political activity); accord Phillips, 781 F.3d
at 780.
Petitioners nonetheless argue that the Department’s policy is
overbroad because it prohibits inspectors from campaigning for elected
offices beyond county legislator (SSM Br. at 5). But regardless of the
elected office to which the employee may aspire, the concerns that
support the Department’s policy are implicated. Campaigning and
holding office renders inspectors susceptible to accusations that they are
accepting support in exchange for official favors— favors that inspectors
are undeniably in a position to bestow. This concern exists regardless of
whether the employee is running for the county legislature, a school
board, or any other publicly elected position. See Loftus, 848 F.3d at 288
(the distinction between partisan office and nonpartisan office is
immaterial); Wachsman v. City of Dallas, 704 F.2d 160, 167-68 (5th Cir.
1983) (upholding political activities ban as applied to nonpartisan offices
because employers may have valid concerns about office-holders causing
disruption by allowing “personal ambition, greed, [and] fear” to infect
their official duties); but see Callaghan v. City of South Portland, 76 A.3d
17
348, 358-59 (Me. 2013) (city could not bar part-time librarian and park
employee from running for school board, but could bar other employees).
Finally, by failing to raise the argument below, petitioners have
failed to preserve their contention that the Department’s policy is under-
inclusive because it does not similarly prohibit certain business activities
(SSM Br. at 10.) Gaines v. City of New York, 29 N.Y.3d 1003, 1004 (2017).
Nevertheless, petitioners ignore that all Department employees,
including inspectors, are already prohibited from having a business
interest in an entity over whom they exercise official power. (R152.)
Regardless of how the Department addresses other outside activities, an
extensive body of case law supports its prohibition on dual office-holding
by a narrow subset of its employees.
In sum, the Appellate Division properly upheld the Department’s
revised outside activities policy precluding inspectors from campaigning
for or holding elected office because the Department’s significant interest
in maintaining the integrity of its operations outweighed inspectors’
interest in dual office-holding. This Court should affirm.
Respectfully submitted,
BARBARA D. UNDERWOOD
Attorney General of the
State of New York
ANDREW D. BING
Deputy Solicitor General
VICTOR PALADINO
JONATHAN D. HITSOUS
Assistant Solicitors General
of Counsel
: JONATHAN D~ HITSOUS
sistant Solicitor General
18
cc: Jessica C. Caggiano, Esq.
Public Employees Federation
1168-70 Troy-Schenectady Road
Albany, New York 12212-2414
19
AFFIRMATION OF COMPLIANCE
Pursuant to the Rules of Practice of the New York Court of Appeals
(22 N.Y.C.R.R.) § 500.11(m), Jonathan D. Hitsous, an attorney in the Office of
the Attorney General of the State of New York, hereby affirms that according
to the word count feature of the word processing program used to prepare
this brief, the brief contains 5,722 words, which complies with the limitations
stated in § 500.11(m).
LN D. HITSOUS
✓
AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
)ss:
COUNTY OF ALBANY )
Anniss