APL-2017-00237
524561
STATE OF NEW YORK
SUPREME COURT
APPELLATE DIVISION
THIRD DEPARTMENT
In the Matter of the Application of
WAYNE SPENCE, as PRESIDENT of the New York State Public Employees Federation, AFL-
CIO, THE NEW YORK STATE PUBLIC EMPLOYEES FEDERATION, AFL-CIO, and
GREGORY KULZER and RONALD BROWN,
Plaintiffs-Petitioners/Appellants-Appellants,
-against-
NEW YORK STATE DEPARTMENT OF AGRICULTURE & MARKETS, and RICHARD A.
BALL, individually, and in his official capacity as Commissioner of New York State Department of
Agriculture and Markets,
Defendants-Respondents/Appellees-Respondents.
REPLY BRIEF ON BEHALF OF PLAINTIFFS-PETITIONERS/APPELLANTS-APPELLANTS
Albany County Index No. 3043-15
EDWARD J. ALUCK, ESQ.
Attorney for Plaintiffs-Petitioners/Appellants-Appellants
1168-70 Troy-Schenectady Road
P. O. Box 12414
Albany, New York 12212-2414
(518) 785-1900, Extension 241
JESSICA C. CAGGIANO ESQ.
Of Counsel
DATED: June 12, 2017
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT 1
ARGUMENT
POINT I
APPELLEES HAVE FAILED TO MEET THE HEAVIER
CONSTITUTIONAL BURDEN ASSOCIATED WITH PRIOR
RESTRAINTS OF SPEECH, AS EMBODIED IN THE
CHALLENGED POLICY, AND ALSO FAILED TO MEET
THEIR BURDEN IN CONNECTION WITH THEIR
UNCONSTITUTIONAL ACTS TOWARDS APPELLANTS
KULZER AND BROWN 2
POINT II
THE CHALLENGED POLICY AND ACTIONS OF APPELLEES
TOWARDS APPELLANTS ARE IRRATIONAL, ARBITRARY,
AND CAPRICIOUS WHERE APPELLEES RELY ONLY ON
ALLEGED APPARENT CONFLICTS OF INTEREST 12
CONCLUSION 15
ii
TABLE OF AUTHORITIES
CONSTITUTIONS
CASES
Page
Belle v. Town of Onondaga, 61 A.D.2d 352 (4th Dep’t 1978) .8
Belmonte v. Snashall, 2 N.Y.3d 560 (2004) 13
Boyle v. Kirwin, 39 A.D.2d 993 (3d Dep’t 1972) .7
Eastern Milk Producers Coop. Ass’n v. State Dep't of Agric. & Markets, 58 N.Y.2d 1097
(1983) 13
Golden v. Clark, 76 N.Y.2d 618 (1990) .8
Harman v. City of New York, 140 F.3d 111 (2d Cir. 1998) passim
Kane v. City of Albuquerque, 358 P.3d 249 (N.M. 2015) .8
Mallickv. Div. of Homeland Sec. & Emergency Servs., 145 A.D.3d 1172 (3d Dep’t 2016) 13
Marinoffv. City College ofN.Y., 357 F. Supp.2d 672 (S.D.N.Y. 2005)
McCormick v. Edwards, 646 F.2d 173 (5th Cir. 1981)
.3,5
.8
Merle v. U.S., 351 F.3d 92 (3d Cir. 2003)
Molina-Crespo v. U.S. Merit Sys. Prot. Bd,547 F.3d 651 (6th Cir. 2008)
Painter v. Graley, 70 Ohio St. 3d 377 (1994)
Phillips v. City of Dallas, 781 F.3d 772 (5th Cir. 2015)
.8
.8
.8
.8
Pickering v. Board of Education, 391 U.S. 563 (1968) passim
Price v. Saugerties Cent. Sch. Dist., 2006 U.S. Dist. LEXIS 8329,
(N.D.N.Y. Feb. 9, 2006) .5
iii
TABLE OF AUTHORITIES cont'd.
CASES
Page
Purdy v. Kreisberg, 47 N.Y.2d 354 (1979) .7
Sanjour v. EPA, 56 F.3d 85 (Ct. of Appeals, Dist. Co. 1995) .4,6
Signorelli v. Evans, 637 F.2d 853 (2d Cir. 1980) .6
Snyder v. Unemployment Comp. Bd. of Review, 509 Pa. 438 (1985) .8
United States v. Nat'l Treas. Empl. Union, 513 U.S. 454 (1995) passim
Warder v. Board of Regents, 53 N.Y.2d 186 (1981) 13
Waters v. Churchill, 511 U.S. 661 (1994) 11
Whitehouse v. Moran, 808 A.2d 626 (R.I. 2002). .8
STATUTES
Civil Practice Law and Rules §3001 1
Civil Practice Law and Rules Article 78, 1
Public Officers Law .9, 10, 14, 15
STATE OF NEW YORK
SUPREME COURT
APPELLATE DIVISION
THIRD DEPARTMENT
In the Matter of the Application of )
)
WAYNE SPENCE, as PRESIDENT of the New York
State Public Employees Federation, AFL-CIO, THE NEW )
YORK STATE PUBLIC EMPLOYEES FEDERATION, )
AFL-CIO, and GREGORY KULZER and RONALD )
BROWN,
) Albany County
Index No. 3043-15
)
)
Plaintiffs-Petitioners/Appellants-Appellants, )
) ORAL ARGUMENT
) IS REQUESTED [X]
)
-against- )
)
NEW YORK STATE DEPARTMENT OF
AGRICULTURE & MARKETS, and RICHARD A.
BALL, individually, and in his official capacity
as Commissioner of New York State Department of
Agriculture and Markets,
)
)
)
)
)
)
Defendants-Respondents/Appellees-Respondents. )
)
PRELIMINARY STATEMENT
As stated more completely in Plaintiffs-Petitioners/Appellants-Appellants’ (hereinafter
“Appellants”) main brief, this is an appeal in a proceeding commenced under Article 78 of the Civil
Practice Law and Rules (“CPLR”) as a hybrid action/special proceeding for declaratory and
pennanent injunctive relief, ancillary monetary relief and other damages permitted by law pursuant
to CPLR §3001 to redress Defendants-Respondents/Appellees-Respondents’ (hereinafter
“Appellees”) deprivation of Appellants’ rights, as specified in Appellants’ brief.
2
ARGUMENT
POINT I
APPELLEES HAVE FAILED TO MEET THE HEAVIER
CONSTITUTIONAL BURDEN ASSOCIATED WITH PRIOR
RESTRAINTS OF SPEECH, AS EMBODIED IN THE
CHALLENGED POLICY, AND ALSO FAILED TO MEET
THEIR BURDEN IN CONNECTION WITH THEIR
UNCONSTITUTIONAL ACTS TOWARDS APPELLANTS
KULZER AND BROWN.
Appellants rely fully on their briefs discussion of: (1) Appellees’ heavy burden under
the modified Pickering v. Board of Education, 391 U.S. 563 (1968), standard articulated in
United States v. National Treasury Employees Union (“NTEU”), 513 U.S. 454 (1995), infra,
with respect to the constitutionality of a prior restraint on speech, as embodied in Appellees’
policy ban at issue in this case; (2) Appellees’ burden under the Pickering standard with regard
to Appellees’ unconstitutional acts towards Petitioners Kulzer and Brown; and, (3) Relevant case
law for the puipose of highlighting how neither the Court below, nor Appellees, have been able
to point to a case where such a broad, up-front ban of protected speech was upheld by another
Court pursuant to executive action, as compared to statute or regulation.
Appellees’ have failed to meet the heavier constitutional burden associated with prior
restraints of speech applicable to their broad ban of political speech, and have likewise failed to
meet their burden associated with their unconstitutional actions towards Petitioners Kulzer and
Brown.
First, the challenged policy in this case 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.) The at issue broad and total ban
3
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, 12-1A, 37-38, 98-101.)
With respect to their policy ban of this speech, Appellees’ burden is the heavier burden
articulated by the Supreme Court in NTEU, supra. (See Appellants’ Br. at 36-37.) The Court in
NTEU conducted a modified Pickering analysis (see Appellants’ Br. at 36), and emphasized that
the government’s burden is “heavy” where it implements up-front, widespread bans that chill
potential speech before it occurs. See id. at 468. (See Appellant’s Br. at 37.) Courts have
referred to this test as a “modified Pickering” or "Pickering!NTEU' 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 ofN.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,
4
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).
Thus, Appellees erred in asserting that the parties in this case agree that the Pickering test
alone governs this Court’s review of Appellees’ ban on campaigning and holding elective office.
(See Appellees’ Br. at 11-12.) Appellants’ brief is clear that Pickering articulates the appropriate
test for Appellees’ wrongful and unconstitutional acts towards Appellants Kulzer and Brown
(Appellants’ Br. at 30), and Appellants’ brief is equally clear that Appellees’ bear a heavier
burden, under a “Pickering!NTEU” analysis, as articulated in NTEU, for their prior restraint of
speech. (See Appellants’ Br. at 36-37.) Appellees’ misunderstanding of their burden is
highlighted by their suggestion that NTEU is somehow not relevant to the Court’s disposition of
this matter. (Appellees’ Br. at 18.)
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; namely,
1 We note that contrary to the distinction raised in Appellees’ brief at 17-18, the appropriate standard
has little to do with whether a restriction is challenged facially or as applied, but rather, it is about
whether the restriction comes after the speech is made by an employee, or purports to restrict the speech
of a class of employees in the first instance. See id. at 91-92; see Hannan at 118-19. This distinction is
irrelevant for purposes of this case in any event, as Appellees’ wrongful denials of Petitioners Kulzer and
Brown pre-date the April 6, 2015 revision of the policy challenged by Petitioners as a prior restraint. (See
R. 26-27, 43-44, 72-74, 37-38, 98-101, 110; See Appellants’ Br. at 10.) There are thus no “as.applied”
challenges with respect to the application of the April 6, 2015 revision pending before this Court. (See
id.)
5
“[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.)
Appellees’ claim that its rule impacts a “narrower” group of speakers because it only applies to a
large group of employees instead of all employees, (Appellees’ Br. at 19) is inapposite and
irrelevant to the fact that for those employees, Appellees have prohibited a broader class of
speech, upfront, and without statutory or regulatory direction.
Although Appellees erred in applying a straight Pickering analysis, without regard to the
heavier burden articulated by the courts, it is nevertheless clear that they are unable to meet
either burden in any event where their arguments amount to often inconsistent conjecture, as
opposed to real, fact-based concerns. (See Appellees’ Br. at 13-17.) 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
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., 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
6
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).
Appellees’ claim that the impact on employees is de minimus and they did not actually
prohibit or otherwise ban speech because Appellants can choose to work elsewhere is contrary to
not only applicable prior restraint case precedent, but First Amendment precedent generally.
(See Resp’s Br at 13); See e.g., Harman at 117 (“Individuals do not relinquish their First
Amendment rights by accepting employment with the government.”) If this were a valid basis to
justify such prohibitions, courts would hardly need to apply and evaluate the at-issue standard or
any other under the First Amendment for governmental employees alleging such violations.
Indeed, the sole case cited by Appellees for this proposition, Signorelli v. Evans, involved a State
Judge’s contention that State law contravened the Qualifications Clause of the Constitution, and
did not involve a First Amendment analysis at all. 637 F.2d 853 (2d Cir. 1980).
Further, Appellees’ mischaracterization of Appellants’ position on page 17 of their brief,
in which they muddle the issues by claiming our contention is that the policy “improperly
extends beyond partisan elected office” highlights what they have not been able to contradict:
That neither the court below, 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
7
legislation restricting speech - such as the Hatch Act) (emphasis added). Appellees’ reliance
upon the Hatch Act (Appellees’ Br. at 18), only serves to further distinguish and highlight the
unconstitutional nature of Appellees’ policy. The Hatch Act as inteipreted and upheld by the
Courts represents a narrower proscription to speech itself (partisan campaign and office) as
compared to Appellees’ ban of all campaigning and holding of elective office. (See Appellants’
Br. at 17-19.) 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.
Thus, the myriad of cases cited to by Appellees’ on pages 13, 15-16 of their brief not
already addressed by Appellants in their initial brief, are inapposite, as, where these cases are
actually conducting federal constitutional analyses, they involve challenges to government
actions based on law, rules, and/or regulations, as compared to the unilateral, internal actions of
an executive agency on its own initiate and/or involve narrower prohibitions of partisan political
activity, often for elected or judicial officials and employees. See, Boyle v. Kirwin, 39 A.D.2d
993 (3d Dep’t 1972) (involving challenge to lawfully-enacted regulation preventing State Police
from holding public or appointed office); Matter of Purdy v. Kreisberg, 47 N.Y.2d 354 (1979)
8
(involving Article 78 review of a police officer’s termination for violating a work rule
prohibiting him from using his position as a police officer to aid or hinder a political entity)
(emphasis added); Merle v. U.S., 351 F.3d 92 (3d Cir. 2003) (involving a Hatch Act challenge);
Molina-Crespo v. U.S. Merit Sys. Prot. Bd, 547 F.3d 651 (6th Cir. 2008) (involving a Hatch Act
challenge as applied to agency director); Golden v. Clark, 76 N.Y.2d 618 (1990) (involving
charter provision adopted by voters of New York, which prohibited high-level officers from
holding political party office); In re Belle v. Town of Onondaga, 61 A.D.2d 352 (4th Dep’t 1978)
(involving Board legislation prohibiting town officers and employees from holding political
party office); Phillips v. City of Dallas, 781 F.3d 772 (5th Cir. 2015) (involving city charter
provisions preventing city employees from simultaneously seeking office in county overlapping
city); Kane v. City of Albuquerque, 358 P.3d 249 (N.M. 2015) (involving city regulations
prohibiting city employees from holding elective office); Whitehouse v. Moran, 808 A.2d 626
(R.I. 2002) (involving application of statute that prohibited town teacher/State employee from
serving on board of canvassers); Painter v. Graley, 70 Ohio St. 3d 377 (1994) (involving
candidate for partisan political office and application of Ohio Constitution only, and no First
Amendment analysis, in a claim for wrongful termination in violation of public policy); Snyder
v. Unemployment Comp. Bd. of Review’, 509 Pa. 438 (1985) (involving application of
unemployment law for judicial employee who resigned in connection with running for partisan
political office, contrary to administrative directive with the full force and effect of duly
promulgated rules pursuant to the Pennsylvania Constitution); McCormick v. Edwards, 646 F.2d
173 (5th Cir. 1981) (involving federal law restricting partisan political activity of federal
employees).
9
Thus, the issue is not that Appellees’ policy improperly extends the ban beyond partisan
office, it is that the court did not and Appellees’ have not cited to any precedent demonstrating to
this Court that a full-out ban of all campaigning for, and holding of elected office, has ever been
previously upheld for a large group of employees in this context, and particularly in the case of a
Pickering!NTEU analysis where the government’s burden is indisputably heavier.
Similarly, Appellees’ references to the Public Officers Law and related ethics opinions
(Appellees’ Br. at 4, 22-23) do not support their claimed actions either in support of their policy
ban or their unconstitutional actions against Petitioners Kulzer and Brown but, rather, highlight
precisely why these actions - taken by the executive on its own initiative, as compared to being
taken pursuant to law, rule, or regulation, such as in the case of the Hatch Act, should be
scrutinized by this Court.
Appellees have failed to meet their burden where, for the reasons discussed in
Appellants’ brief more fully and in POINT II, infra, they can only rely upon their purported
interest in avoiding the appearance of conflicts of interest (Appellees’ Br. at 19), and not actual
conflicts of interest, which are already prohibited by the Public Officers Law in any event. 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
10
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. 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 unregulated, 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).
Even analyzing these facts under the straight Pickering analysis applicable to the
individual, unconstitutional actions taken against Petitioners Kulzer and Brown, the generalized
and speculative concerns forwarded by Appellees are the same concerns applicable to many
types of outside activities not bamied by the Department, but examined on an individual basis,
and the same speculative concerns could be used to deny the outside activity of the
Commissioner - engaging in a private business that does business with entities regulated by the
Department. Appellees’ suggestion that these inspectors have more discretion over regulated
entities, by virtue of serving as county legislators, than the Commissioner of the Department of
Agriculture and Markets would in connection with his own outside activity, defies reason. (See
Appellees’ Br. at 26.)
For all of these additional reasons, as well as those articulated more fully in Appellants’
brief, Appellees’ policy ban is an unconstitutional, unlawful restriction of speech, and the court
below erred in granting summary judgment to Appellees.
12
POINT II
THE CHALLENGED POLICY AND ACTIONS OF APPELLEES
TOWARDS APPELLANTS ARE IRRATIONAL, ARBITRARY,
AND CAPRICIOUS WHERE APPELLEES RELY ONLY ON
ALLEGED APPARENT CONFLICTS OF INTEREST.
Appellants rely fully on their articulation of how Appellees’ policy and cited actions
towards Appellants were arbitrary, capricious, irrational, and contrary to law in their brief.
Appellants’ reply for the limited purposes of clarifying that Appellees’ are not entitled to
deference in this case pursuant to the Article 78 challenge, nor were they accorded any by the
lower Court (see R. 14-15). Further, Appellees are not entitled to inconsistently claim that the
court below did not improperly consider the hearsay in the Cuddeback Affidavit, but
nevertheless reference it in support of their arguments. Without the hearsay improperly “relied”
upon, Appellees are left with only alleged apparent conflicts of interest to support their policy
ban and improper actions against Appellants for Article 78 purposes. In this case, the alleged
apparent conflicts of interest are insufficient to meet the Article 78 standard.
Appellees erroneously assert that they are entitled to deference in connection with this
Court’s Article 78 review. (Appellees’ Br. at 21.) Appellees are not entitled to the deference
that some agencies are accorded in connection with Article 78 reviews, nor did the Court below
accord them any. (See R. 14-15.)
Indeed, case law discussing the issue of when it is appropriate for a court to defer to the
agency makes clear that this would absolutely not qualify as a circumstance in which deference
is appropriate, since such deference is accorded in situations involving interpretation and
application of law, rules, regulations, and administrative determinations where the administrative
13
agency is acting in an area where it has expertise or special knowledge. See, e.g., Belmonte v.
Snashall, 2 N.Y.3d 560, 565-66 (2004) (holding that Workers Compensation Board’s
interpretation of the term “board certified” in its own statute was not entitled to deference, as it
did not involve specialized knowledge presumed to be possessed by the agency, but rather, “pure
statutory reading and analysis.”). The courts have deemed deference appropriate, for Appellees
in particular, in areas that actually involve Appellees’ administrative expertise on a law, rule, the
application thereof, or an administrative determination that involves special knowledge of the
administrative agency. See Eastern Milk Producers Coop. Ass'n v. State Dep't of Agric. &
Markets, 58 N.Y.2d 1097, 1100 (1983) (according deference to State Department of Agriculture
and Markets’ determination to disallow claims from milk security fund, based on its
interpretation of applicable Agriculture and Markets law).
Further, the cases cited to by Appellees are inapposite, and of course, do not involve a
situation where a Court deferred to an administrative agency in connection with its promulgation
of ethics rules for its employees based on supposed ethics expertise. Warder v. Board of
Regents, 53 N.Y.2d 186 (1981) does not support Appellees’ contention that they are entitled to
deference. (See Appellees’ Br. at 21.) In that case, the issue was the validity of a decision of the
Board of Regents voting to deny the charter application of a proposed seminary school. See id.
See also, Matter of Mallick v. Div. of Homeland Sec. & Emergency Servs., 145 A.D.3d 1172,
1174 (3d Dep’t 2016) (deferring to agency where the outside activity of fire inspector was fire
inspections, and so the agency had special knowledge of underlying operations necessary to
reviewing the outside activity request). In stark contrast, Appellees have no special knowledge
or expertise in the area of county legislative practice. Thus, Appellees have offered neither facts
14
on the record, nor case law to support their contention that the Department of Agriculture &
Markets should be entitled to deference in this matter relative to employees serving as county
legislators.
Second, Appellees are not entitled to inconsistently claim that the court below did not
improperly consider the hearsay in the Cuddeback Affidavit, but nevertheless reference the
hearsay in support of their arguments. (See Appellees’ Br. At 9, 14, 19-20, 25) Without such
hearsay, Appellees are left with only alleged, apparent conflicts of interest to support their policy
ban and improper actions against Appellants, which are insufficient to meet the Article 78
standard of review or the constitutional standards.
Indeed, the now heralded concerns about the appearance of conflict or impropriety, as
well as the Public Officers Law, preexisted Appellees’ approval of Appellant Kulzer’s outside
activity in 2013. These “concerns” also preexisted Division Director McCue’s June 5, 2014 re¬
approval of Appellant Kulzer’s request to continue serving as County Legislator. Significantly,
Division Director McCue’s reapproval came several months after her alleged reporting of the
hearsay incident relied upon by Appellees to Mr. Cuddeback - she reported the alleged incident
on March 6, 2014, and subsequently approved Appellant Kulzer’s request for reapproval on June
5,2014. (SeeR. 75, 134-35.)
Appellees argue that they have not arbitrarily ignored their own prior precedent by
denying Appellant Kulzer and Brown’s requests under these circumstances. (Appellees’ Br. at
24.) Yet, the fact that they cannot rely on the hearsay in their Affidavits, which those documents
purport was the motivator for these denials, as well as the impetus for the policy ban (See R.
129-39) results in an arbitrary departure from their own prior precedence. This is particularly
15
true where, as noted above, the generalized and speculative concerns2 put forth by the
Commissioner in his denials, as well as the POL, preexisted the denials. Thus, nothing changed
for purposes of this action between the first granting of Petitioner Kulzer’s request in 2013, the
subsequent request being granted by Director McCue initially (a fact Appellees neglect to
mention or address in their brief), and the subsequent denials by Chris Cuddeback and the
Commissioner. (See R. 75, 134-35.)
CONCLUSION
For all or any of these reasons, as well as those already propounded by Appellants in their
brief, this Court should grant the relief requested by Appellants.
DATED: June 12, 2017
Albany, New York
Respectfully submitted,
EDWARD J. ALUCK, ESQ.
Attorney for Plaintiffs-Petitioners/
Appellants/Appellants
Office and P.O. Address
1168-70 Troy-Schenectady Road
P.O. Box 12414
Albany, New York 12212-2414
(518) 785-1900, Ext. 241
V
By:
JEptCA C. CAGGIANOESi
'Or Counsel (
2 Appellees go beyond the record in asserting that inspectors have considerable discretion over
companies “while addressing issues involving them as county legislators.” (Appellees’ Br. p. 7.) They
also ask the Court to assume, without support, that such companies would feel pressure to develop in the
county, presumably the one in which the employee sits on the county legislature, (see id.)