Assistant Attorneys General ruled “policy makers” for the purposes of the First Amendment, Title VII and the ADEA
Butler v NYS Dept. of Law, CA2, [Appeal from summary judgment in favor of the State, see Butler v. New York State Dep’t of Law, 998 F. Supp. 336]
Who is a policy maker? This was one of the issues before the court when former Assistant Attorney General Barbara B. Butler sued then Attorney General Dennis Vacco, contending that she had been unlawfully fired from her position as a Deputy Bureau Chief.
Was Butler was a policy maker and thus subject to dismissal for reasons of political patronage? The Court concluded that Butler was a policy maker.
In determining whether an individual is a policymaker in accordance with the Elrod [427 US at 367] and Branti [445 US 507] standards, the Second Circuit said it considers whether or not the employee:
(1) is exempt from civil service protection;
(2) has some technical competence or expertise;
(3) controls others;
(4) is authorized to speak in the name of policymakers;
(5) is perceived as a policymaker by the public;
(6) influences government programs;
(7) has contact with elected officials; and
(8) is responsive to partisan politics and political leaders.
The Circuit Court said that as Deputy Bureau Chief, Butler was not protected against a political patronage dismissal because her position fell within the policymaker exception to First Amendment protection.
Further, said the court, Butler was not protected under Title VII because her position came within the statutory exception for an appointee on the policymaking level.
Finally, Butler’s ADEA claim failed because the State’s Eleventh Amendment immunity prevented her from suing the State Department of Law for age discrimination under ADEA.
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law.
Email: publications@nycap.rr.com