Thursday, October 13, 2011

Political activities and public employment

Political activities and public employment
Davis v City of New York, USDC, SDNY, Judge Scheindlin

Election years often produce cases involving a public employee in the classified service seeking election to political office and the impact of federal and state law upon such efforts. Often the issue concerns the individual's right to continue as an employee while campaigning for such office. In the Davis case, the court also considered the liability of the employer that violates an individual's rights in such a situation.

One election-related statute is the federal Hatch Act [5 USC 1501]. The Hatch Act attempts to insulate the civil service from the influence of partisan politics. The Act requires, among other things, that state and municipal employees responsible for administering federal funds abstain from participating in partisan political activities, including running for office in a partisan election.

How is a partisan election defined? An election is partisan where the candidate is running as a representative of a political party whose presidential candidate received electoral votes at the preceding presidential election.

The Davis case involved a number of state and federal issues concerning a public employee running for elective office.

James Davis, a New York City police officer was on the 1998 Liberal Party "petition slate" for the upcoming November election. He "conducted a minimal campaign." On November 3, 1998, his name was listed on the election ballot as the Liberal Party's nominee for Member of the State Assembly. The next day the Department dismissed him, stating that it had terminated Davis "for violating a law that prohibits police officers from accepting a political party's nomination without resigning their commission." citing Chapter 49, Section 1129 of the New York City Charter.*

Significantly, the Police Department did not cite the Hatch Act in its defense, presumably because Davis was not involved in the administration of federal funds.

In another case involving the Hatch Act, the individual seeking elective office was a postal worker. In Merle v United States, USDC DNJ, Civ. 02-3469, a federal district court judge upheld the Act's prohibition on federal workers continuing in service while running for elective officer. US District Court Judge Joseph Irenas ruled that the Hatch Act did "not prevent ... participation as a candidate ... but instead constitutes a valid attempt on the part of Congress to insulate public employees from partisan political influence."

Judge Irenas held that the Hatch Act did not require Merle to quit his job to appear on the ballot but merely forces him to choose between his job and elective office. According to the ruling, the individual "need not even resign from his position in order to appear on the ballot, as the burden is upon the government to respond to his candidacy with a sanction for removal or suspension."

In Davis' case, the New York City Police Department "responded to his candidacy" by removing him from his position pursuant to the mandates of the City's Charter.

Davis subsequently asked to be reinstated to his former position because, as it turned out, he was never actually a bona fide nominee for elective office. Why not" Because he had not filed the required certificate accepting the nomination.

The Board of Elections confirmed this fact by writing the Department that it had included Davis' name on the ballot in error. Still the Department refused to reinstate Davis and he sued. About a year later New York State Supreme Court Justice Barbara R. Kapnick ruled that Davis had not violated Section 1129 and "ordered that the Police Department reinstate Davis as a police office forthwith with back pay."

Davis, however, continued to press his federal civil rights law suit, claiming that the Department's initial refusal to reinstate him was a violation of his rights under 42 USC 1983 and, in addition, had retaliated against him by refusing to reinstate him when it learned of his "non-candidacy" in violation of 42 USC 1983 because:

1. He had challenged the Democratic incumbent, Clarence Norman, in a primary election the summer of 1998;

2. He had criticizing the Police Department for police brutality over the years; and

3. He had spoke out on issues of public concern.

Although Davis won a $100,000 jury verdict for damages, Federal District Court Judge Scheindlin set it aside. Judge Scheindlin said that although Davis showed that his constitutional rights were, indeed, violated, he did not prove the second element required for him to prevail: that the unconstitutional act was the result of a "policy" or "custom" of retaliation in the agency.

Judge Scheindlin explained that "municipalities such as the City of New York may only be held liable when the city itself deprives an individual of a constitutional right." Thus, ruled the court, in order for an individual deprived of a constitutional right to have recourse against a municipality under 42 USC 1983, he or she must show that he or she was harmed by a municipal "policy" or "custom," citing Monell v New York City Department of Social Services, 436 US 658. Judge Scheindlin also noted that "[a] municipality may not be held vicariously liable under Section 1983 on the basis of its employer-employee relationship with the employee" because "a municipality may not be held liable on a theory of respondeat superior."

* Section 1129 provides that "Any ... member of the police force ... who shall during his or her term of office be nominated for any office elective by the people ... and shall not, within ten days succeeding same, decline the said nomination, shall be deemed thereby to have resigned his or her commission and to have vacated his or her office

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at

Challenging Adverse Personnel Decisions at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


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