September 24, 2018

Public employers may prohibit its employees from campaigning for, and holding, elected office subject to its action satisfying the so-called Pickering Balancing Test

Public employers may prohibit its employees from campaigning for, and holding, elected office subject to its action satisfying the so-called Pickering Balancing Test
Matter of Spence v New York State Dept. of Agric. & Mkts., 154 AD3d 1234, Decided October 26, 2017
In the Matter of Wayne Spence, as President of the New York State Public Employees Federation, AFL-CIO, et al. v New York State Department of Agriculture and Markets et al., 2018 NY Slip Op 06071, Court of Appeals, Decided on September 18, 2018

Gregory Kulzer and Ronald Brown were employed as Dairy Product Specialists by the New York State Department of Agriculture and Markets [Department]. Their duties included inspecting and rating milk plants and farms in accordance with state and federal law.

In 2013, Kulzer submitted a request for "approval of outside activities" to the Department to campaign for the elected position of Lewis County Legislator. His request was approved, subject to certain restrictions, and he successfully campaigned for and was sworn in as a Lewis County Legislator in January 2014. Upon expiration of the Department's initial approval, Kulzer submitted a renewed request seeking continued approval to serve as a Lewis County Legislator. In August 2014, the Department disapproved Kulzer's request and subsequently the Commissioner sustained the disapproval on the ground that, among other things, Kulzer's outside activities created the appearance of a conflict of interest.

Brown subsequently submitted a request for approval of outside activities to the Department, seeking approval to campaign for and serve as an Oneida County Legislator. Brown's request was disapproved by the Department, also on the ground that this outside activity would create the appearance of a conflict of interest, and, upon appeal, the Commissioner upheld the disapproval.*

Following these actions the Department revised its Employee Policies Handbook with respect to employees' outside activities providing 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."*

Wayne Spence, as President of the New York State Public Employees Federation, et al, [Petitioners] initiated a CPLR Article 78 proceeding challenging the Department's disapproval of the requests submitted by Kulzer and Brown to campaign for and serve as county legislators, contending that the Department's determinations and subsequent amendment of its outside-activities policy violated the First Amendment of the Constitution of the United States and were otherwise arbitrary, capricious and without lawful authority.

Supreme Court granted the Department's motion to dismiss the Petitioners' Article 78 action and Petitioners appealed the Supreme Court's decision to the Appellate Division contending that the lower court had erred when found that the Department's disapproval of Kulzer's and Brown's requests to campaign and hold elected office and the revision of its outside activities policy did not violate the First Amendment.

The Appellate Division, citing Pickering v Board of Education of Township High School District, 391 US 563, noted that although "it is well settled that public employees do not 'relinquish the First Amendment rights [that] they would otherwise enjoy as citizens' as a result of their public employment," nevertheless upon entering government service, "public employees do accept certain restraints or limitations on their free speech rights" as it is recognized that the State has an interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.**

In the words of the Appellate Division, "[t]he primary issue, therefore, is whether Supreme Court erred when it determined that 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."

Applying the so-called Pickering Balancing Test, courts have made clear that such a balance will tip in the employer's favor so long as "(1) the employer's prediction of the disruption that such speech will cause is reasonable; (2) the potential for disruption outweighs the value of the speech; and (3) the employer took the adverse employment action not in retaliation for the employee's speech, but because of the potential for disruption."

Here the Appellate Division found that Supreme Court had properly determined that the Pickering balance tips in the Department's favor and, therefore, the Department's disapprovals and revised outside activities policy were not unconstitutional. In effect the court decided that the  Department did not act arbitrarily or capriciously when it revised its outside activities policy nor when it disapproved Kulzer's and Brown's requests to campaign for and hold elected office, explaining that "so long as the Department's determinations have 'a rational basis, [they] will be sustained, even if a different result would not be unreasonable.'"

The Court of Appeals, Judges Rivera and Wilson, in a separate opinion, dissenting, sustained the Appellate Division ruling holding that "the challenged policy has not been shown to be unconstitutional."

* Upon disapproval of Kulzer's request to continue serving as Lewis County Legislator, the Department informed Kulzer that, absent his resignation from the County Legislature, he would be subject to disciplinary action. Kulzer did not resign from his position in the County Legislature and, as a result, in May 2015, the Department initiated disciplinary proceedings against him. It appears that said disciplinary proceedings have been held in abeyance pending the outcome of the instant appeal. Matter of Spence v New York State Dept. of Agric. & Mkts., 154 AD3d 1234, Decided October 26, 2017; affirmed, Court of Appeal, 2018 NY Slip Op 06071.

** N.B. The federal Hatch Act bars partisan political activities by certain State and municipal employees

The decision is posted on the Internet at:


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