Policy-maker's terminated after spouse sues State alleges violation of a Constitutional right to associate with others in intimate relationships

Policy-maker's terminated after spouse sues State alleges violation of a Constitutional right to associate with others in intimate relationships
Adler v Pataki, 2nd Circ., 185 F.3d 35

Although the Second Circuit U.S. Court of Appeals has allowed a public employer to terminate a “policy-maker” solely for reasons of patronage, the Adler decision indicates that there is at least one possible exception to this general rule -- when the termination is alleged to involve “mixed-motives.” This case involved allegations that the policy-maker’s termination was not based on political considerations but was in retaliation because the policy-maker’s spouse had sued the State.

Alan Adler, a former deputy counsel with the State’s Office of Mental Retardation and Developmental Disabilities [OMRDD], sued the State, alleging that his First Amendment right of intimate association was violated because OMRDD terminated him because his wife had filed a lawsuit against state officials, including the State Attorney General.

Adler’s wife, a former Assistant Attorney General, was terminated from her position. She commenced a wrongful termination action against the Attorney General alleging that she was fired because she was not a Republican. She filed her lawsuit about a year before Adler was dismissed by OMRDD.

The Circuit Court said that the nature and extent of the right of intimate association is “hardly clear” but concluded that in Roberts v United States Jaycees, 468 U.S. 609, the U.S. Supreme Court has recognized such a right of association with two distinct components:

1. An individual’s right to associate with others in intimate relationships; and

2. A right to associate with others for purposes of engaging in activities traditionally protected by the First Amendment, such as speech and other expressive conduct.

The Circuit Court said that “[i]f simple vindictiveness against the plaintiff on account of his wife’s lawsuit was the defendants’ true motive, a First Amendment violation would be established” [emphasis added], overruling Northern District Judge Frederick J. Scullin Jr.

Judge Scullin had held that Adler was a policy-maker, and therefore he did not have any First Amendment protection against termination solely because of his political affiliation.

In addition, Judge Scullin said that to the extent that Adler’s claim was based on alleged mixed motives -- his political affiliation and his wife’s initiation of litigation against the state -- such an action “was foreclosed” by the Second Circuit’s decision in McEvoy v Spencer, 124 F.3d 92.”

But the three-judge Second Circuit panel said the district judge misinterpreted McEvoy. Although a policy-maker cannot claim First Amendment protection if he or she is dismissed because of political affiliation, “a policy-maker may not be discharged for such reasons as race, sex, or national origin.” Consistent with that view, the court ruled that:

1. Adler could proceed with his claim that he was fired solely in retaliation for his wife’s lawsuit, and not at all for reasons of political patronage.

2. Since Adler was a policy-maker, the State will prevail only if it can “ultimately demonstrate that he was in fact fired solely for reasons of political patronage”.

3. “To the extent that the [State] acted with a mixed motive, i.e., if they fired [Adler] in retaliation for his wife’s activities and for reasons of political patronage,” the McEvoy decision does not control and that the State has the burden of demonstrating that they would have removed the Adler from his position even if his wife had not been involved in litigation against the State.

The lesson here is that where a policy-maker was dismissed because of his or her political affiliation, the federal courts will uphold the termination if there is proof that the separation was the solely based on patronage considerations. But where “mixed-motives” are present, the public employer must prove that the policy-maker would have been terminated even if there were “no mix to the motive” for the termination to survive judicial scrutiny.

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Probationary termination

Probationary termination
Green v Board of Education, 263 AD2d 385

Verna Green, a New York City probationary teacher, was terminated from her position. She sued, seeking reinstatement to her former position.

The Appellate Division sustained a lower court’s dismissal of Green’s petition. It pointed out that Green, as a probationary employee, could be terminated without a statement of reasons provided that the termination was not made in bad faith, was not made in violation of statutory or decisional law, or made for unconstitutional or illegal reasons.

Green had the burden of establishing such bad faith or illegal reasons were the basis for her termination. On this issue, the Appellate Division commented that “conclusory allegations of bad faith are insufficient to meet this burden or to warrant a hearing.”
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Means used to place candidates with tied scores on eligible list may impact on seniority for the purposes of layoff

Means used to place candidates with tied scores on eligible list may impact on seniority for the purposes of layoff
Fiffe v Cohoes Civil Service Comm., 262 AD2d 762, Motion for leave to appeal denied, 93 NY2d 819

Thomas Fiffe was one of seven candidates appointed to firefighter positions in Cohoes, all effective July 25, 1994. He was one of four candidates who had an examination score of 85 and was ranked fifth on the eligible list. But the Cohoes Civil Service Commission later revised this ranking and placed Fiffe seventh on the list. After losing his job in a layoff, Fiffe claimed this change was arbitrary and capricious, and that he had greater seniority than retained employees. The Appellate Division found in favor of the Commission, sustaining its action revising the list as rational and declined to disturb it.

The Commission claimed its original ranking was in error. It explained that at the time Fiffe applied for the examination, its seniority policy for civil service purposes differentiated applicants with the same examination score by ranking the applicants according to the date of receipt of each application and fee. As the result of an error, said the Commission, when the original eligibility list was issued, the candidates with tie scores were randomly placed on the list as among themselves rather than in the order of their application/fee date. In January 1997 -- 11 months before the layoff -- the Commission revised the eligible list “to reflect the correct date of application in accordance with its established policy.”

Fiffe contending that the issuance of a revised eligible list, and the resulting change in his rank and seniority, was arbitrary and capricious. He asked the court to change the date of his application to April 1, 1993. This, of course, would give him greater seniority for the purposes of layoff.

Fiffe argued that the April 1 date should be used because that was the date on which he had originally submitted his application for examination. His application was initially rejected by the Commission because of Fiffe’s date of birth but it was subsequently accepted and processed. The Commission used the later date rather than April 1, when determining his rank on the eligible list.

The Appellate Division sustained the Commission’s action, reflecting the fact that a local civil service commission can use any rational method of ranking to break scoring ties on eligible lists, as long as it is consistent in applying its rule.

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Union president required to comply with a county ethics commission subpoena concerning union's employment of former county worker

Union president required to comply with a county ethics commission subpoena concerning union's employment of former county worker

The Suffolk County Ethics Commission issued subpoena* to compel Cheryl A. Felice, the President of a Suffolk County municipal employees union, to appear before it and give testimony relative to its investigation of services provided by a former county employee to the union on or after December of 2007.

Felice resisted the Committee’s efforts and the Commission filed a petition seeking a court order directing Felice to comply with its subpoena and appear before it with the relevant documents.

According to the decision, underlying Committee’s investigation was a sworn complaint alleging possible violations of Article XXX (Code of Ethics) of the Suffolk County Administrative Code** by a former county employee who was retained by the Felice's union of municipal employees as a consultant, strategist, employee or independent contractor.

In opposing the Committee’s action, the union argued:

1. The provisions in the Code of Ethics relied upon by the Commission are not applicable to the former county employee whom the union retained to assist it in its labor relations with the County.

2. The Commission failed to demonstrate that the subpoena is an appropriate exercise of the Commission's discretion.

3. The subpoena was procedurally deficient in that it does not appear to have been issued upon the unanimous vote of the members of the Commission as required by the Ethics Code.

4. Disclosure of the communications and documentation called for by the subpoena violates the "labor union leader privilege".

Judge Whelan rejected all of the union’s arguments and granted the Commission’s petition noting that “It is only where the subpoena recipient demonstrates that the subpoena is not within the authority of the issuing agency or that its scope may be fairly characterized as irrelevant, illegitimate or oppressive will the recipient's challenge be sustained. In this instance, said the court, Felice has not met her burden in this regard.

Rather, said the court, the Commission has met its initial burden of demonstrating its authority for engaging in the investigation and issuance of the subject subpoena and that the materials sought have a reasonable relationship to the subject matter under investigation as well as to the public purpose to be achieved and that the investigation has a sufficient factual predicate.

As to “the targeted former employee” not being not subject to the Committee’s reach, the issue of whether there has been a violation of the Ethic Code provision is a matter for the Commission to determine and any challenge to its ultimate determination and any challenges to the Commission’s authority are premature and beyond the scope of this “special proceeding commenced pursuant to CPLR 2308.”

Addressing Felice’s claim that subpoena was issued pursuant to a unanimous vote of the Commission, Judge Whelan observed that “The record contains due proof that the subpoena was duly authorized by the unanimous vote of three members of the Ethics Commission as required by §30-6(b) of the Ethics Code.”

Finally Judge Whelan rejected Felice’s argument that “labor union leader privilege” insulates a union's leader from disclosing communications and documents that are the target of the Commission’s subpoena as they concern union strategies, proposals, alliances and positions viz a viz the County as it is currently involved in collective bargaining negotiations with the union.

The court said that “The expansive evidentiary privilege for labor union leaders advanced by [Felice], which would immunize from disclosure, communications among union leaders and its paid staff regarding collective bargaining tactics, strategies and advice provided by such staff and other nonunion members has not been shown to be necessary to avoid the impairment of any fundamental rights of [Felice], her union, its members or its retained staff.”

In addition, Judge Whelan said that Felice did not show “that harm would inure to the public interest by reason of the disclosure of the items called for by the subpoena and that such harm far outweighs the interests of the [Commission] who seeks such disclosure.”

* The subpoena also required Felice “to produce any and all records and correspondence in her possession or in the possession of the union, by and between [Felice], other union officials and the former county employee, relative to the union's retention of the former county employee.”

** See §§A 30-4 and A 30-5

The decision, Matter of Suffolk County Ethics Commn. (Felice), 2010 NY Slip Op 20418, Decided on October 9, 2010, Supreme Court, Suffolk County, Judge Thomas F. Whelan, is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20418.htm
NYPPL

Neglecting to advise a party of the availability of an administrative appeal defeats a failure to exhaust administrative remedies defense

Neglecting to advise a party of the availability of an administrative appeal defeats a failure to exhaust administrative remedies defense

Julie Purcell initiated an Article 78 proceeding in an effort to compel the Jefferson County District Attorney to comply with her request pursuant to the Freedom of Information Law ([FOIL] Public Officers Law art 6) for documents relating to a criminal matter in which she was the complainant.

Supreme Court denied the District Attorney’s motion to dismiss Purcell’s petition on the grounds that she had failed to exhaust her administrative remedies.

The Appellate Division agreed, commenting that because the District Attorney’s office failed to advise Purcell of the availability of an administrative appeal of its refusal to supply the documents she had requested, “[the District Attorney] cannot be heard to complain that [Purcell] failed to exhaust [her] administrative remedies."

The Appellate Division also said that the award of attorney's fees by Supreme Court was appropriate as the District Attorney failed to respond to Purcell’s request or her appeal “within the statutory time" limits (see Pubic Officers Law §89[4][c][ii]). Under the circumstances, the Appellate Division concluded that Supreme Court did not abuse its discretion in awarding attorney's fees and costs in this action.

The decision, Matter of Purcell v Jefferson County Dist. Attorney, 2010 NY Slip Op 06882, Decided on October 1, 2010, Appellate Division, Fourth Department, is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06882.htm
NYPPL