Concerning politically motivated termination

Concerning politically motivated termination

Martin Gordon, et al., v County of Rockland, 110 F.3d 886

Allegations that an employee was dismissed because of political affiliation -- or lack thereof -- has generated many lawsuits.

The Gordon case is instructive because it sets out the views of the U.S. Court of Appeals for the Second Circuit, which includes New York State, concerning the standards to be applied in determining if a politically motivated termination violates the constitutional rights of the individual. 

The case arose after Rockland County fired three Assistant County Attorneys -- S. Martin Gordon, Eric Ole Thorsen, and Joel J. Flick. Alleging that their terminations violated their First Amendment rights to political affiliation, the three sued in an effort to win reinstatement to their former positions. A U.S. District Court jury ruled in their favor and the County appealed.

The U.S. Circuit Court of Appeals found an error in the lower court's procedure and initiated a de novo review of the constitutionality of the dismissals. A review de novo is, in effect, "a new trial" of the matter.

The key issue was whether or not the Rockland County attorneys' were sufficiently non-political to entitle them to First Amendment protection from partisan political termination.

Courts, including the U.S. Supreme Court, have ruled that certain policy-making and confidential employees are exempt from First Amendment protection and can be lawfully fired because of their political beliefs.

Two seminal cases on the legality of politically motivated dismissals are:

1. Elrod v Burns, 427 US 347. In Elrod the U.S. Supreme Court concluded that the politically motivated dismissals of employees in the Cook County (Illinois) Sheriff's Office was an unconstitutional interference with the employees' First Amendment freedoms of political belief and political association because the individuals terminated were not incumbents serving in "policymaking positions;" and

2. Branti v Finkel, 445 US 507. The high court said that the exemption allowing politically motivated dismissals extended to confidential employees as well as policymakers. But because Branti was neither a policymaker nor a confidential employee, he was entitled to First Amendment protection. The high court said that in evaluating whether it is permissible to dismiss an employee on the basis of political affiliation, "The focus ... should be not on the policymaking aspect of a plaintiff's employment, but rather on whether "party affiliation is an appropriate requirement" for effective job performance.

In the Rockland case, the Circuit Court of Appeals examined the nature of the attorneys' jobs and whether or not party affiliation was an appropriate requirement for job performance.

The Court considered whether its assessment of job duties should be based on the men's written job descriptions or the duties actually performed. Citing several supporting decisions, the Circuit Court said the assessment should be based on the power vested in the individual by law and the power that is inherent in the office. In other words, the job description is what counts in determining whether an employee has First Amendment protection against politically motivated dismissals.

Gordon specialized in real property law, and handled Sewer Commission affairs; Thorsen provided general legal services to the Highway Department and gave legal advice to the County's Planning and Parks Agencies; and Flick was an attorney in the Office of Community Development who advised municipal governments within the County as to whether their actions were in compliance with federal law.

The Court found all three positions encompassed serving as a legal advisor to a particular segment of county government, and representing the County in that capacity. This suggested they were policy-makers. The Court also analyzed whether the jobs were inherently political, using these questions as tests:

a. Is there rational connection between shared ideology and job performance?

b. Is the employee in an exempt position and thus not subject to "civil service protection" under Section 75 of the Civil Service Law? [The Court cautioned that it does not presume employees are not entitled to First Amendment protection just because they are exempt from civil service protection. Also, it should be remembered that Section 75 covers many public employees serving in exempt or noncompetitive class positions who are honorably discharged veterans who served in time of war or who are certified as "exempt volunteer firefighters."]

c. Does the individual exercise technical competence or expertise that permits them to make independent judgment on policy matters?

d. Does the individual control or supervise others?

e. Is the individual authorized to speak in the name of policymakers?

f. Is the individual is perceived as a policymaker by the public?

g. Does the individual influence government programs?

h. Does the individual have contact with elected officials?

i. Is the individual responsive to partisan politics and political leaders?

The Court said a factor supporting a ruling that the three were protected by the First Amendment was that each was not in charge of a large group of employees. But, the Court also noted, Gordon, Thorsen, and Flick all had technical competence or expertise and each was a consultant to a specific policymaking board. Also influencing the decision was the Court's view that "the Legislature, which has perhaps the best knowledge of the responsibilities involved in the positions it created, designated these positions both as 'policymaking' and as exempt from civil service status." Of primary importance to the Court in resolving the issue, however, the fact that each of the three attorneys was empowered to act and speak on behalf of a policymaker, especially an elected official.

Another aspect of the Rockland County case concerned the fact that the County Attorney was not elected but rather appointed by the Legislature, which is itself elected.

In the words of the Court, "all three plaintiffs advised the Legislature or Commissions set up by the Legislature or County Executive, both of which are elected." The Court concluded that each of the attorney's "advice to and representation of top policymaking officials in the County" justified their dismissal for political reasons.

Why? The Court said that "it is difficult to fathom how such responsibilities can be undertaken and done well without their "political or social philosophy [making] a difference in the implementation of programs."

Although the three attorneys contended that did not make policy, the Court concluded that this factor was outweighed by the evidence that they can act in the stead of the County Attorney. Further, the Court said that their claim that they "only gave legal advice" had been earlier rejected as justification for an employee coming within the Branti exception, citing the Third Circuit's ruling in Ness v Marshall, 660 F2d 517.

In Ness the Circuit Court decided that the positions of City Solicitor and Assistant City Solicitor were not protected by the First Amendment despite the solicitors' argument that they performed only "purely technical legal work." The Court said that the duties the solicitors could perform -- "rendering legal opinions, drafting ordinances, [and] negotiating contracts -- define a position for which party affiliation is an appropriate requirement."

A fair conclusion, according the Gordon ruling, is that these Assistant County Attorneys, "because of the discretion with which they are charged, and because of their authority to act on behalf of the County, are politically accountable to the Legislature and the County Executive such that their loyalty helps ensure that the mandate of the electorate is effectively carried out." The Court reversed the jury's decision in Gordon, Thorsen, and Flick favor, holding the three exempt from First Amendment protection against politically motivated dismissal.

Out of title work

Out of title work

Rausch v Pellegrini, Appellate Division, 237 A.D.2d 771

Muzzillo v Mt. Vernon Civil Service Commission, 238 A.D.2d 424

Muzzillo v Mt. Vernon City School District, 238 A.D.2d 425

From time to time an employee will complain that he or she is performing out-of-title work. Typically an individual who is working out-of-title, except in situations constituting a "temporary emergency," must be compensated at the appropriate salary or grade level or the out-of-title work assignment discontinued. The Rausch and Muzzillo cases involve allegations of out-of-title work.

The Rausch Case

To handle out-of-title work complaints expeditiously, the collective bargaining agreement between the State of New York and the Civil Service Employees Association includes a grievance procedure for resolving out-of-title work complaints.

Henry Rausch, an employee of the State Department of Correctional Services [DCS], complained that although he was being paid the salary of a Correctional Facility Food Administrator I [FFA I], as the result of a reorganization of DCS's food service system he was actually performing the duties of an FFA II. He filed an out-of-title work grievance, contending that he should be paid at the salary grade of the higher level position.

Rausch's grievance was ultimately rejected by the Governor's Office of Employee Relations on the grounds that his duties had been modified in connection with the reorganization of the food service operations in Correctional Services. He brought an Article 78 action challenging the administrative decision denying his grievance.

A State Supreme Court judge annulled the administrative determination, holding that Rausch had been required to perform out-of-title duties and the State, in turn, appealed.

Commenting that assignment of out-of-title work, other than on an emergency basis, is clearly prohibited by the Civil Service Law Section 61.2, the Appellate Division affirmed the lower court's ruling.

Section 61.2 provides that "no person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position" in accordance with the Civil Service Law and the rules adopted thereunder.

Although the State contended that Rausch's duties had been modified and thus he could not be viewed as working out-of-title, the Appellate Division essentially found that Rausch was performing the duties that had been the responsibility of his former supervisor, a Correction Facility Food Administrator II, [FFA II].

The decision notes that while an FFA I is responsible for food service operations for an assigned shift, Rausch was made responsible for all food service operations at the Greene Correctional Facility, duties typically those of an FFA II, after his former supervisor was reassigned to another facility in 1991.

The Court concluded that the extension of Rausch's duties to encompass responsibility for the entire food service operation at the facility, i.e., responsibility for all food service on all shifts, seven days a week, constituted out-of-title work.

The Muzzillo Case

Muzzillo and three co-workers, employed as stenographers by the Mt. Vernon City School District, complained that they were performing out-of-title work. The Mt. Vernon Civil Service Commission agreed, ruling that the duties the four were assigned justified the reclassification of their respective positions to senior stenographer.

When the District declined to reclassify their respective positions, Muzzillo and her co-workers sued.

In one action Muzzillo sought a court order directing the District to comply with the Commission's determination and reclassify their positions to Senior Stenographer or, in the alternative, to desist from requiring them to perform out-of-title work. In a second action, Muzzillo attempted to obtain a court order compelling the Commission to "enforce its determination" regarding the reclassification of their respective positions.

The Appellate Division sustained lower court rulings dismissing the petitions in both actions.

As to their law suit against the District, the Appellate Division found that the School Board, by resolution, had directed the District "to cease and desist from using [the stenographers] to perform duties inappropriate to their title." This would appear to have provided appropriate redress concerning the issue of District's assigning "out-of-title work" to the stenographers.

However, even if the Board's action did not resolve the matter to the satisfaction of the four, the Appellate Division ruled that their complaint was properly dismissed by the lower court. The Appellate Division commented that the four had failed to exhaust their administrative remedy, noting that they had not "availed themselves of the grievance procedure set forth in their collective bargaining agreement."

As to the action brought against the Civil Service Commission, the Appellate Division ruled that the School Board had acted appropriately by adopting a resolution directing the District to refrain from having the four stenographers perform out-of-title work.

The Appellate Division said that Muzzillo failed to show that the Commission is under a legal duty to enforce compliance with its determination that the four were performing senior stenographer duties. In other words, the Commission did not have any obligation to require the District to reclassify the positions merely because it found that the incumbents had been assigned to perform out-of-title work.

Although the School Board could have elected to provide for such reclassification, the Court action signals its view that discontinuing the assignment of out-of-title work is an appropriate alternative to reclassification of the positions.

The Appellate Division commented that although the Commission had urged the Board to reclassify their positions to senior stenographer, it was not required to compel the District to do so. In this regard, the Commission could exercise its discretion as to the action it would take to resolve the matter. In other words, the Commission had no legal duty to compel the reclassification of the positions in question and the fact that the School Board had acted to bar future out-of-title work constituted an appropriate resolution of the complaint.

On another point, Muzzillo had cited Sections 100.1.a and 102.3 of the Civil Service Law in support of her efforts to have the Commission act. Section 100.1.a deals with the certification of payrolls and bars the payment of salary or compensation were the responsible commission determines that an individual has been employed in violation of law. Section 102.3 authorizes the appropriate commission to sue to enjoin "any violation of the Civil Service Law."

Assuming, without deciding, that these provisions are relevant in these cases, apparently the Appellate Division decided that the action by School Board to prohibit further out-of-title work by the stenographers resolved the underlying issues involved.

Public policy considerations affecting arbitration

Public policy considerations affecting arbitration

Sullivan County v Sullivan County Employees Asso., 235 A.D.2d 748

One of the issues in this appeal heard by the Appellate Division concerned Sullivan County's claim that the arbitration of a grievance as demanded by the Sullivan County Employees Association violated of "public policy considerations" and should be stayed.

The Association had demanded arbitration when the County denied a grievance based on the Association's claim that its action modifying a Taylor Law contract with another collective bargaining unit had triggered the "parity clause" in its agreement. The "parity clause" provided that if another bargaining unit negotiated a salary increase, those increases would be operative for employees covered by the agreement.

The Appellate Division said that to invoke a violation of public policy as justification for staying arbitration, "the violation must amount to the equivalent of a gross illegality." Although Sullivan County claimed that "parity clauses" were illegal, the Appellate Division noted that "such clauses are not per se invalid but require a case-by-case analysis."

The Courts indicated that the matter was not yet ripe for judicial consideration, commenting that if "the arbitrator's interpretation of the agreement may offend public policy, such a potential does not mandate a stay of arbitration." Rather, said the Court, if that turns out to be the case, the remedy is vacatur (reversal) of the award.

Law enforcement personnel may be prohibited from associating with persons suspected of illegal activities.

Law enforcement personnel may be prohibited from associating with persons suspected of illegal activities.

Matter of Matter of Hastings v City of Sherrill, 2011 NY Slip Op 09484, Appellate Division, Fourth Department

The City of Sherrill’s Chief of Police, James T. Hastings, was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that he was involved with "person(s) notoriously suspected of illegal activities … outside [the Chief’s] official duties." The Chief was found guilty of the charges and was terminated from his position.

The person suspected of “illegal activities” with whom the Chief was “involved” was the Chief’s 29-year-old son.

The Appellate Division, sustaining the City’s determination, ruled that the departmental regulations that the Chief was found to have violated “did not impermissibly interfere with his constitutionally protected right of intimate association.” Citing Morrisette v Dilworth, 59 NY2d 449, the court said that "[I]t is well established that it is within the State's power to regulate the conduct of its police officers even when that conduct involves the exercise of a constitutionally protected right."

The court also commented that “in light of the age of Chief’s son and the absence of any evidence that his son was mentally incapacitated, this case does not involve the constitutionally protected interest in custodial relationships between parents and their children.”

Other decisions in which a police officer was served with administrative disciplinary charges alleging he or she had  associated with persons alleged to have been engaged in criminal activities include Brinson v Safir, 255 AD2d 247, leave to appeal denied 93 NY2d 805; Richardson v Safir, 258 AD2d 328 and Delgado v Kerik, 294 A.D.2d 227.

The Hastings decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09484.htm

Law enforcement personnel may be prohibited from associating with persons suspected of illegal activities.

Law enforcement personnel may be prohibited from associating with persons suspected of illegal activities.

Matter of Matter of Hastings v City of Sherrill, 90 AD3 1586

The City of Sherrill’s Chief of Police, James T. Hastings, was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that he was involved with "person(s) notoriously suspected of illegal activities … outside [the Chief’s] official duties." The Chief was found guilty of the charges and was terminated from his position.

The person suspected of “illegal activities” with whom the Chief was “involved” was the Chief’s 29-year-old son.

The Appellate Division, sustaining the City’s determination, ruled that the departmental regulations that the Chief was found to have violated “did not impermissibly interfere with his constitutionally protected right of intimate association.” Citing Morrisette v Dilworth, 59 NY2d 449, the court said that "[I]t is well established that it is within the State's power to regulate the conduct of its police officers even when that conduct involves the exercise of a constitutionally protected right."

The court also commented that “in light of the age of Chief’s son and the absence of any evidence that his son was mentally incapacitated, this case does not involve the constitutionally protected interest in custodial relationships between parents and their children.”

Other decisions in which a police officer was served with administrative disciplinary charges alleging he or she had  associated with persons alleged to have been engaged in criminal activities include Brinson v Safir, 255 AD2d 247, leave to appeal denied 93 NY2d 805; Richardson v Safir, 258 AD2d 328 and Delgado v Kerik, 294 A.D.2d 227.

The Hastings decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09484.htm