Many elected officials in New York continue to hold outside jobs while in office. This is generally not a major problem if the elected official works for a private employer, but what about a public employer? In other words, can you work for the State of New York while simultaneously holding an elected office? These questions were the subject of a recent Article 78 decision by the New York Court of Appeals, In the Matter of Spence v. New York State Department of Agriculture and Markets.
Court of Appeals Declines to Review State Ban on Agriculture Inspectors Running for County Legislature
The two plaintiffs in this case work for the Department of Agriculture and Markets as dairy product specialists. In this role, the plaintiffs are responsible for “inspecting and rating milk plants and farms in accordance with state and federal law,” according to court records. Like many state agencies, the Department requires employees seek approval before conducting certain “outside activities,” including running for elected office.
In March 2013, one of the plaintiffs filed such a request, as he planned to run for the Lewis County Legislature. The Department approved the request “subject to certain restrictions.” The plaintiff subsequently won his election. A year later, when the plaintiff sought renewal of his outside activities approval, the Department refused. A few months later, the second plaintiff applied for his own approval to run for the legislature in Oneida County. The Department also refused this request. In both cases, the Department said allowing its inspectors to serve as elected officials “would create the appearance of a conflict of interest.” The Department then amended its employee handbook to state that an “employee that holds a position that requires him or her to conduct inspections of regulated parties may not campaign for or hold elected office (e.g. County Legislator).”
The plaintiffs then initiated an Article 78 proceeding, essentially seeking a judicial declaration that the Department's policy violated their First Amendment rights. The New York Courts rejected this argument at every level. In a September 18, 2018, order, five judges of the Court of Appeals affirmed, without comment, a prior ruling of the Appellate Division rejecting the plaintiffs' claims. Two judges dissented, however, holding the First Amendment arguments had merit.
Judge Rowan D. Wilson wrote in his dissenting opinion that the Department's policy was not a “reasonable response” to dealing with potential conflicts of interest. Indeed, the Department could have adopted less-restrictive policies that simply require an employee to recuse themselves from a particular matter, such as an inspection, where there might be a conflict. But as written, Judge Rowan said the Department's policy “impermissibly curtails First Amendment rights” of public employees.
Get Help from a New York Article 78 Proceedings Lawyer
Unfortunately, the majority disagreed with Judge Rowan. So public employees now need to be more cognizant of their own agency's rules regarding outside political activities. If you need advice from an experienced New York employment law attorney regarding your rights as a public employee, contact the Law Offices of White, Nisar & Hilferty, LLP, today.