Supreme Court, Albany County, April 20, 2016

Eric T. Schneiderman, Attorney General, Albany (Louis Jim of counsel), for respondents.

David J. Friedman, Albany, for petitioners.

Petitioners commenced this proceeding seeking three remedies: (1) declaratory relief, permanent injunction relief, and ancillary monetary relief to redress respondents' alleged deprivation{**61 Misc 3d at 339} of petitioners' rights under the First Amendment to the United States Constitution and article I, § 8 of the New York Constitution (causes of action 1, 2, 3, 4, 5, 7, 8); (2) an order declaring the prohibitions arbitrary, capricious, irrational and contrary to CPLR 7803 (causes of action 3, 6, 9); and (3) an order declaring respondents' prohibition against employees who inspect regulated entities from campaigning or holding elected office, as not based on an act from the legislature or a rule promulgated by the New York State Joint Commission on Public Ethics (JCOPE), but ultra vires (without lawful authority) and therefore null and void (cause of action 10).

Respondents answered and moved for summary judgment. Respondents thereafter filed an amended answer and an amended notice of motion to clarify the relief they request: summary judgment under CPLR 3212 on the federal and state constitutional claims and the ultra vires cause of action (causes of action 1, 2, 4, 5, 7, 8, 10) and dismissal of the CPLR article 78 petition (causes of action 3, 6, 9, and to the extent applicable 10). Petitioners oppose the motion, arguing in part, that it was premature because it was filed on the same day as the verified answer. The court finds no merit to this argument as the motion was not served prior to issue being joined, but simultaneously therewith.

Petitioner, Gregory Kulzer, has been employed as a Dairy Products Specialist 1 at the Department of Agriculture and Markets since August 9, 1984. Part of his duties includes the conduction of inspections and ratings of milk plants and farms in accordance with state and federal law (as opposed to any local law or regulation). On March 13, 2013, Kulzer requested approval from the Department to run for local legislator for Lewis County, which was deemed an outside activity. The request was approved with the condition that he follow the Department's policy on outside activities as set forth in the employee's handbook, including that the activity not be done during his normal Department work hours (verified complaint and petition ¶ 31). Kulzer was elected in 2013. In 2014, he again requested permission to run for local office, but was denied. Kulzer appealed the denial to the Commissioner. On January 22, 2015, he received a letter from the General Counsel of the Department informing him that the Commissioner denied his request and that "[t]he Department requests that you provide a copy of your letter of resignation from your unapproved{**61 Misc 3d at 340} outside activity with the Lewis County Legislature within 30 days from the date of this letter or the matter will be referred to the Joint Commission on Public [*2]Ethics" (verified complaint and petition ¶ 42).

On January 27, 2015, Kulzer received a satisfactory job performance evaluation. On February 17, 2015, Kulzer received an email from a senior counsel at JCOPE that informed him that because he is not a policymaker, his agency (and not JCOPE) is authorized to approve his outside activity. On March 19, 2015, he received another notification from the General Counsel at the Department informing him that he would be subject to an interrogation if he failed to provide his letter of resignation from the Lewis County Legislature within 10 calendar days. Kulzer was interrogated on April 29, 2015, when he claimed that it is his constitutional right to hold his position as a county legislator. On May 7, 2015, Kulzer received a notice of discipline seeking termination of his employment.

In support of its motion for summary judgment and in opposition to the verified complaint and petition, respondents provided the court with the affirmation of Chris Cuddeback, an associate counsel and Deputy Ethics Officer at the Department. Mr. Cuddeback explains that a Dairy Products Specialist 1 conducts inspections of milk plants in New York State. When Mr. Kulzer received approval from the Department to seek elective office in Lewis County, he was advised on the restrictions for said approval, to wit: that he could not conduct himself as a legislator during normal work hours and that he was required to follow the Department's policy on outside activities contained within the employee handbook. On April 6, 2015, the Department revised its Employee Policies Handbook by setting forth 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" (verified complaint and petition ¶¶ 105-106, exhibit U).

Mr. Kulzer was sworn in as a Lewis County Legislator in January 2014. In March 2014, Mr. Cuddeback was advised by the Director of the Department's Division of Milk Control and Dairy Services that the plant manger of the Great Lakes Cheese Company in Jefferson County reported that Mr. Kulzer, during an inspection of the plant in Jefferson County, asked the plant manger if he would be interested in a cold storage facility to be built in Lewis County. Mr. Cuddeback called the{**61 Misc 3d at 341} plant manager and confirmed the incident by phone.^[FN1] Mr. Cuddeback spoke with representatives from JCOPE who advised that there was a possible violation of Public Officers Law § 74 and the Department's prohibition on conducting outside activities during work hours. However, since Mr. Kulzer was not a policymaker under the JCOPE regulations, the Department (rather than JCOPE) should respond to the incident. Hence, the Department notified the petitioner that he should resign from the Lewis County Legislature or be subject to termination.

Petitioner Ronald Brown has worked at the Department as a Dairy Specialist 1 since January 13, 1983. Brown has not received an unsatisfactory evaluation during his tenure there. He inspects and rates milk plants and farms in New York. In January 2015, Brown formally requested approval for the outside activity of running for the Oneida County Legislature which was promptly denied because it would create an appearance of a conflict of interest. He appealed to the Commissioner but the appeal was denied, although it was noted that he "is free to vote, express personal opinions on campaign issues, contribute to campaigns, and volunteer or manage a campaign" (verified complaint and petition ¶¶ 85-87). A senior counsel at JCOPE sent him an email [*3]stating that because he was not a policymaker, JCOPE was not in a position to approve his outside activity (verified complaint and petition ¶ 81). Brown has complied with the denial by no longer holding himself out as a 2015 candidate for a legislative seat in Oneida County.

Petitioner PEF represents 390 members of the Department, 26 of which are Dairy Products Specialists 1. PEF also represents other employees who are required to inspect regulated entities as part of their jobs at the Department, including food inspectors. PEF members are affected by all of respondents' employee policies.

I. Summary Judgment

Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The court's function in a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (Barr v{**61 Misc 3d at 342} County of Albany, 50 NY2d 247 [1980]). The proponent of a motion for summary judgment must make a prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The evidentiary proof submitted with the motion must be in admissible form (Zuckerman v City of New York, 49 NY2d 557 [1980]). An attorney's affirmation, in support of a motion for summary judgment, that is not based upon personal knowledge is of no probative or evidentiary significance (Warrington v Ryder Truck Rental, Inc., 35 AD3d 455 [2d Dept 2006]).

Once the proponent of a motion for summary judgment has set forth such a prima facie entitlement to judgment as a matter of law, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d at 562). However, the rule for defeating a motion for summary judgment is more flexible. The opponent may be permitted to demonstrate an acceptable excuse for the failure to tender the proof in admissible form (Zuckerman v City of New York, 49 NY2d 557 [1980], citing Phillips v Kantor & Co., 31 NY2d 307 [1972], and Indig v Finkelstein, 23 NY2d 728 [1968]). Hearsay evidence may be considered in opposition to a motion for summary judgment (Landisi v Beacon Community Dev. Agency, 180 AD2d 1000 [3d Dept 1992]).

[1] In the present case, respondents have established a prima facie entitlement to judgment as a matter of law. A right to associate and participate in politics is not absolute, and federal employees' political activities could be constitutionally prohibited (see Civil Service Comm'n v Letter Carriers, 413 US 548 [1973]). In the companion case, a state statute that restricted civil servants' political activities was held to be valid (see Broadrick v Oklahoma, 413 US 601 [1973]). A rational basis analysis, rather than strict scrutiny, is utilized to determine whether a person's rights to participate in politics and to serve as an elected official have survived review under the First Amendment (see Fletcher v Marino, 882 F2d 605 [2d Cir 1989]).

The act of running for elective public office is a form of speech protected by the First [*4]Amendment (Castine v Zurlo, 756 F3d {**61 Misc 3d at 343} 171 [2d Cir 2014]). In evaluating an employee's rights under the First Amendment, courts must balance the interests of the citizen and the interests of the State as an employer in promoting the efficiency of the public services it performs through its employees. Under a test developed in Pickering v Board of Ed. of Township High School Dist. 205, Will Cty. (391 US 563 [1968]),

" '[a] government employer may take an adverse employment action against a public employee for speech on matters of public concern if: (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.' " (Castine v Zurlo, 756 F3d 171, 175 [2d Cir 2014], quoting Anemone v Metropolitan Transp. Auth., 629 F3d 97, 115 [2d Cir 2011], quoting Johnson v Ganim, 342 F3d 105, 114 [2d Cir 2003].)

"If it is determined that the employee's expressive conduct as a citizen involved a matter of public concern, the government bears the burden of justifying its adverse employment action. Justifications may include . . . avoiding having the judgment and professionalism of the agency brought into serious disrepute." (Piscottano v Murphy, 511 F3d 247, 271 [2d Cir 2007] [citations omitted], citing Waters v Churchill, 511 US 661, 675 [1994].)^[FN2]

Mr. Cuddeback's affirmation in support of the respondents' motion for summary judgment contains hearsay. However, even without such allegations contained therein, it was reasonable for the Department to expect that petitioners' or any employees' candidacy, when those employees inspect and regulate an industry on behalf of the Department, could conflict with policies of the Department. Potential termination for an employee who refuses to resign the conflicting outside work or office reduces the risk of impropriety within the Department. The interest to reduce potential unethical behavior outweighs petitioners' interest in pursuing or holding elective office.

The government employer may take action through either a regulation promulgated through the State Administrative Procedure{**61 Misc 3d at 344} Act or an informal rule, for example a directive, that is not promulgated through such act (see Boyle v Kirwin, 39 AD2d 993 [3d Dept 1972]; Matter of Taylor v New York State Dept. of Correctional Servs., 248 AD2d 799 [3d Dept 1998]).

The court concludes that the Department herein was justified in its political activities prohibition, published through a non-State Administrative Procedure Act process, as it had legitimate concerns about the judgment and professionalism of the agency, particularly whether a non-departmental agenda, that would disrupt the functioning and integrity of the Department, is pursued during work hours. Respondents' motion for summary judgment is granted against all petitioners.

II. Article 78

In an article 78 proceeding, "the proper test to be applied is whether there is a rational basis for the administrative order. The courts cannot interfere unless the action complained of is arbitrary and capricious" (Matter of First Dist. Dental Socy. v Sencer, 116 Misc 2d 528, 530 [Sup Ct, NY County 1982]). The test for whether an action is arbitrary and capricious involves whether the particular action should have been taken or is justified and whether such action is [*5]without foundation in fact (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 [1974]). "[C]ourts have traditionally been reluctant to interfere with the determinations of administrative bodies where they are made in good faith and with some measure of justification" (First Dist. Dental Socy., 116 Misc 2d at 531).

[2] Here, the main issue is whether the determination upheld by the Commissioner to deny petitioners' requests to seek future local elective office, by a rule that was not promulgated under the State Administrative Procedure Act, was arbitrary and capricious. In regard to petitioner Kulzer, there is a second issue whether the determination by the Deputy Commissioner to terminate his employment at the agency, if he did not resign from his present local office, was arbitrary and capricious. The court holds that such actions were justified based upon the reasons outlined above. The Department has a viable interest to prohibit certain political activity for its employees who regulate and inspect an industry. Therefore, the hearsay affirmation of Mr. Cuddeback is of no consequence. The Department may protect itself from the sense or the appearance of impropriety by its employees while working on behalf of respondents.

{**61 Misc 3d at 345}[3] Further, the adoption of a rule by a non-State Administrative Procedure Act process has been upheld where a directive, which is essentially the same as a rule in an employees' handbook, concerns the respondents' internal management and does not directly affect the public (see Matter of Taylor v New York State Dept. of Correctional Servs., 248 AD2d 799 [3d Dept 1998]). Here, the curtailment of employees' actions is an internal management decision that does not affect the public.

Finally, the court notes that although this action was commenced after a Commissioner's determination and not a hearing, this court has jurisdiction to resolve the matter (see Matter of Gilman v New York State Div. of Hous. & Community Renewal, 99 NY2d 144 [2002]).

Based upon the foregoing, it is hereby ordered that respondents' motion for summary judgment on the federal and state constitutional claims and the ultra vires cause of action (causes of action 1, 2, 4, 5, 7, 8, 10) is granted and said causes of action are dismissed; and it is further ordered that respondents' motion to dismiss the article 78 proceeding on the remaining causes of action (causes of action 3, 6, 9, and to the extent applicable 10) is also granted; and it is further ordered that the petition is dismissed in its entirety.