2.109 - 4. Constitutional Protections Against Discrimination For Political Activity Or Affiliation

• Jurisdiction: New York

4. Constitutional Protections Against Discrimination for Political Activity or Affiliation

In Elrod v. Burns¹³²⁴ and Branti v. Finkel,¹³²⁵ the U.S. Supreme Court determined that the First Amendment, as a general rule, forbids government officials from discharging or threatening to discharge public employees for not supporting the political party in power. This First Amendment principle was extended in Rutan v. Republican Party,¹³²⁶ to prohibit the denial of promotions, transfers and recall of public employees, based on their support of a political party in power. However, the Supreme Court has held that the First Amendment does not prohibit the use of political affiliation as an employment criterion for policy makers where party affiliation is an appropriate requirement for the effective performance of the public office involved.¹³²⁷

The Second Circuit has articulated several factors that it will consider in determining whether a political affiliation constitutes an appropriate requirement for a particular position including whether the employee: (1) is exempted from civil service; (2) has some type of specialized competence; (3) has supervisory responsibilities; (4) is authorized to speak in the name of policy makers; (5) is perceived as a policy maker; (6) has influence over government programs and policies; (7) has contact with elected officials; and (8) is responsive to partisan politics and political leaders.¹³²⁸ In Morin v. Tormey,¹³²⁹ the Second Circuit ruled that the Chief Clerk of the Onondaga County Family Court is not a policy maker despite her regular interaction with members of the judiciary and her lack of civil service tenure protections. It reasoned that her primary responsibility was to manage court operations; activity that did not involve policy making because she supervised only two employees, did not have hiring authority, did not speak on behalf of other policy makers, did not influence government programs and was not responsive to partisan politics. Finally, the court emphasized that the evidence did not establish that political affiliation or ideology was necessary for her to perform her duties effectively.

In Mt. Healthy City School District Board of Education v. Doyle,¹³³⁰ the Supreme Court outlined the burden of proof in a mixed-motive case brought by a public employee challenging his termination under the First Amendment. The Court held that the employee has the initial burden of showing that the conduct was constitutionally protected and that the conduct was a substantial or motivating factor in the decision to terminate. The burden then shifts to the public employer to demonstrate that it would have reached the same decision regarding the termination in the absence of the protected activity.

In O’Hare Truck Service v. City of Northlake,¹³³¹ the Supreme Court extended the holdings in Elrod and Branti, determining that a private governmental contractor stated a cause of action by alleging political retaliation for failing to support the successful political candidate. Since 1965, the contractor had been on a rotation list used by the city police department for towing. In 1993, the company’s owner refused a request from the incumbent mayor’s campaign committee for a campaign contribution. Instead, the owner supported the opposing candidate financially and by other means. After the incumbent was reelected, the company was eliminated from the rotation list.

In Gordon v. County of Rockland,¹³³² the Second Circuit ruled that the issue of whether a particular position is a policy-making position is a question of constitutional interpretation to be determined by the court and not a jury. The court vacated a jury verdict in favor of the plaintiffs, concluding that the termination of three Rockland County assistant county attorneys did not violate the First Amendment due to the inherent powers, duties and responsibilities of the positions.¹³³³ Similarly, the Second Circuit has ruled that the termination of two county assistant social services attorneys did not violate the First Amendment in light of the inherent duties of the position, which may have required them “to be privy to confidential information held by the Commissioner and the Department.”¹³³⁴ By applying the factors set forth in Vezzetti v. Pellegrini,¹³³⁵ the court concluded that the assistant social services attorneys could influence government programs and be responsive to partisan politics and that their positions required some technical competence or expertise. By contrast, in Snowden v. Solomon,¹³³⁶ a United States District Court applied those factors in rejecting a claim by the Village of Monticello that plaintiff was a “policymaker” because of his role as Code Enforcement Officer and therefore was not entitled to First Amendment protection from retaliation based on political association. ¹³³⁷

In a federal lawsuit brought by two former attorneys with the New York State Department of Health, who had challenged their patronage-based termination, summary judgment was affirmed, despite the defendant’s acknowledgment that the plaintiffs were randomly dismissed to “make room” for political appointees.¹³³⁸ The Second Circuit determined that the positions of associate and assistant counsels with the department of health were not protected against patronage dismissals because there was a rational connection between shared ideology and job performance. In reaching this conclusion, the court noted that (1) the positions were exempt from civil service protections, (2) the successful prosecution of professional medical misconduct charges requires considerable technical competence and expertise, and (3) the attorneys represented the state in medical misconduct hearings and therefore reflected views of policy makers.¹³³⁹

In Danahy v. Buscaglia,¹³⁴⁰ a First Amendment complaint brought by various investigators employed by the New York State Department of Law, Medicaid Fraud Control Unit, was dismissed based on the doctrine of...