(CN) – Triggering dissents from two judges, New York’s highest court sided Tuesday with a state agency that changed its policy to bar inspectors from seeking or holding elected office.
The New York Department of Agriculture and Markets adopted the “political activities” policy in 2015 following the election of dairy inspector Gregory Kulzer to local office in Lewis County.
Though the department had approved an outside-activities request by Kulzer in 2013 when he sought to run, Kulzer’s renewal of that request the following year led the department to conclude that his dual roles constituted a conflict of interest.
Specifically, the department’s new policy says: “any 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).”
Supported by the Public Employees Federation, AFL-CIO, Kulzer challenged the department’s policy change as unconstitutional. To date that challenge has been unsuccessful.
Though he struck out with the New York Court of Appeals on Wednesday, the unsigned order contains two dissents championing the Republican’s case.
If the Department of Agriculture had concerns about a conflict of interest, Associate Judge Rowan Wilson noted that there were a number of less restrictive options available to it before broadly changing its policy.
“Legitimate interests alone do not make a rule constitutional,” Wilson wrote, emphasizing that “such conflicts could be — and routinely are — dealt with by recusal rules, such as those that apply to judges.”
Jane Briggs, a spokeswoman for the union, said in an email that she took heart in “the dissents’ thoughtful and vigorous recognition of the First Amendment rights of public employees who wish to serve their communities outside of work, on their own time.”
“We are very disappointed in the result and believe the majority applied an incorrect legal standard,” Briggs added. The union had been represented on appeal by associate counsel Jessica Caggiano.
Wilson scoffed in the dissent meanwhile at what he called the naked assertion by the Agriculture Department that it could not tailor the rule more narrowly.
Rather than offer any additional evidence, Wilson emphasized that the department brazenly claimed in its appellate briefing that it need not “identify a ‘real’ conflict with particularity,” since the policy change is “grounded … in the appearance of conflict.”
“To the contrary,” Wilson continued, “‘a “reasonable” burden on expression requires a justification far stronger than mere speculation about serious harms and has since resulted in a rule that restricts inspectors from campaigning for and holding a range of elected offices.’”
Wilson said he would reverse because “government employees do not ‘relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest’ upon entering public service.”
In addition to the opinion of Judge Wilson, the unsigned order Tuesday includes a separate dissent by Associate Judge Jenny Rivera.
After a 34-year career at the Department of Agriculture inspecting milk plants, Kulzer was re-elected in 2017 to another two-year term as a Lewis County legislator.
Kulzer did not return an email seeking comment.
Representatives for the New York Department of Agriculture and the New York Attorney General’s Office did not return emails seeking comment.